A Conversation With EU Parliament Member Marietje Schaake About Digital Platforms And Regulation, Part II

from the the-view-from-the-EU dept

Yesterday we published Part I of Danish journalist/author and Cato Institute Fellow Flemming Rose's very interesting conversation with Dutch MEP Marietje Schaake concerning questions around internet platforms and regulation. This is the second and final part of that conversation.

FR: I want to focus on the small players. People concerned about regulation say that if you only focus on the big players like Facebook, Google or Twitter and how to regulate them, you will make it very difficult for the small players to stay in the market because transaction costs and other costs connected to regulation will kill the small companies. Regulation becomes a way to lock in the existing regime and market shares because it takes so many resources and so much money to stay in the market and compete. And new companies will never be able to enter the market. What do say to that argument?

MS: It depends on how the regulations are made but it is a real risk. It is the risk of GDPR (general data protection regulation), and with filtering as suggested now. The size of a company is always a way to assess whether there is a problem, and I think we should do the same with these regulations so that there could be a progressive liability depending on how big the company is or there could be some kind of mechanism that would help small or medium size companies to deal with these requirements. Indeed, it is true that for companies that have billions of euros or dollars of revenue, it's easy to deploy lots of people. A representative of Google yesterday (at a conference in the European Parliament) said they have 10,000 people working on content moderation. Those are extraordinary figures, and they are proportionate because of the big the impact of these companies, but if you are a small company you may not be able to do it, and this is always an issue. It's not the first time we have been dealing with this. With every regulation the question is how hard it is for small and medium enterprises.

FR: The challenge or threat from misinformation is also playing a big role in the debate about regulation and liability. We will soon have an election in Denmark. Sweden recently had an election where there was a big focus on misinformation, but it turns out that misinformation doesn't work as well in Denmark as in the US or some other countries because the public is more resilient. Why not focus more on resilience and less on regulation so people have a choice? We are up against human nature, these things are triggered by tribalism and other human characteristics. To counter it you need education, media pluralism, and so on.

MS: I think you need to focus on both. First, what is choice if you have a few near monopolies dominating the market? Second, how much can we expect from citizens? If you look at the terms of service for a common digital provider that you and I use, they are quite lengthy. Is that a choice for a consumer? I think it's nonsense. That's one thing. Moreover, we are lucky because we are from countries where basic trust is relatively high, media pluralism exists, there are many political parties, and our governments will be committed to investing in education and media pluralism, knock on wood. How will this play out in a country like Italy where basic trust is lower and where there is less media pluralism, how are you ever going to overcome this with big tech, so I think there is a sufficient risk if you look at the entire European Union, Hungary and other countries, that governments will not commit resources to what is right and they will create the kind of resilience that our societies already have. In the Netherlands trust in the media is among the highest, and it's probably also because of a certain quality of life and certain kind of freedom that people have enjoyed for a long time. Even in our country you see a lot of anti-system political parties rise, so it's not a given that this balance will continue forever because it requires public resources to be spend on media and other factors. So I think both are very important and I don't want to suggest that we should not involve people but I don't know if we can expect of the average citizen to have the time and the ability to have access to information it would take to make them resilient enough on their own.

FR: Do you think a version of the German "Facebook law" with the delegation of law enforcement to the digital platforms will make it to the agenda of lawmakers in the European Parliament?

MS: No, I think there are too many flaws in it. It's bad. Some form of responsibility on behalf of companies to take down information will exist, but I hope the law will be the primary tool. The companies will take down content measured against the law with the proper safeguards and proportionality. If there are incentives like big fines to be overtly ambitious in taking down information, that's a risk. But on the other hand, the platforms as private companies already have all the freedom they want to take down any information with a reference to their terms of use. We are assuming that they are going to take the law as guidance, but nothing indicates they will. In fact, Facebook doesn't accept breastfeeding pictures, so they are already setting new social norms. A new generation may grow up thinking breastfeeding is obscene. The platforms are already regulating speech, and people who are scared about regulation should understand that it is Mark Zuckerberg who is regulating speech right now.

FR: Recently the EU praised the Code of Conduct to fight hate speech online that they signed with the tech companies in 2016. A lot of speech has been taken down according to the EU: 89 percent of flagged content within 24 hours in the past year, but my question is: Do we know how much speech has been taken down that should not have been taken down?

MS: No, we don't know.

FR: That will concern those who value free speech. You have the law and you have community standards and then you have a mob mentality, i.e. the people who are complaining most and screaming louder will have their way and they will set the standards. So if you organize people to complain about certain content, it will be taken down to make life easier for Facebook and Twitter and Google.

MS: Yes.

FR: So you agree that it's a concern?

