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BY SANDEEP GOPALAN, OPINION CONTRIBUTOR
Has social media metastasized from a social network into a social menace? And if so, is the harsh medicine of regulation the answer? The available evidence appears to point in the direction of acknowledging the dangers posed by platforms such as Facebook and holding them to account through legal measures.
Consider just a few of Facebook's transgressions:
For example, following horrific human rights abuses against Rohingya Muslims in Myanmar, stoked by hateful messages and fake news on its platform, Facebook commissioned a report by an external organization to look into how its platform was being used in Myanmar. Although the report did find that Facebook ought to have done more to prevent the spread of viral hate speech that dehumanized the Rohingya and incited murderous mobs, it cast a wide swath of blame: prejudices within Burmese society, senior military officials directing violence, lack of education, widespread digital illiteracy and poor enforcement of community standards.
The report's recommendations also reveal a tendency to dilute responsibility - calling for a human rights policy and partnerships with community organizations - when the main problem is a lack of serious investment by Facebook in tackling the problem of hate speech and fake news. The reason for such deflection is simple: A human rights policy posted on the website is cheap, whereas it costs money to employ staff to monitor, identify and remove hateful messages among 20 million Burmese users.
The problem of hate speech, fake news and privacy violations is not limited to the United States or Myanmar. Similar instances have been documented in other countries, including India, Sri Lanka, Malaysia, the Philippines, Brazil and Mexico.
Facebook has betrayed the trust of its users, and unfortunately, many users appear not to care - evidenced by the relatively low number of defections from its customer base despite these high-profile scandals. Even if those who do care pursue class action lawsuits, or complain to regulators, that may not be sufficient to tackle the scale of the menace. The problem is that Facebook's operations have consequences for non-users too - sometimes horrific, as in the case of the Rohingya. So, it is no longer acceptable to leave it to a contractual model of regulation. There are costs imposed on people who are not parties to the contract that justify state intervention.
And that intervention has to be predicated on a fundamental right to privacy. Anything less is a cop-out.
There are good international models. The European General Data Protection Regulation acknowledges that protection "in relation to the processing of personal data is a fundamental right." The Charter of Fundamental Rights of the European Union states that everyone "has the right to respect for his or her private and family life, home and communications," and notes that individuals have the "right of access to data which has been collected concerning him or her, and the right to have it rectified." And, the Treaty on the Functioning of the European Union states that "everyone has the right to the protection of personal data concerning them."
These rights are not just for Europeans. The Universal Declaration of Human Rights proclaims that "no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks." Privacy is recognized as a fundamental right in several countries, including India, Ethiopia, South Africa and Germany.
This fundamental nature of the privacy norm has to underpin regulation and trump social media's interests in selling targeted advertising. Everyone ought to have a right to know what information is being collected about them; to opt out of data collection; to seek removal of personal information; to prevent the sale of personal information; to minimize data collection; to secure handling of personal data.
These rights may not suit Facebook and other social media sites - they might adversely affect the ability to harvest data and sell advertising to large and small businesses - but privacy is too precious a right to be sacrificed at the altar of any company's business model. And faced with an unwillingness to self-regulate, Congress must act.
Sandeep Gopalan is a professor of law and pro vice chancellor for academic innovation at Deakin University in Melbourne, Australia. He previously was co-chairman or vice chairman of American Bar Association committees on aerospace/defense and international transactions, a member of the ABA's immigration commission, and dean of three law schools in Ireland and Australia. He has taught law in four countries and served as a visiting scholar at universities in France and Germany.
Has social media metastasized from a social network into a social menace? And if so, is the harsh medicine of regulation the answer? The available evidence appears to point in the direction of acknowledging the dangers posed by platforms such as Facebook and holding them to account through legal measures.
