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Gregor Kleinknecht discusses social media platforms and regulation in Discover Germany

  • February 13, 2019
  • By Gregor Kleinknecht, Partner

Keeping checks on Big Brother

Sometimes, unfortunately, it takes incidents as tragic and avoidable as the suicide of teenager Molly Russell after her exposure to images of self-harm on Instagram to make us pause and think, and to spur government into action.  A couple of months ago, I wrote in this column about the dangers of misinformation and fake news on social media.  Now, social media is making negative headlines again; this time in the context of harmful content.  Harm caused online can take many different forms.  It was also only last week that Katie Price went public to tell us that her son Harvey, who has multiple disabilities, had been a repeated victim of “horrific” online trolling and abuse; many politicians and public figures have now simply switched their online accounts off to protect their mental health and well-being.

Think back for a moment: it is only some 10 years or so ago that social media really established itself in our lives, back then on the promise of being a force for good, as bringing people together, as a great democratising tool.  Things have changed.  Everything we do and say online now is monitored, measured, analysed and manipulated to an extent and with a perfection that would make the old East German Stasi turn pale with envy.  We now use terms such as “surveillance capitalism”, while parts of the internet have become havens for hate speech, platforms for extremism and election interference, and a wave of illiberal populism is undermining Western democracies, using those same digital platforms.

It comes as little surprise then that politicians are considering ways again to regulate social media companies.  The notion is starting to establish itself that these companies bear responsibility for the content they publish and that they owe a legal duty of care to their users, in particular, to children, young people and vulnerable adults.  This is a concept endorsed by Anne Longfield, the children’s commissioner for England.  Suicide prevention minister Jackie Doyle-Price made it clear that, if social media platforms don’t step up to the plate, the government would take legal powers to make sure they do; and that “nothing is off the table”.

At the moment, social media platforms still largely operate on the basis of self-regulation.  They set their own rules about what is or isn’t acceptable online (in their view) and, if somebody breaks the rules, it is up to the social media firms themselves to act and remove the offending material.  Sometimes this works; all too often it does not, as I know all too well from my own legal practice.  In view of the experience to date, culture secretary Jeremy Wright declared that “the era of self-regulation of the internet is coming to an end”, as the government is preparing to publish plans for the future of internet regulation later this month.  The Labour opposition has indicated that it would establish an independent standalone internet regulator with the power to fine tech companies if it wins the next election; it would also look at breaking up major tech companies with large market share.  Quite how it would do the latter, given that most of them are based in the US, is not quite clear; but what is clear is the developing trend across the political spectrum for more regulation of the internet giants.  Germany’s NetzDG law, enacted at the beginning of 2018, shows how this can be done and that the sky does not fall in if it is done.

In the meantime, You Tube has sought to defend its record on removing inappropriate content.  Facebook’s answer has been to hire Sir Nick Clegg as new lobbying chief (in fairness to him, he acknowledged that Facebook has “undoubtedly made mistakes”); but rather than to spend its money on behind-the-scenes lobbying campaigns and PR exercises, it should simply start cleaning up its act, along with the other social media giants; it sure has enough revenue to do so – no more excuses.  Sir Nick Clegg is promising that Facebook is entering “new phase of reform, responsibility and change”; a lot of people will be looking forward to that, not least Molly Russell’s parents and Katie Price.

Gregor Kleinknecht, Partner

This article was originally published in Discover Germany’s March Issue, and can be accessed here on page 132.

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