Does Facebook restrict free speech? What should the government do? | Shen Jung-Chin

2021.04.29
Does Facebook restrict free speech What should the government do Shen Jung Chin

Many Facebook users have felt recently that the platform’s restriction on free speech has been tightening. Many people have seen their comments deleted, received warnings, or banned from hitting the “like” button or sharing a post. Facebook is also deliberately lessening the reach of certain fan groups, causing some people to leave the platform in frustration. This is not the first time Facebook has attracted controversy over the suppression of freedom of speech. In January this year, Facebook suspended the account of then US President Donald Trump after the Capitol Hill protests. In February, in opposition to the Australian government’s legislation, Facebook prohibited the sharing of Australian news and temporarily blocked information related to health, the pandemic and social welfare published by the Australian government.

Facebook has two billion users and controls six of the world’s top ten social networking sites. Its annual revenue exceeds US$70 billion and has a market value equal to the sum of Toyota, General Motor, General Electric, Sony, McDonald’s and Acer. But it has a far smaller number of employees. But Facebook’s challenge to our society is not limited to employment. As often revealed by the Wall Street Journal and the Washington Post, as soon as Facebook identifies a potential competitor, it either copies the competitor’s functions or makes an M&A offer. When Instagram and WhatsApp were first launched, for example, Facebook was much inferior for mobile devices. It responded by first copying Instagram’s photo filter function and introducing Messenger. After realizing that it was not possible to eliminate Instagram, Facebook acquired that competitor altogether. Not only did such an action constitute an anti-competitive behavior under the Sherman Antitrust Act, but it also hurt the pace of innovation in society. Even Microsoft, which was convicted in the largest antitrust lawsuit since the 1980s, once said: “Facebook’s strategy is the same as ours in the past.”

Control of Facebook should be based on its monopoly power

Furthermore, Facebook has always treated user privacy as a trivial matter, selling user information for profit too easily. It, for example, sold information to Cambridge Analytica for the company to manipulate the US election, and shared user information with Huawei. This month, Facebook was hacked, and the data of 553 million users was uploaded onto the Internet for anyone to download. But Facebook refused to notify the victims that their information had been leaked.

To defend Facebook’s monopoly, Mark Zuckerberg, the founder of Facebook, said that only large companies like Facebook could hire 30,000 people to review speeches. This gives Facebook unlimited power to review and block speech. Furthermore, unlike traditional agencies, Facebook can use algorithms to determine which comments can be seen and which comments need to be restricted in their reach. The problem is: Facebook is not a government, so why can it censor speech?

However, at least according to the First Amendment to the US Constitution, it is not illegal for Facebook to censor comments. According to the tradition traceable to John Stuart Mill, the First Amendment to the Constitution guarantees freedom of speech to prevent the government from infringing on people’s freedom and suppress specific comments. It is, therefore, necessary to put in place a system of checks and balances to limit the power of the government. As a private enterprise, Facebook is not involved in the issue of the infringement of free speech. Section 230 of the US Communications Act, in particular, provides legal protection for platform operators. The section stipulates that network service providers are not responsible for third-party content on the platform. It also grants an operator the power to remove malicious content on the platform with good intentions, exempting the operator from legal liability.

In the ideal situation, the restriction of the government’s power to restrict contents is aimed to ensure that everyone has enough freedom to express their comments. The speech market will then fulfill its functions, allowing people to distinguish truths from lies. The problem, however, is that today’s Facebook, as the American legal scholar Lina Khan has said, effectively “functions as a regulatory authority.” When Facebook reaches a certain size, it becomes capable of hindering the functions of the speech market. The belief that Facebook cannot harm freedom of speech is probably at variance with reality.

Facebook is different from the government in the sense that it is not equipped with legal violence to force users to behave in a particular way. Those who are dissatisfied with Facebook can easily leave the platform by, for example, switching to MeWe. The strict restrictions imposed on the government might not be suitable for private companies like Facebook. Therefore, the key lies in whether Facebook has sufficient monopoly power to interfere with the normal operations of the speech market.

As Albert Hirschman, a well-known scholar, once said, apart from “loyalty” and “exit”, there is the third option of “voice”. Protests launched by Facebook users are also an important force that can improve the system. Moreover, due to the network externality of Facebook’s platform, if your relatives and friends are all on Facebook, you will be virtually isolating yourself by leaving it. Therefore, Facebook is different from the traditional speech market hypothesis of the atomized individual. Facebook’s algorithms have also changed the hypotheses of competition in the speech market. Before the market can carry out its functions, algorithms have already carried out the first artificial operation of the screening and sorting of comments, thus interfering with the functions of the speech market.

To address this dilemma, a number of points should be considered. Scholars of constitutional law need to clarify whether the provisions on freedom of speech enshrined in Article 11 of the Constitution of the Republic of China are applicable to platforms such as Facebook. The Fair Trade Commission and the NCC should evaluate the monopoly power of Facebook. Such an evaluation should form the basis of regulation. As for the upcoming Ministry of Digital Development, it can concern itself with the transparency of Facebook’s speech control mechanism. It can also, as suggested by MIT Professor Sinan Aral, enforce the portability and interoperability of everyone’s social media data to achieve effective competition between platforms.

(Shen Jung-Chin is an associate professor at York University in Canada.)

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