Consider just a few of Facebook's transgressions:
- Committing privacy violations and compromising the personal information of millions of users (the Cambridge Analytica scandal alone affected 87 million users);
- Enabling Russian operatives to wage misinformation campaigns aimed at influencing the results of the 2016 presidential election;
- Enabling the viral spread of hateful messages directed at particular ethnic, racial or religious groups;
- Reportedly orchestrating campaigns to discredit critics such as billionaire George Soros;
- Enabling mob violence in India, Sri Lanka, Myanmar and other countries through its WhatsApp; and
- Facilitating the spread of fake news in countries such as Brazil, the Philippines and Malaysia.
And when faced with scandals, according to reports, Facebook's approach has been to delay, deflect, deceive, or smear others. It has engaged in "greenwashing" tactics - claiming to conduct independent investigations and then releasing anodyne reports that redirect the blame for consequences.
For example, following horrific human rights abuses against Rohingya Muslims in Myanmar, stoked by hateful messages and fake news on its platform, Facebook commissioned a report by an external organization to look into how its platform was being used in Myanmar. Although the report did find that Facebook ought to have done more to prevent the spread of viral hate speech that dehumanized the Rohingya and incited murderous mobs, it cast a wide swath of blame: prejudices within Burmese society, senior military officials directing violence, lack of education, widespread digital illiteracy and poor enforcement of community standards.
The report's recommendations also reveal a tendency to dilute responsibility - calling for a human rights policy and partnerships with community organizations - when the main problem is a lack of serious investment by Facebook in tackling the problem of hate speech and fake news. The reason for such deflection is simple: A human rights policy posted on the website is cheap, whereas it costs money to employ staff to monitor, identify and remove hateful messages among 20 million Burmese users.
The problem of hate speech, fake news and privacy violations is not limited to the United States or Myanmar. Similar instances have been documented in other countries, including India, Sri Lanka, Malaysia, the Philippines, Brazil and Mexico.
Facebook has betrayed the trust of its users, and unfortunately, many users appear not to care - evidenced by the relatively low number of defections from its customer base despite these high-profile scandals. Even if those who do care pursue class action lawsuits, or complain to regulators, that may not be sufficient to tackle the scale of the menace. The problem is that Facebook's operations have consequences for non-users too - sometimes horrific, as in the case of the Rohingya. So, it is no longer acceptable to leave it to a contractual model of regulation. There are costs imposed on people who are not parties to the contract that justify state intervention.
And that intervention has to be predicated on a fundamental right to privacy. Anything less is a cop-out.
There are good international models. The European General Data Protection Regulation acknowledges that protection "in relation to the processing of personal data is a fundamental right." The Charter of Fundamental Rights of the European Union states that everyone "has the right to respect for his or her private and family life, home and communications," and notes that individuals have the "right of access to data which has been collected concerning him or her, and the right to have it rectified." And, the Treaty on the Functioning of the European Union states that "everyone has the right to the protection of personal data concerning them."
These rights are not just for Europeans. The Universal Declaration of Human Rights proclaims that "no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks." Privacy is recognized as a fundamental right in several countries, including India, Ethiopia, South Africa and Germany.
This fundamental nature of the privacy norm has to underpin regulation and trump social media's interests in selling targeted advertising. Everyone ought to have a right to know what information is being collected about them; to opt out of data collection; to seek removal of personal information; to prevent the sale of personal information; to minimize data collection; to secure handling of personal data.
These rights may not suit Facebook and other social media sites - they might adversely affect the ability to harvest data and sell advertising to large and small businesses - but privacy is too precious a right to be sacrificed at the altar of any company's business model. And faced with an unwillingness to self-regulate, Congress must act.
Sandeep Gopalan is a professor of law and pro vice chancellor for academic innovation at Deakin University in Melbourne, Australia. He previously was co-chairman or vice chairman of American Bar Association committees on aerospace/defense and international transactions, a member of the ABA's immigration commission, and dean of three law schools in Ireland and Australia. He has taught law in four countries and served as a visiting scholar at universities in France and Germany.
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