How can competition law help to secure freedom of expression on social media?

Digital 9 min read
ARTICLE 19

Facebook, Twitter and Google are now the most prominent fora for individuals to exercise their right to freedom of expression. People around the world rely on these platforms not only for sharing their opinions and views with others, but also as a major source of information about politics and current affairs.

Individuals’ freedom of expression and right to information, however, is currently under threat from these platforms. The platforms have a huge role in deciding what people post, see and share online, through the systems they use to moderate and remove user-produced content on different grounds. These systems, under the standardized Terms or Services (ToS), include grounds aimed at tackling hate speech, misinformation and terrorism, but can also be focused on placating political requirements, or boosting commercial confidence in the platforms.

Individuals have very little say over the ToS and must simply accept them if they want to use the platforms. Although in theory, they can simply refrain from using the platforms, this is often not possible – the ubiquity of social media platforms, and the hold these companies have over the market for these, means there often aren’t viable alternatives for the service or space to engage in debate and receive information that they provide, and engagement with a range of other apps and platforms is predicated on their use. The platforms therefore see no risks in adopting a “take it all or stay out” approach to their terms, while individuals cannot renegotiate or appeal them and are, therefore, at the mercy of the ToS, and any changes made to them.

ToS presently allow companies to act in a manner which fails to comply with international human rights standards. ToS are typically formulated using overly broad and imprecise language that renders their application unpredictable and often seemingly arbitrary, and can mean they are used excessively to censor expression. Enforcement of ToS is obscured from the individual and lacking in sufficient procedural safeguards. Through processes internal to the company, and void of external scrutiny, it is not clear if arbitrators of what is wrong and right according to the ToS are acting on behalf of the commercial interests of their organisations or in the spirit of upholding the fundamental rights of individuals. Furthermore, individuals have no remedy in case of wrongful removal of content.[1]

We believe that, as the power of these companies grows and their unaccountability for these ToS becomes more apparent, this problem must be recognised, and can be dealt not only through international human rights law (and the obligation on companies to respect human rights) but also as an the anti-trust and competition law problem.

What is the purpose of competition law?

Competition is the branch of the law that is in charge of protecting consumer welfare by means of ensuring the proper functioning of free, open and fair markets.

Consumer welfare looks at consumers’ ‘well-being’, based on the benefit they derive from being able to purchase in the market a high volume of goods and services that are of a good quality, a wide variety, and at a competitive price. The ultimate goal of competition rules is to protect and maximise this benefit. Quantity, price, quality, variety, or, in other terms, choice and innovation, are the commonly used parameters by which consumer welfare is normally measured.

Competition law also aims to protect the competitive structure of the market: to keep markets open to new entrants, and fair. To make it a place where companies compete on merits and consumers have choice. This implies, for example, prohibiting companies from making agreements on price and market share, or, for companies that have high level of market power , preventing them from being able to exploit consumers or competitors by imposing commercial clauses that are unfair.

What does competition law have to do with freedom of expression on social media platforms?

The problem of protecting freedom of expression on social media platforms is arguably derived, to a significant extent, from a failure in the relevant market. In a free and competitive market, the existence of abusive ToS would be unsustainable. In a functioning market, individuals would shift to other platforms offering better, friendlier ToS, which protected their expression, in the same way that consumers of any other product shift to producers offering products of a higher quality. After all, the fairness or abusiveness of ToS is ultimately a measure of their quality.

In the social media sector, however, strong network effects mean things do not work this way. The market for social media platforms is currently dominated by a very limited number of companies enjoying dominant or super-dominant position.

This privileged position allows social media companies to impose on individuals ToS that they might not otherwise accept, and which do not sufficiently protect their human rights. Individuals are presented with only two alternatives: either accept the full package of ToS presented to them, or renounce altogether the service they are being offered. The third alternative that a free market would and should normally be able to provide, i.e. switching to other competitors, is not available.

This is where competition law becomes relevant: if the problems of freedom of expression in the market for social media platforms is caused in part by a market failure, the solution should also be found in competition law.

What can competition law do to protect freedom of expression?

There are many mechanisms by which competition law protects the level playing field in the market and the welfare of consumers. Among the most important, competition law prohibits companies enjoying a dominant position in a market from abuse of that position to impose on consumers abusive trading conditions that the company would not have the ability to dictate in a free market. Competition law usually provides for the imposition of financial penalties on companies abusing their dominant position in the market and entitles consumers seek damages from those companies.

ARTICLE 19 believes social media companies can be clearly shown to be abusing their dominant position in the market for social media platforms, through imposing on individuals ToS that unduly restrict their right to freedom of expression,

This abuse results in an unfair and arbitrary reduction of the quality of the product offered to users, where the quality is marked by the degree to which their ToS protect human rights. The effect of the abuse is a substantial reduction of the welfare of consumers, measured in terms of their actual enjoyment of freedom of expression on these platforms. Competition law therefore has a crucial role to play in the protection of free speech on these platforms.

 

Submissions

ARTICLE 19 has presented this policy approach in submissions before the USA Federal Trade Commission (FTC), the Directorate General for Competition of the European Commission (DG COMP) and the Israel Antitrust Authority (‘IAA’), respectively the competition authorities of the United States, the European Union and Israel.

The submission presented before the FTC is available here.

The submission presented before the DG COMP is available here.

The submission presented before the IAA is available here.

 

[1] See ARTICLE 19’s analysis of Twitter, Facebook and YouTube’s ToS.