You might not expect a formerly obscure UK parliamentary committee studying ‘fake news’ to be relevant to access to justice and technology. But download a copy of the House of Commons Digital, Cultural, Media and Sport Committee’s interim report on Disinformation and Fake News to look under some of the stones that lie along the pathways of some of the big technology giants, notably Facebook. This is the committee that the Washington Post – presumably in praise rather than condescension – called ‘a plucky little panel’.
The transatlantic interest is a key indicator of the importance of this report. The UK committee is the one before which, uncomfortable as he was on his little cushion before the equivalent US senate version, Facebook CEO Mark Zuckerberg refused to testify. At stake in the US and UK investigations are some pretty fundamental points about democracy, including ‘fake news’, Russian interference, data harvesting and abuse and meddling in the political affairs in a range of countries from small West Indian States to Argentina.
All this is, however, is groundswell from the great ocean of political affairs and continues to generate acres of mainstream media copy and political attention. The big issue from the report for those interested in technology and access to justice is the chipping away of the notion of Facebook as a neutral platform which can justify adherence to minimal regulatory or legal standards – and one which can be safely used to create communities of interest. Thus, it joins the campaigns of those against Airbnb in, for example, Paris or Barcelona or Uber’s battles against regulation from Seattle to Brazil. These, it begins to be clear, represent no sparkling business models but time-honoured attempts to get a business advantage by dodging regulation and legal controls.
The UK committee rejected ‘fake news’ as a helpful concept and preferred the blunter disinformation or misinformation. ’We are faced with a crisis concerning the use of data, the manipulation of our data, and the targeting of pernicious views. In particular, we heard evidence of Russian state-sponsored attempts to influence elections in the US and the UK through social media, of the efforts of private companies to do the same, and of law-breaking by certain Leave campaign groups in the UK’s EU Referendum in their use of social media. In this rapidly changing digital world, our existing legal framework is no longer fit for purpose.’
Facebook is the number one villain of the report though there are others (including many concerned with the campaign for the UK to leave the European Union): ‘The globalised nature of social media creates challenges for regulators. In evidence Facebook did not accept their responsibilities to identify or prevent illegal election campaign activity from overseas jurisdictions. In the context of outside interference in elections, this position is unsustainable and Facebook, and other platforms, must begin to take responsibility for the way in which their platforms are used.’
Out goes any notion of Facebook as a neutral broker: ‘We recommend that a new category of tech company is formulated, which tightens tech companies’ liabilities, and which is not necessarily either a “platform” or a “publisher’”. Regulation should have teeth with ‘clear legal liability for the tech companies to act against harmful and illegal content on their platforms. This should include both content that has been referred to them for takedown by their users, and other content that should have been easy for the tech companies to identify for themselves. In these cases, failure to act on behalf of the tech companies could leave them open to legal proceedings launched either by a public regulator, and/or by individuals or organisations who have suffered as a result of this content being freely disseminated on a social media platform.’
The House of Commons committee – generally a rather uneven form of political animal – delivers a bite that reflects well on its chair, one-time advertising man Damian Collins: ‘Tech companies are not passive platforms on which users input content; they reward what is most engaging, because engagement is part of their business model and their growth strategy. They have profited greatly by using this model. This manipulation of the sites by tech companies must be made more transparent. Facebook has all of the information. Those outside of the company have none of it, unless Facebook chooses to release it. Facebook was reluctant to share information with the Committee, which does not bode well for future transparency We ask, once more, for Mr Zuckerberg to come to the Committee to answer the many outstanding questions to which Facebook has not responded adequately, to date.’
And why would Facebook care about a report from a previously obscure Parliamentary committee of a country which, on one account, has just voted for international irrelevance? Well, maybe because the report contributed to an unprecedented fall in the value of Facebook’s stock (‘the most dramatic share price decline of any company in US stock market history’) and a considerably greater decline in its reputation. Facebook is not a neutral information platform: it is a data harvesting and advertising medium. It may be just as well that the code for co-operation with the large commercial tech interests in the access to justice world is ‘sleeping with google’ rather than ‘bunking up with Facebook’.