Is There a Threat to Big Tech Over Censorship of Political Content That Could Force a Retreat?

Is There a Threat to Big Tech Over Censorship of Political Content That Could Force a Retreat?

It is a well-established fact that Facebook, Google, and Twitter all moderate their content at the direction of the Chinese Communist Party in exchange for access to China’s population.

What foreign officials of a variety of political points of view recognized is that while Big Tech may be focusing their editorial practices on the political opposition this month, there is no guarantee that Big Tech won’t focus their editorial practices of the party in power next month.  That’s what happened in Uganda — “justified” or not.  The problem is unseen individuals in Big Tech conference rooms who are making those judgments, and right now they are beyond the reach of those governments to stop the practice.

Poland shows that might not be the case for too much longer.

Sebastian Kaleta, secretary of state at Poland’s Ministry of Justice, said Facebook’s decision to remove Trump’s account was hypocritical, politically motivated and “amounts to censorship”.

He said the draft law prepared by the justice ministry would make it illegal for social media companies to remove posts that did not break Polish law.

“Removing lawful content would directly violate the law, and this will have to be respected by the platforms that operate in Poland,” Kaleta told Rzeczpospolita newspaper.

Violations could be punished by fines and other penalties imposed on the Big Tech companies.  Users who had their accounts suspended would be able to contest the action in a summary proceeding conducted entirely online, with Court decisions to come in only seven days.  Mass removal of user accounts as Twitter and Facebook have done using algorithms to track offending content could result in thousands of such electronic complaints that Big Tech would be required to respond to individually.

There is an initiative underway to adopt an EU-wide regulation that is largely consistent with what Poland is proposing to do.

The Big Tech companies are all publicly traded. That means they have shareholders to whom the Board of Directors owe a fiduciary duty.  Even where large stakeholders control management, the Board of Directors cannot allow business practices that knowingly damage shareholder value simply because the practices coincide with the political and social sensibilities of one or more large stakeholders.  That’s the tradeoff that the “founder” must accept when he/she decides to sell equity interests in the business through regulated stock markets.

This would not change the law in the United States, and it would not create liability for Big Tech from US users in ways that are currently barred by federal law.  But if Big Tech is forced by foreign statutes and Board mandates to allow political views with which it disagrees to be trafficked in its platforms around the world, there will be less support for treating political dissent in the United States differently.

There is an analogous situation that is not that well known to Americans.  While we have First Amendment, and the media enjoys great protection from defamation claims pursuant to Supreme Court decisions, there are no such protections afforded publications in Great Britain.  Publications in Great Britain are regularly sued for defamation and libel for printing stories that include false information which injures the reputation of the person involved.  Much of what has been learned about Christorpher Steele and his “reports” about connections between Donald Trump and Russia became public as a result of a lawsuit for defamation brought against him in British courts, which forced him to answer questions under oath about his actions.

Big Tech operates around the world.  While they may enjoy certain immunities for their actions within the borders of the United States, it seems likely that other places in the world might soon make them less comfortable.

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