The scale and scope of digital titans means they touch the lives of almost every citizen, business and media organisation. ComScore – an online measurement firm – reported in 2017 that smartphone users’ favourite app accounts for half of all time spent on apps, while users top ten account for almost the entirety. Facebook and Google account for 8/10 of the most used mobile apps in the US. Such power means that a tweak to a news feed algorithm here, or a change to a platform policy there, can have a dramatic impact on other businesses and publishers in their orbit.
Like newspapers, radio and television companies before them, search and social platforms are attention businesses. But while established publishers take responsibility for the content they host – through shared editorial codes, spectrum based regulation and primary liability for publication – the tech platforms face much weaker standards of liability.
Global tech platforms do not have transparent editorial codes, nor do they have established cultural or public interest norms which their users understand. Legally, they are exempt from most primary publishing liabilities, thanks to exemptions in the EU eCommerce directive and s230 of the Communications Decency Act. These platforms have experienced rapid user growth, enabling the collection of vast swathes of personal data. This data is processed to create intelligence, which is then used to address advertising to citizens on any device, at any time of the day. Converging multiple data sets enables perfect sight of user data, and the ability to expand into new markets with relative ease.
For traditional publishers, content regulation is supplemented by the transparent placement of advertising, linking the brand values of the advertiser with the environment in which they appear. In a pure programmatic world of online platforms, advertising is often disconnected from the content it funds, meaning that advertisers can’t audit where adverts appear, making it harder to hold platforms to account. The case for accountability is not just moral, it is financial too. The media agency WPP has published research suggesting that almost a quarter of global digital ad spend – $16.4bn – was lost to ad fraud in 2017.
Debates about platform regulation that focus on changing the legal framework around liability are often pushed back with the argument that any change would hamper innovation. But equally, an outdated legal framework, that relies on ad hoc political interventions to drive the tech platforms to take action, does not provide the certainty or clarity that potential new entrants to the market would need to build solutions and approaches for the long term.
After two years of company representatives abdicating responsibility, we have woken from the dream of tech utopianism to realise that key institutions of democracy are under threat. Now we are awake, the question is what to do about the power that has accrued whilst we slumbered?
First, we have become much more aware of the problems posed by hate speech, bullying, trolling, terrorism, fake news and misinformation. While letters from Select Committee Chairs to CEOs and ad hoc Government interventions provide some accountability, they are sticking plasters on a bigger problem. A transparent, accountable legal framework is essential.
Second, the Information Commissioner and Shadow Digital Minister are right to focus on reform of the regulation of election and political advertising. Using 98 data points to sell intelligence that could sway a swing seat is a qualitatively different transaction to getting people interested in buying a new Ford Focus. The law needs to treat them as such.
Third, search and social platforms should be included within the media plurality framework to assess the impact of platform policies and algorithm changes on the media that citizens consume. This need is made more urgent by the emergence of new forms of media delivery, such as AI powered audible devices like Google Home or Amazon Echo.
Fourth, in the context of tackling fake news and misinformation, advertisers – including the Government – should demand to know where every impression they buy on search and social platforms lands. This should not be seen as an optional cost of doing business that only responsible advertisers are expected to absorb, but in relation to all advertising that is traded programmatically.
Fifth, the Government should recognise that being pro-tech doesn’t necessarily mean being pro-tech takeover.
As the author and technologist Ben Thompson has written, “networks are the monopoly makers of the Internet era… when it comes to the Internet, the single most effective tool in antitrust regulation is keeping social networks in separate competitive companies.” German and Australian policy-makers have taken the lead on this issue.
Sixth, we need a longer-term debate about the system of media regulation that governs a world that is decreasingly reliant on spectrum, and increasingly reliant on intellectual property flows. The objective should be the creation of a regulatory environment that enables shareholder returns, whilst empowering citizens in a rich, informed democracy.
Peter Thiel recently told a friend, who was thinking about running for Governor of California, that he should be able to answer the question, “Why is tech good for the average person in California?” It can’t be that ‘it’s making us more connected’, or that ‘it’s going to cure all diseases’. Thiel said he wasn’t able to come up with an answer, and I couldn’t come up with one, either”.
We used to stand aside as Silicon Valley built the new world in front of us, thinking they had all the answers. Now we realise that they are human after all, it’s time we mere mortals stepped in.