MS: It's a huge concern. If you believe in freedom of expression which I know you do, and I think it's one of the most important rights and so many people have been fighting for it, why will we give it up? Just a little bit of erosion of freedom of expression is a huge danger and therefore to put responsibility on these companies to take down content without a check against the law is a risk, to allow these companies to set their own terms of use that can be at complete odds with the law and also with social norms (consider the restrictions on the breastfeeding, on Italian Renaissance statues as pornographic, or on the photo of a naked girl hit by napalm in Vietnam). Let me give you an example from my own experience. I gave a speech here in parliament, it was a very innocent and clearly political speech, but it was taken down by YouTube. They said it was marked as spam, which I don't believe. I have never posted anything that was labeled spam. What I think happened was that my speech was about banning goods and trade that can be used for torture and the death penalty. I think that the machine flagged torture because torture is bad, but a political debate about torture is not bad. I took a screenshot of the fact that YouTube took it down, posted it on twitter and said "wow!, see what happened", and they were on the phone within two hours, but that's not the experience most people (including the people I represent) will have. That's the danger. We also know examples of Russians having flagged Ukrainian websites and then they were taken down. And if that happens to a political candidate in the last 24 hours before an election it could be decisive, even if the companies say they'll restore it within 24 hours.

FR: I spoke to a representative from one of the tech companies who said that when they consult with German lawyers whether something is legal or not, they will get three different answers from three different lawyers. He said that his company would be willing to do certain things on behalf of the government, but it requires clear rules and today the rules aren't clear.

MS: Right, so now you see incentives coming from the companies as well. It's no longer working for them to take on all these responsibilities whether they are pushed to do so or just asked to do it. The fact that they have to do things is also a consequence of them saying "don't regulate us, we can fix this." I think it's a slippery slope. I don't want to see privatized law enforcement. What if Facebook is bought by Alibaba tomorrow? How happy would we be?

FR: I want to ask you about monopolies, competition and regulation. If you go back to 2007 MySpace was the biggest platform, then it was outcompeted by Facebook. As you say, there are concerns about the way Facebook manages our data and its business model with ads and sensational news driving traffic and getting more eyeballs. But why not let the market sort things out? If there is dissatisfaction with the way Facebook is running their business and our data, why not set up a competing company based on a different business model that will satisfy customers' need?

MS: States don't built companies in Europe.

FR: I was having private companies in mind. Netflix has a subscription model, wouldn't a digital platform like Facebook be able to do the same?

MS: I think it would be difficult now, because there is a lock-in effect. In Europe we are trying to provide people with the ability to take their data out again. If you use gmail for 12 years, your pictures, your correspondence with your family and loved ones, with your boss and colleagues, it could all be in there, and you want to take all those data with you. It's your correspondence, it's private, you may need it for your personal records. You may have filed your taxes and saved your returns and receipts in the cloud. If you are not able to move that data to another place, then competition exist only in theory. Also, if you look at Facebook, almost everybody is on Facebook now. For somebody else to start from scratch and reach everybody is very difficult. It's not impossible but it's difficult. And for those models to make money the question is how much are customers willing to pay as required by the subscription model?

Facebook and Google already have so much data about us. Even if I am not on Facebook, but all my friends are, then a sketch of my identity emerges because I am the empty spot between everybody else. If people start posting pictures of a birthday party with the 10 people who are on Facebook and the one person that is not, and then somebody says I can't wait to go on holiday with Marietje or whatever, then at some point it would be clear who I am, even if I am not on the platform, so they already know so much and they already has access to so much data about people's behaviour that effectively it will be very hard for any competitor to get close, and we have seen it in practice. Why hasn't there been more competition?

FR: Do you compare notes with US lawmakers on this? And do you see that your positions are getting closer to one another?

MS: Yes.

FR: Can you say a bit more about that?

MS: First of all the talk has changed. The Europeans were dismissed as being jealous of US companies and therefore proposing regulations, i.e. we were proposing regulations in order to destroy US competitors. I don't think that's true, but this stereotypical view has been widespread. Also, we were being accused of being too emotional about this, so we were dismissed as being irrational which is quite insulting, but not unusual when Americans look at Europeans. I think we are in a different place now with a privacy law in California, with New York Times editorials about the need for tougher competition regulations, with senators proposing more drastic measures, with organizations like the Center for Humane Technology focusing om time well spent, and with Apple hiring people to focus on privacy issues. Recall also conversations about inequality in San Francisco. We have a flow of topics and conversations that suggest that the excessive outcomes of this platform economy need boundaries. I think this has become more and more accepted. The election of Donald Trump was probably the tipping point. We learned later how Facebook and others had been manipulated.

FR: You said that the problem with these companies is that they have become so powerful and therefore we need to regulate them. Is the line between public and private as blurred in Europe compared to the US? You focus on power no matter whether it's the government or a private company when it comes to protection of free speech, while in the US the First Amendment exclusively deals with the government. Do you see that as a fundamental distinction between Europe and the US?

MS: There are more articulated limitations on speech in Europe: for example, Holocaust denial, hate speech and other forms of expression may be prohibited by law. I think there is another context here that matters. Americans in general trust private companies more than they trust the government, and in Europe roughly speaking it's the other way round, so intuitively most people in Europe would prefer safeguards coming from law than trusting the market to regulate itself. That might be more important than the line between private and public and the First Amendment compared to European free speech doctrine.

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Filed Under: eu, eu parliament, flemming rose, free speech, intermediary liability, internet platforms, marietje schaake, regulations