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In the balance

Thumbnail image for 800px-Netherlands-4589_-_Lady_of_Justice_&_William_of_Orange_Coat-o-Arms_(12171086413).jpgAs the year gets going, two conflicts look like setting precedents for Internet regulation: Australia's push to require platforms to pay license fees for linking to their articles; and Facebook's pending decision whether to make former president Donald Trump's ban permanent, as Twitter already has.

Facebook has referred Trump's case to its new Oversight Board and asked it to make policy recommendations for political leaders. The Board says it will consider whether Trump's content violated Facebook community standards and "values", and whether its removal respected human rights standards. It expects to report within 90 days; the decision will be binding on Facebook.

On Twitter, Kate Klonick, an assistant professor at St. John's University of Law, who has been following the Oversight Board's creation and development in detail, says the important aspect is not the inevitably polarizing decision itself, but the creation of what she hopes will be a "transparent global process to adjudicate these human rights issues of speech". In a Yale Law Journal articledocumenting the board's history so far, she suggests that it could set a precedent for collaborative governance of private platforms.

Or - and this seems more likely - it could become the place where Facebook dumps the controversial cases where making its own decision gains the company nothing. Trump is arguably one of these. No matter how much money Trump's presidential campaign (which seems unlikely to have any future) netted the company, it surely must be a drop in the ocean of its antitrust suits pending and a politically controversial decision, why *wouldn't* Facebook want to hand it off? Would the company do the same in a case where the company's business model was at stake, though? If it does and the decision goes against Facebook's immediate business interests, will shareholders sue?

Those questions won't be answered for some years. Meanwhile, this initial case will be a milestone in Internet history, as Klonick says. If the board does not create durable principles that can be applied across other countries and political systems, it will have failed. The larger question, however, which is the circulation of deliberate lies and misinformation, is more complex.

For that, letters sent this week by US Congress members Anna Eshoo (D-CA) and Tom Malinowski (D-NJ) may be more germane: they have asked the CEOs of Facebook, Google, YouTube, and Twitter to alter their algorithms to stop promoting conspiracy theories at scale. Facebook has been able to ignore previous complaints it was inciting violence in markets less essential to its bottom line and of less personal significance.

The Australian case is smaller, and kind of a rerun, but still interesting. We noted in September that the Australian government had announced the draft News Media Bargaining Code, a law requiring Google and Facebook (to start with) to negotiate license fees for displaying snippets of news articles. By including YouTube, user postings, and search engine results, Australia hoped to ensure the companies could not avoid the law by shutting down, which was what happened in 2014 when Spain enacted a similar law that caught only Google News. Early reports indicated that its withdrawal resulted in a dramatic loss of traffic to publishers' sites.

However, by 2015, Spain's Association of Newspaper Editor was saying members were reporting just a 12% loss of traffic, and a 2019 assessment argues that in fact the closure (which persists) made little long-term difference to publishers. If this is true, it's unarguably better for publishers not to be dependent on a third-party company to send them traffic out of the goodness of their hearts. The more likely underlying reality, however, is that people have learned to use generic search engines and social media to find news stories - in which case the Australian law could still be damaging to publishers' revenues.

It is, as journalist Michael West points out, exceptionally difficult to tease out what portion of Google's or Facebook's revenues are attributable to news content. West argues that a better solution to those companies' rise is regulating their power and taxing them appropriately; neither Google nor Facebook is in the business of reporting the news and are not in direct competition with the traditional publishers - the biggest of which, in Australia, are owned by Rupert Murdoch and so filled with climate change denial that Murdoch's own son left the company because of it.

In December, Google and Facebook won a compromise that will allow Google to include in the negotiations the value it brings in the form of traffic; limit the data it has to share with publishers; and lower the requirement for platforms to share algorithm changes with the publishers. Prediction: the publishers aren't going to wind up getting much out of this.

For the rest of us, though, the notion that users could be stopped from sharing news links (as Facebook is threatening) should be alarming; open, royalty-free linking, as web inventor Tim Berners-Lee told Bloomberg above, is the fundamental characteristic of the web. We take the web so much for granted now that it's easy to forget that the biggest decision Berners-Lee made, with the backing of his employers at CERN, was to make it open instead of proprietary. The Australian law is the latest attempt to modify that decision. I wish I could say it will never catch on.

Illustrations: Justitia outside the Delft Town Hall, the Netherlands (via Dennis Jarvis at Wikimedia).

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.

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