The end of the Internet free-for-all is nigh. Or so we are told, again and again. Big technology companies need – and even want – regulation; yet fears of stifling freedom of speech has made it a political hot potato.
Debate about regulation has been raging since the internet began. Technology companies scored an early victory with Section 230 of the Communications Decency Act in 1996. This says: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”. Big tech has used this to argue they are simply platforms delivering the views and content of their users. Therefore they are not publishers of content and are not responsible for it.
However, 1996 was a different time; Mark Zuckerberg was twelve, one of the most popular songs was the Macarena and the Nintendo 64 was released. Social media did not exist. It would be another 8 years until Facebook was founded, 10 until Twitter, and 11 years before the iPhone.
The idea tech giants are not publishers is antiquated. The assertion they do not exert editorial control over the content on their websites has been definitively debunked by their own actions.
Maybe this was once the case, but over time tech companies have shown an increasing willingness to review and remove content. It started with advertisers complaining their adverts were appearing alongside terrorist videos and then came hate speech, cyber bullying, data misuse and now conspiracy theories and fake news. Each time, tech companies have responded reactively and only looked to fix the problem once it became impossible, and financially damaging, to continue ignoring it.
The prevalence of anonymous users also poses a major stumbling block to anti-regulation campaigners. If users, rather than tech companies, are supposed to be liable for any content they post, then there has to be a way for individuals whose rights have been breached to identify them.
Big tech has demonstrated it cannot effectively self-regulate. It’s positive that tech leaders are finally supporting the call for regulation but this cannot be done on their own terms. Recent actions following the Capitol riots to remove thousands of accounts – including high profile ones – highlight the lack of independent and consistent processes for closing accounts, making editorial decisions, removing content and appeals.
Section 230, developed decades ago, has created a toxic online environment that has translated into the real world and needs healing. Hate speech, cyber-bullying and fake news are all threatening the vital organs of a healthy democracy.
This is a far cry from a call for tough regulation across the board. Rules must be considered and measured. Freedom of expression must be the cornerstone of policy, however, the luxury of that freedom comes with a responsibility to ensure those statements do not pose a greater risk to functioning democracies. This requires a level of accountability from tech giants and oversight from governments across the globe.
As we’ve seen with the regulation of data and privacy, countries will pursue their own regulations according to their traditions. We are already seeing this with the Online Harms Bill in the UK, the DMA and DSA in the EU and the actions being taken by the Australian Government against Facebook. These approaches are all quite different; the UK favours a broad duty of care, the EU is focused on market access and Australia is working on revenue sharing. The end result – for now – will be a patchwork of regulation around the world that creates a difficult compliance situation.
In any patchwork, there will be a loose stitch. There will undoubtedly be loopholes for tech companies to crawl through to minimise the global impact of regulations. There is no panacea for this and policymakers must constantly stay abreast of the ever-changing tech landscape. The hangover of Section 230 has lasted too long and its impacts have been far reaching. For a robust future, regulation can not be allowed to lag decades behind.