AAID’s overarching Leitmotif is that of instilling a general principle of accountability on the internet.
This accountability principle is already well embedded in existing media laws and regulations worldwide.
With the increase in media functions and technological media features of platforms, search engines and social networks it is now a matter of urgency to introduce a similar/ adapted standard for the net.
Relieving private actors from legal constraints online and content liability might have been a defensible stance back in 1996 when the Communications Decency Act (section 230 C) was passed.
This Act instituted a regime of complete immunity governing the whole internet sector for third party generated content and thus arguably allowed the net to grow and become what it is today.
The Act is based on the axiomatic belief that platforms, fora and social media are « mere conduits « of data and should bear no more responsibility for content than postal services or telecom providers.
From a legal point of view the distinction between « publisher » and « editor » on the one side and « mere conduits « on the other formed the theoretical foundation of the Act (which in turn inspired the EU to adopt a somewhat similar regime under the e-commerce Directive for 2000 – with the important difference however that whilst the US Act confers absolute immunity on private actors the Directive only allows relative immunity meaning that the actor may be liable for content after receipt of notice).
Today, some 20 year after the Act the net has developed into a new paradigm completely different and entirely unforeseen back in the late 90’s.
Who would have believed back then that half of the world’s population would so rapidly be connected through mobile devices functioning 24/24 and that almost all communication, knowledge, culture and « information » would be channelled through this network of networks?
Apart from sci-fi nerds this development was completely unpredictable and most certainly so to lawmakers.
The legitimate protection (« immunity ») of the nascent industry back in the early pioneering days is no longer adapted to the current state of affairs.
The legislative clock stopped 20 years ago and in the meantime the world has changed.
The timid and to a large extent fragile and haphazard beginnings of the budding industry have been replaced by giant corporations wielding more economic and informational power than several states.
Their audience is incrementally capturing a second generation of net addicts, uneducated in the basics of « esprit critique » since it is not only law makers that have been taken by surprise, but also our education systems.
In addition to the dominance of these players their function and services have significantly evolved since the days of the Act and the Directive.
It is becoming increasingly difficult (read: impossible) to distinguish between publishing/editorial functions and the simple conduit (facilitation) fiction which laid the theoretical basis of these early day legislative initiatives.
Vertical integration has blurred the lines to such an extent that the distinction is at best artificial: Social media provide news feeds; search engines perform editorial ranking and platforms are increasingly seen as sources of information (e.g. knowledge platforms like Wikipedia and a plethora of news platforms).
The asymmetric legal environment which continues to impose heavy sanctions on classic media combined with the attractiveness of ad placements on « alternative fact audience driven sites » has already accounted for several bankruptcies within the panoply of classic media and this trend will no doubt accelerate over the next couple of years (we are not talking about decades).
In addition, we have sadly already seen how immunity has allowed the scourge of radicalization to erupt all over the world in spite of commitments on behalf of the industry to combat such abuse of their infrastructure.
Imagine if a newspaper or TV station allowed such activities on their « pages ».
Imagine if defamation, harassment, incitement, bullying, fake news and hate speech were peddled by classic media. The world community and the local enforcement agencies would take swift and resolute action and impose sanctions (monetary fines, loss of license and under aggravating circumstances of recidivism even imprisonment of editorial director etc).
No such sanctions are applied against platforms notwithstanding the fact that their impact is exponentially more direct and manipulative than that of classic media (retargeting on the basis of search history, real time data exchanges, echo chambers and cookie technology are tools alien to classic media, yet tools which elevate the impact of the net to dimensions which have never been reached by any other media).
Instead of immunizing platforms to liability these technological developments should augment their liability as compared to classic media.
The overriding question how to protect the right to information (not just freedom of expression) on the internet and information credibility – is becoming more and more urgent.
Freedom of information (i.e. the right to receive information from various sources and the right to receive credible information) is at least as important both at the personal and the societal level as freedom of speech.
It is actually more important for democracy that the ”receiver’s” rights and true ability to receive and access information be protected than it is to the protect the “sender’s ” right to impart and disseminate information.
If nobody listens – if nobody has the ability and the right to listen – freedom of speech serves no purpose (except introvert poetry).
It is essential that the right to receive information be properly defined as a human right in itself and that it be analyzed in all its aspect and dimensions so that appropriate legal definitions and safeguards may be introduced.
In addition to protecting the right to receive information (i.e. free choice of sources and the availability of such sources) credibility is essential.
If content is not credible it simply does not qualify as “information”.
Given the direct correlation between online content and offline behavior information credibility is critical for democracy.
One way of ensuring both credibility and variety of sources is by the application of media regulation to the net.
Existing media liability regulation in different countries may be adapted and modernized to meet the net’s specific environment of third party generated content.
This is not only indispensable for the protection of the quality of “information”, but also in the long term (unfortunately not so long…) for the procurement of a level playing field for classic media.
Strict liability on such media pitted against total absence of net media liability will accelerate the demise of the former (already threatened by sluggish advertising revenues) to the detriment of informational choice, informational freedom and information credibility.
We need to address the questions of advertising and business models and we need to analyze whether failure to regulate ultimately destroys not only freedom of information, but also free speech.
Finally, we need to revisit the sensitive question of information control or consolidation.
When this question was last analyzed it raised strong concerns, but today it is different. Never have so few controlled so much information and the risks to democracy, net neutrality, digital divide, protection of languages and cultural diversity have to be reassessed as a matter of urgency.
Treaty regulation (and law) is obviously just one instrument: Education, government support of national media etc. are other expedients.
One thing is sure: Only concerted action will prevent us from deprivation of our right to information and then who cares about the inaudible and inaccessible soap box speaker who will continue to enjoy his privilege of free speech except that nobody knows.