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Can Governments Wrestle Power Back From Big Tech?

Worldwide, regulators are dealing with ‘the battle of our time’

Credit: erhui1979/DigitalVision Vectors/Getty

On September 10, 2015, a small crowd gathered outside a refugee reception center in Berlin. In front of a pink-brick building, Germany’s chancellor, Angela Merkel, leaned into a huddle of media microphones and began to talk about an historic refugee policy that would welcome nearly one million asylum seekers in that year alone.

Anas Modamani was not the only refugee to take a selfie with Merkel that day, but his was the only photo to become a target for trolls on social media. The image of Merkel smiling in her pale blue blazer, and Modamani posing in a khaki jacket, was attached to fake news stories that exploded across Facebook. He was branded one of the suicide bombers in the 2016 Brussels bombings, and then labeled a perpetrator in the Berlin Christmas market attack. Social media turned him into a terrorist, but Facebook refused to take down the photo because it did not violate community standards.

It was just after Christmas when Modamani called lawyer Chan-jo Jun for help. For Jun, this was a rare case, not because Modamani was a victim of fake news — there were plenty out there — but because he was willing to speak publicly about how Facebook’s policies had affected his life. “In Germany, if you spread facts about a person that you cannot prove to be true, then you are committing a crime,” says Jun, from his office in Würzburg, Germany. “In the U.S., the victim has to prove you were acting in bad faith.”

“Do we want to be governed by our constitution or by community standards? If we want to be governed by the constitution, it has to be enforceable.”

The pair took Facebook to court in Germany, hoping to force the platform to actively find and delete false posts about Modamani and others like him, and not just wait for users to report them.

“What became apparent was that Facebook did not care about national law,” says Jun. The lawyer had been watching the platform try to set up its own legal system to evade national laws, so he wanted this case to ask bigger questions. “Do we want to be governed by our constitution or by community standards? If we want to be governed by the constitution, it has to be enforceable,” he says.

Fake and distorted news online is a complex issue for countries from India to the U.S. “This is not just my problem. It’s a problem of our time,” Modamani told Al Jazeera. Some people are exploiting social media to promote political views or encourage anti-minority violence. Over the past year, fake news has been linked to election manipulation in the United States, anti-refugee attacks in Germany, and anti-Muslim violence in Sri Lanka.

Social media doesn’t create these problems, but instead, can be manipulated to amplify existing divisions. After rumors on Facebook caused Sri Lankan Buddhists to trash local Muslim businesses, an adviser to Sri Lanka’s President told the New York Times: “We don’t completely blame Facebook. The germs are ours, but Facebook is the wind.”

Back in Germany, Modamani’s picture was used to foment anger towards Angela Merkel for her refugee policy. Although the court decided that Modamani had been a victim of defamation, it said Facebook had not created the illegal content so it could not be blamed. Modamani lost his case. “It became apparent that the laws we had were just not sufficient,” says Jun.

When Mark Zuckerberg created the website FaceMash in 2004, to compare the “hotness” of his fellow Harvard students, he couldn’t have known that 15 years later he would wield influence over two billion people. Today, the website that evolved into Facebook has more active users than populations of the three biggest countries combined.

With a quarter of the globe using his site, the scale of Zuckerberg’s influence is making governments nervous. Facebook has effectively become its own online nation, with its own sense of what’s right and its own process for enforcing justice. Zuckerberg is not alone in this new world of online sovereignty; there’s also Jack Dorsey at Twitter, Susan Wojcicki at YouTube, and Steve Huffman at Reddit.

These Silicon Valley CEOs have been setting their own boundaries for political speech that are often out of step with national attitudes. In response, throughout 2018, governments have been trying to rein in social media platforms, emphasizing that they do not exist outside the law.

For the first time, multiple countries are now considering social media regulation — a step that could overhaul internet freedom as we know it.

Germany has become a front-runner. In an effort against online hate speech and fake news, the government implemented the Network Enforcement Act (NetzDG) law in January, 2018. Aimed at Facebook, Twitter, and YouTube, the legislation requires social networks to actively remove illegal posts or face a fine of up to €50 million.

Without an equivalent to the first amendment, Europeans have long accepted more limits to free speech than Americans. Yet even U.S. politicians have started talking about regulation.

“If Modamani took his case to court today, it probably would have a different outcome,” says Jun. “But most of all, it probably wouldn’t be necessary to take it to court.” NetzDG would have enabled him to submit a special form to Facebook, requesting that any illegal content be taken down.

Now, other countries might follow Germany’s lead. For French President Emmanuel Macron, regulation is the obvious answer. “If we do not regulate the internet,” he said in November, “there is the risk that the foundations of democracy will be shaken.” British Prime Minister Theresa May has talked of social media platforms being “exploited and abused.” Her government was ready to look at the “legal liability that social media companies have for the content shared on their sites,” she said.

Without an equivalent to the first amendment, Europeans have long accepted more limits to free speech than Americans.

Yet even U.S. politicians have started talking about regulation. Democrat Mark Warner has been a firm advocate, saying: “I think there is a high chance that people realize that the days of the wild, wild west are over, that there needs to be some guardrails.” When keen tweeter President Donald Trump was asked if he would consider working with Democrats on social media regulation, he replied cautiously: “I would do that, yeah. I would look at that.”

One of the biggest challenges legislators face when regulating social media is their citizens’ attitudes toward free speech. In 2017, polling company GlobeScan asked people from 15 countries to respond to this statement: “The internet should never be regulated by any government anywhere.” Answers varied hugely depending on where respondents lived. In the U.S., 61 percent either agreed or somewhat agreed with that statement. In the U.K., that number slipped to 46 percent — higher only than China at 33 percent.

Brittan Heller, former director for technology and society at the Anti-Defamation League, describes herself as Jane Doe in one of America’s first cyber harassment lawsuits back in 2007. When she turned down a date with a classmate, false allegations and doctored photos started being posted to an online message board. She ignored it until she started being rejected for jobs based on results that came up in searches for her name, then she decided to sue the message board.

“We filed the suit to see if an average person could use the law to get this type of behavior to stop,” she says. “The answer was immediately no.”

But Heller was worried about silencing speech online, so instead of pursuing the case to the Supreme Court, she settled, choosing to work with the message board to develop its terms of service. “I wanted to make sure this would never happen again, at least on their platform,” she says.

Even after her experience, Heller does not believe governments should dictate rules to tech companies. “I’m an American, so I have a particular point of view towards this,” she says.

Attitudes like hers would make social media regulation harder in the U.S. than in Germany, where, because of their history in WWII, Germans accept strict laws against hate speech, Holocaust denial, and the use of Hitler salutes or swastikas.

But this does not mean Germans are uncritical of their new social media law. Instead, according to critics, it has inspired companies to adopt a “delete if in doubt” attitude. Lawyer Joachim Steinhoefel represents people who believe their Facebook posts have been unjustly deleted under NetzDG. He says: “The severe and unconstitutional fines in the NetzDG cause over-blocking and thus massive restrictions of free speech.”

For Heller, it’s too early to judge Germany’s success. “I’m reserving my opinion until I see a full assessment on its impact on freedom of expression,” she says.

Countries worldwide are waiting for more indication of Germany’s success before rolling out their own versions of NetzDG. National laws applied to a global internet risk creating the “splinternet” — a fractured web, divided along countries’ borders. But with such divergent attitudes to internet freedom, national governments may feel the splinternet is the only way they can regain control in this very modern power struggle.

British Journalist. Mostly human rights in Europe and the Middle East. Working with @Guardian @Reuters @BBC etc

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