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Content Regulation: We Need Better, Not More, Transparency

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04/11/2021

Content Regulation: We Need Better, Not More, Transparency

Tech & Innovation Social affairs

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Content Regulation: We Need Better, Not More, Transparency

Author

Théophile Lenoir

Fellow - Misinformation and Digital Policy

Over the past weeks, Facebook (which has now decided to go by Meta) has once again faced intense criticism. Frances Haugen, a former Facebook employee, leaked documents that show how the company failed to act on some of the harms caused by its services, despite internal research identifying the risks. The Facebook Papers point to serious issues, including the company’s awareness of algorithms recommending groups that share conspiracy theories, or its difficulty dealing with disinformation outside the United States. However, over the past three years and especially in Europe, important policy work has been undertaken to strengthen the transparency and accountability of large online platforms. Much of this remains largely ignored in the media coverage of this latest leak.

Policy makers at work since Cambridge Analytica

Once more, Facebook is accused of prioritizing profit over safety and democracy, and of keeping its systems opaque to public scrutiny. It seems, in fact, like not much has changed since Cambridge Analytica. But experts and lawmakers at the European Commission, at the European Parliament and in European Member States have been actively working to find solutions to social media regulation. For example, the Digital Services Act (DSA) imposes a series of requirements that online intermediaries have to meet in order to benefit from the liability exemption regime first put forward by the 2000 e-Commerce Directive. In other words, if online intermediaries do not want to be held responsible for the user-generated content that circulates on their platforms, they have to step up their response to the harmful impact of their services.

Amongst various requirements, the DSA asks that online intermediaries cooperate with competent national authorities to delete illegal content. It also asks all intermediary services to inform their users when content is deleted or to publish reports detailing the types of content that were flagged and deleted. In France, the 2018 law on the manipulation of information also increases transparency, by giving more power to the media regulator, the Conseil supérieur de l'audiovisuel (CSA), to monitor social media platforms and the actions they take to combat disinformation. In September, the CSA published its second report on such actions (available here for French readers).

Improving transparency

On October 25, 2021, when Frances Haugen spoke in front of the UK parliament, she asked for more transparency from social media companies and increased accountability. Yet, Facebook is definitely more transparent than it used to be, at least in some European countries. This has to be pointed out in order to understand how regulation can be improved. Platforms are producing reports that regulators just have to trust - the question is: is this the right form of transparency?

If the Facebook Papers show us anything, it is that Facebook has a trust issue, and that its management does not seem too eager to fix it. We therefore need to create a better form of transparency in order to improve the way platforms tackle illegal and harmful activities online.

We therefore need to create a better form of transparency in order to improve the way platforms tackle illegal and harmful activities online.

Perhaps the most interesting part of the DSA concerns the specific requirements it asks very large platforms to meet (those that have more than 45 million active monthly users). Given the systemic risks these actors pose for society, article 26(1) asks them to evaluate these risks, article 26(2) requires them to estimate the impact of their services on such risks, and article 27 asks them to take action to mitigate these risks and the impact of their services.

This innovative regulatory framework paves the way for a better form of transparency. The next step would be auditing social media. Regulators should have access to internal information in order to evaluate the procedures put in place to assess and tackle risks of dis- and misinformation, hateful speech, addiction, impact on teenage girls, etc. This could then allow civil society and governments to become active participants in the decision making around the grey areas of Internet regulation.

Regulating social media in the United States

Seen through this light, the Facebook Papers tell a very different story, one of a strong divide between Europe and the United States in terms of content policy. From a European perspective, the American debate around social media regulation seems to have focused a lot on the amendment of Section 230, a part of the 1996 Communications Decency Act, which creates a distinction between internet platforms and content producers. It reduces the former’s liability towards user-generated content and, in this sense, is somewhat equivalent to the European e-Commerce Directive.

Culturally, freedom of expression has a different heritage in the United States. The idea that everyone should be free to say what they want is central to American politics (the 1^st Amendment of the Constitution is sacred to most). But the Left and the Right interpret this seemingly simple idea in distinctly different ways. On the one hand, Democrats blame social media for not doing enough to police online speech, while on the other, Republicans accuse them of doing too much, especially with regards to Donald Trump’s content.

The Facebook Papers tell a very different story, one of a strong divide between Europe and the United States in terms of content policy.

In the context of high polarization that defines the American political landscape, the debate focuses all the attention on whether content should be regulated, rather than on how. This does not mean that the US will not regulate social media (the giant platforms are also accused of stifling innovation and competition, a strong argument for both Democrats and Republicans), but that a lot of effort is still needed in order to reach consensus on how to do so. This explains the way Frances Haugen has framed the debate.

To be clear, Europe is not out of the woods yet either. There is still a debate as to whether more power should be given to the EU or to Member States themselves, in order to prevent countries from overusing their power to regulate speech (Poland and Hungary in particular). This might significantly slow down the adoption of the DSA. As in the US, it is likely that antitrust regulation (the DSA’s twin, the Digital Markets Act) will reach consensus first. Calling for better transparency is therefore more essential than ever.

Copyright: ALAIN JOCARD / AFP

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