Internet regulation more difficult than it seems

Former U.S. Secretary of State Hillary Clinton knows a thing or two about difficult negotiating partners. 

So it was perhaps surprising this weekend to hear a woman who once stared down enemies of the state direct some of her strongest public criticism in years to the leadership of social media company Facebook.

“It’s authoritarian,” she said. “I feel like you’re negotiating with a foreign power sometimes.

“This is a global company that has a huge influence in ways that we’re only beginning to understand.”

If Mrs. Clinton found reckoning with an entity of Facebook's size and influence so difficult, one has to wonder about the chances of the Samoan Government to bring it under control.

As the Samoa Observer reported last week the Government is trying to make international companies accountable to Samoan law and to regulate defamatory and disturbing content online (“Social media giants in Govt. sights”).

On first inspection this seems like an impossible task.

But the way social media giants, especially Facebook, are responding to Governments around the world have recently undergone a dramatic change. The long-held view that they lie beyond the scope of national regulation no longer applies.

In fact, the main question surrounding the Government’s proposed social policy should change from whether it is possible to how it should be enacted.

As some recent examples from other countries show, regulating online content for reasons of taste and accuracy is much less straightforward than it seems.

The law would require Facebook - and its other social media cousins, Instagram, Snapchat, Youtube etc. - to register Samoan corporate entities which, in turn, would make them accountable to local laws and regulations regarding defamation.

The intent behind the Government’s policy is commendable.

The spread this week of apparent misinformation about the coronavirus having reached Samoan shores is testament to the capabilities of these platforms to cause panic.

Unlike old media, where information is carefully vetted by professional journalists and editors, social media has no editors.

What pours forth from this lawless environment can often not just be inaccurate but disturbing.

As we saw during the measles epidemic and last year’s scandals relating to the abandonment of newborn babies, shocking visual material is posted online too regularly.

It’s become clear that the companies cannot be relied upon to self-regulate.

For one thing, the task is proving too great.

According to Facebook figures the company banned some three billion newly created fake accounts in just six months last year.

Even if their screening process hits the mark 99 per cent of the time that leaves some 30 million fake accounts.

And the old idea that the internet cannot be regulated is giving way to a new reality.

According to its own figures, Facebook removed 20,000 pieces of material last year in response to requests from Governments.

Instead the company has begun pleading with regulators to set standards for what constitutes appropriate online content.

It's already investing serious time and resources into regulating the content on its websites and its judgement is always going to fall in for criticism.

As the Wall Street Journal put it pithiliy recently the companies’ new message to Governments can be summarised as: “Please regulate us”.

It might seem counter-intuitive but the logic is obvious.

Facebook wants Governments, not its own employees, to make difficult judgement calls.

Samoa is only the latest among a series of national Governments seeking to provide them with a framework.

Germany in 2018 passed a law that would fine Facebook if it failed to take down offensive material within 24 hours.

In the United Kingdom moves are afoot to place a "duty of care" on social media companies who will face legal penalties if they fail to protect their consumers.

The most intriguing recent example, though, comes from Singapore, which passed anti "fake news" legislation giving Government the power to flag and order the correction of content it deems misleading.

That law has been invoked five times since it was passed; each has involved content originating from critics of Government or opposition political parties – something its Government says is just a coincidence.

This week the Government issued its sixth order for a correction, this time about a post critical about the country’s death penalty policy made by the group Lawyers for Liberty.

When the communications Minister, Afamasaga Rico Tupai, unveiled the regulation plans his concern was whether Facebook would take notice of the request. Joining forces with other Pacific states was one suggested means of increasing Samoa’s bargaining power.

But in this new climate it seems that achieving a new regime for online regulation is far from impossible.

Some online content, such as graphic images or incitement to or recording of criminal activity are obvious cut and dried examples of material that should be removed.

Other examples could be considered a grey area.

A new policy for regulating online content needs to be accompanied by a discussion about how we define inappropriate material and in whom we vest the responsibility to have it taken down.

We also need to ask whether existing laws regulating speech in Samoa, including criminal libel legislation, are adequate to cover any such online offences. 

There is a risk that in rushing to the eminently sensible cause of banning the most offensive examples, we might place other less clear-cut forms of expression at risk too.

And if Mrs. Clinton's judgement of Facebook boss Mark Zuckerberg and his company's ethics is correct, it is clear that the obligation to make sure that these nuances and freedoms are respected will fall entirely upon us

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