Big Tech: the true arbiter of free speech?

Big Tech: The True Arbiter of Free Speech

Our Chief Reporter delves into the regulation of Big Tech and the UK’s proposed Online Safety legislation.

Phoebe Sennett

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Big Tech companies, such as Facebook, yield immense power and status in society. A shift is arguably taking place to reign in their powers through increased regulation; one example being Facebook’s very own Oversight Board and the UK’s introduction of the Online Safety Bill. 

What is the Oversight Board?

The Oversight Board, otherwise known as the ‘Supreme Court of Facebook,’ is an independent board that will consist of 40 experts; including the former Prime Minister of Denmark. Its role will be to oversee all content on Facebook, and the board will have the ability to form its own precedent and case law, much like the Supreme Court. As stated on their website, it was formed to independently “support people’s rights to free expression” and to “ensure that those rights are being adequately respected.”  Despite being set up to help Facebook distance itself away from any decisions around content control moderation, its actual autonomy is disputed due to it being funded by a $130 billion trust set up by Facebook. 

The Board’s powers

Donald Trump’s recent suspension from Facebook and Instagram on 7 January 2021 is just one example of the control Big Tech yields over the freedom of expression in the digital era. His suspension was in reaction to him violating Facebook’s policy, in inciting and encouraging violence leading to the riots at the Capitol Building. The decision was later deferred to the Oversight Board, where it was upheld. The Board did comment, however, that Facebook should not be able to impose a permanent ban and that a review of the ruling must take place in six months from the date of the decision. Trump released his own statement, in response to this, citing that his free speech had been taken away from him by “radical left lunatics.” 

The implications on free speech

The question remains as to how Trump will be able to regain access to his accounts and this decision remains primarily one of Facebook’s. Its CEO, Mark Zuckerberg, has since stated that he would defer to the latter’s recommendation to either make the ban permanent or set a timeline for reinstatement.

Fellow governing leaders have strongly criticised the decision, particularly as no clear guidance has been issued by either entity on what actions and/or language amounts to a violation of their policies.  Angela Merkel stated that this ban strongly points to the power of internet platforms over free speech; as it puts the ultimate decision over control back in the hands of the internet giants. Her unease illustrates the contrasting stance that the US and Europe are taking over the regulation of the online world. The US currently allows Big Tech companies to freely police their own sites, through the powers conveyed by s230 of the Communications and Decency Act 1996. In Europe, however, most countries are adhering to a policy of increased market regulation. 

The Online Safety Bill 

By way of example, in the UK there is to be a pivotal shift in the way in which Big Tech and other smaller social media platforms are regulated. The Government recently announced that the Online Safety Bill, due to be enacted in 2021, will seek to impose a statutory duty of care on the various search services and digital platforms who share user-generated content. Ofcom has been nominated as the body to enforce and regulate these internet platforms, and they will have the power to impose a fine of up to £18 million or 10% of the non-compliant company’s annual global turnover (whichever is higher). This landmark legislation, Digital Secretary Oliver Dowden stated, “shows global usher in a new age of accountability for tech.” Those labelled ‘Category 1 services’, such as Facebook, will face additional duties such as the requirement to conduct and publish assessments of their services’ impact on the freedom of speech and their measures in place to mitigate any adverse effects. 

In a report released by Benjamin Garfield, Digital Society: regulating privacy and content online, political advertising and fake news was cited as one of the key areas in need of regulation. Therefore, there is a particular focus on the part of the Category 1 services in the Bill, to regulate content deemed ‘democratically important.’ However, legal experts have critiqued the workability of such a definition when needing to interpret and enforce the law.