Canada’s Minister of Heritage Melanie Joly is but the latest political leader to awaken to the new realities of the Internet age. Those Internet giants, the “platforms” or “Internet intermediaries” that provide the interface between consumers and those who create and produce the content that users seek, have been getting a free ride in terms of contributing to content creation while scooping up the lion’s share of the advertising dollars.
The content creators, those who provide the honeypot that the consumer bees flock to, get the crumbs from the table (to mix a metaphor). According to Mme. Joly, it is high time the platforms started to accept some responsibility for the role they play in packaging, selecting and disseminating content, whether entertainment or news.
She is quoted as saying that international tech companies have “not basically accepted they have a clear responsibility” to the countries they operate in, including by promoting and funding cultural content, but also through their role in shaping public debate and discussion. In an exclusive interview with the Toronto Star Joly is reported to have said;
“I think more and more voices around the world are being raised regarding the fact that platforms need to recognize their responsibility, and that while they’re getting a huge piece of the pie of digital advertising revenues, there needs to be an approach to support more trusted local journalism…..The benefits of the digital economy have not been shared equally. Too many creators, journalists, artists have been left behind, and there needs to be a better balance.”
The tech industry and the platforms don’t want to hear this. In country after country around the world, the tech mantra is that as “neutral intermediaries” they cannot be held responsible in any way for the content they index, aggregate, facilitate and provide yet at the same time this content, produced by others through investment and the sweat of the brow, is freely and openly monetized by the platforms. No content, no eyeballs. No eyeballs, no ad dollars. But the platforms themselves provide no or very little original content; what attracts the revenues is content created by others.
Not only do the platforms get most of the upside in the form of advertising dollars when they access legitimate content, such as news sites—the Toronto Star quotes a recent Public Policy Forum report that found that newspaper (daily and community) and TV websites generated just $433 million of the $4.6 billion that was earned in Canada through digital ad sales in 2015—but they also cash in on illegitimate content. When they monetize content that is legal, they argue that they are doing the news sites a service because they are making the site’s content more accessible. When they monetize content that is infringing or illegal, they are quick to evade any responsibility for the content they provide, arguing that they cannot be held responsible for what others put up on the Internet.
In the US, the shield of choice is Section 230 of the Communications Decency Act, a piece of legislation passed in the mid-1990s, when the Internet was in its infancy, and which protected Internet intermediaries from being held liable as publishers for material made available through their platforms. (copyright infringement was not covered by this legislation). As Ruth Vitale, CEO of Creative Future has written;
“Section 230 of the CDA guarantees that these companies cannot be held responsible for spreading disinformation on their platforms…Going further, Section 230 provides immunity from civil liability when crimes are carried out on their platforms, even when they know about those activities or, worse, are profiting from them. Courts have found, for example, that the platforms are not liable when advertisements for prostitution, sex trafficking, or other crimes are posted, hosted, or promoted on them, even when the platforms are complicit in that activity.”
This is a piece of legislation in dire need of reform, a situation highlighted by the immunity Section 230 has provided to the adult content website Backpage, which has profited by turning a blind eye to advertisements on its site promoting child prostitution, among other activities. In light of this situation, the US Congress has just passed new legislation that, if enacted into law, will help curtail these excesses—although many in the tech industry initially fought these changes, and the Electronic Frontier Foundation (EFF) has gone apoplectic, resorting to its usual hyperbole of accusing Congress of “censoring the Internet”.
Despite the flaws of the CDA and Section 230, anti-copyright activists in Canada, led by Michael Geist at the University of Ottawa, think it would be a good idea for Canada to have its own version of Section 230. In fact, although Geist has opposed just about every demand in the area of IP put forward by the US in the NAFTA negotiations and the previous Trans-Pacific Partnership talks (from which the US ultimately withdrew), he has made an exception for Section 230. He has even signed a petition circulated in the US by the EFF/Public Knowledge crowd urging the US to negotiate a Section 230-type blanked exemption for internet intermediaries in NAFTA.
Geist has publically urged the Canadian government to give the US a “win” on this issue. If Canada did so, it could potentially undermine precedents established by the Supreme Court of Canada, such as its decision on Google v Equustek, which held that Google was responsible to de-index global listings in its search engine as required by the British Columbia Court of Appeal, and would be going in the opposite direction to that just taken by the US Congress.
Whether it is hiding behind legal shields to avoid responsibility for propagating and profiting from illegal content, turning a blind eye to wide-scale copyright infringement while facilitating access to copyright-theft sites (and profiting from doing so), propagating fake news, or illegally accessing the personal information of users as has recently been exposed in the Facebook/Cambridge Analytica case, the platforms have a lot to answer for. To this dismal record, add the value gap that has been created by these Internet giants who largely control online music and have become the gateways to professional, respected news gathering and content, reaping most of the revenues in the process. None of this, at the moment, is illegal. The law has been constructed to allow them to behave like this and as a result, they just keep getting bigger and bigger, and doing precisely what they want. When will it stop?
It will only stop when legislators act to restrain this behaviour and adjust our current legal structures to take account of what the Internet giants have become in the 21st Century. The Googles and Facebooks of this world will not like this, and will push back. Maybe instead of fighting tooth and nail against these needed reforms, they should step up and assume some responsibility for the situation that they have benefited from.
Responsibility could include working out some form of revenue sharing with news sites that do all the heavy lifting in terms of news gathering and analysis. It could include fairer revenue sharing formulas with the music industry. It could include taking more pro-active efforts to screen out infringing and pirated content and it could include taking stronger actions to limit access to (and refrain from placing ads on) content that promotes terrorism, sexual exploitation of children, and a host of other clearly illegal activities. It could include accepting responsibility to screen out manipulative and clearly inaccurate sources of “fake news”, and it could include respecting privacy laws that protect users personal information. It could include all of these things instead of hiding behind the fiction that any reasonable restriction on what happens on the Internet constitutes interference with freedom of expression and will “break the Internet”.
The tide is turning, and the behaviour and role of the big Internet platforms is starting to lead to important questions being asked. If the platforms continue to act as if they were a law unto themselves, what is the appropriate role for regulation and legislation? To the Internet platforms I say, start assuming responsibility for your actions or accept the consequences.
This post originally appeared on the Hugh Stephens Blog and is reproduced with permission and thanks
© Hugh Stephens 2018. All Rights Reserved.
We need to balance things carefully: in the early days of the ‘net, most discussions happened on mailing lists and bulletin-boards, and the courts in the US found that any discussion moderated by a human were “publications” of the bulletin-board operator. Clause 230 was in part a response to this, and itself a balancing between free speech and the board operator’s desire to remove illegal speech (child pornography, unlicensed copyright material, etc).
In my opinion, the law should provided a “bright line” for a company such as WordPress to apply to my blog (leafless.ca) so that they can continue to offer the service, but at the same time be protected against, for example, being held responsible if I published a libel against the former Premier, Mr Harris, by accusing him of being responsible for the death of Dudley George.
In a case of that sort, WordPress should not have to detect and take down my accusation, but instead identify myself as the author, for example upon receiving a Norwich order.
Achieving the current state was a very well-known battle in the ‘States, and one that could be overturned in a moment by a legislature acting in good faith, but with little understanding. I hope you can understand my concern that this not happen in Canada.