EU tells Facebook and Twitter: Obey us or we'll start regulating

Another day, another shot fired at American e-megacorps

The EU Commission has fired a shot across Facebook and Twitter's bows, having issued a proclamation decreeing that "social media platforms" must do more to remove "illegal content inciting hatred, violence and terrorism online".

Although what is said in the EU proclamation is nothing new – indeed, in the UK, the measures proposed by the EU's talking heads have been standard practice for years – what matters here is not what is being said publicly, but instead the threat of what might happen unless Facebook appeases the bloc's leaders.

The EU said that platforms should appoint dedicated points of contact for police forces and other State agencies to talk to about illegal content; appoint trusted content moderators ("flaggers", in EU-ese); and invest in "automatic detection technologies". In addition, illegal content should be deleted within "specific timeframes".

All straightforward; nothing new there, at least from the British perspective. Yet the threat is in the EU's later words: "Today's communication is a first step and follow-up initiatives will depend on the online platforms' actions to proactively implement the guidelines. The Commission will carefully monitor progress made by the online platforms over the next months and assess whether additional measures are needed."

Translation: bend the knee to us or we will harm your business with new laws targeting you.

Just to hammer home that particular point, EU commissioner Vera Jourova added in a statement: "The rule of law applies online just as much as offline. We cannot accept a digital Wild West, and we must act. The code of conduct I agreed with Facebook, Twitter, Google and Microsoft shows that a self-regulatory approach can serve as a good example and can lead to results. However, if the tech companies don't deliver, we will do it."

Cyberlaw expert Graham Smith of London law firm Bird & Bird was unimpressed with the EU proclamation, pointing out that it "would institutionalise this kind of process for many different kinds of unlawfulness, including civil matters such as defamation where the government does not initiate the removal request".

He continued: "It is hugely reliant on the 'trusted flagger' system, but there is little to ensure that trusted flaggers make good decisions. A law enforcement authority is not a court. Most of the safeguards are post-notice and post-removal and consist of procedures to be implemented by the platforms. It is largely a system of removal by default with no prior independent scrutiny of a decision to notify."

In addition, the proclamation as worded appears to break Article 15 of the EU E-Commerce Directive, according to Smith, who points out that the EU's own rules "prohibit platforms from having general monitoring obligations imposed upon them".

The EU has largely defined its relationship with big e-businesses through the medium of long, drawn-out legal processes over the last couple of decades. These, including the Microsoft antitrust case, the ongoing Google wrangles and now this, are intended as much as a chance for the EU to flex its regulatory muscles as to reign in the worst excesses of the American companies that dominate today's consumer-facing World Wide Web.

Both Facebook and Twitter have been dogged by scandal after scandal in recent years, including serving as platforms for Russian disinformation campaigns during last year's US elections.

The EU also recently threatened to tax the turnover of Facebook and Google, in response to the amount of tax paid by the two American multinationals. It seems that Brussels is rapidly running through its playbook of ways to get foreign companies to sit up and pay attention. ®

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