Big Tech must beware of big government
Facebook HQ, California (Shutterstock)
In just a fortnight, the New Year will begin with the clear understanding across all governments that this is already a digital decade. As consumers, we utilise products and services created, distributed and consumed through software. As citizens, we share our data with governments and businesses alike. If nothing else has come out of Covid-19’s collection of Track/Test and Trace apps, they have given a heightened sense of our data being collected and used via technology in the service of business and government. For many, that data utilisation has not seemed to be entirely in the service of the individual.
Government has recognised its own need for citizen data, and that consent for this will not be forthcoming if it does not have trust and create transparency. Business, particularly big business, is feeling similar pressure in its data practices, both from citizen activists and the state.
A wind of change may indeed be blowing through the world of Big Tech.
Taking a hammer to crack a nut will not create a lasting solution and inevitably would create new alternatives to the current dominant players. Rather, an adjustment to the impact of the platform economy is needed. This will likely be achieved by an open and transparent approach, using standards and open-source software to build interoperability across platforms. This must inevitably be accompanied by data portability to allow citizen control.
Sophisticated regulators will implement laws impacting business through these mechanisms and influence their own governmental positions by encouraging adoption of these practices across the public sector. A balance between digital and data sovereignty on one side and fair competition on the other will be needed. The state must take the rights and protection of the citizen seriously, while allowing businesses to flourish.
This December, we have seen both the EU and the UK pushing forward with legislation to move a step further in this direction.
Europe’s Digital Markets Act looks at what it means to be a market-dominant player and allows for fines of up to 10 per cent of global turnover, in line with other unfair competition penalties. There will also be a “three strikes and you’re out” provision for repeat offenders. The latter may also be forced to restructure in order to separate parts of the business or be subjected to other remedies proportionate to the infringement. Might this give the European Commission’s Competition Authority the power to break up Big Tech?
The EU will also look at ways to establish which companies in a market effectively hold the role of “gatekeeper” and set the rules of the market. In the EU’s double whammy this week is the Digital Services Act. Notably, any failure to comply with this may be met with fines of up to six times global revenue or turnover.
The timing of all of this is interesting. EU President Ursula von der Leyen reached out to the Biden administration only two weeks ago, offering a “once-in-a-generation” opportunity to collaborate. Meanwhile, the Big Tech companies mainly hail from the US.
Only last week, the UK also created a new Digital Markets Unit as a tech regulator to regulate the Big Tech companies’ activities in the UK. Sitting in the CMA (Competition and Markets Authority), it will enforce the UK’s competition regime with respect to the Big Tech companies.
Historically the UK and Europe, like the US, have managed all consumer content compliance via a “take-down” regime. In Europe this developed from the hosts or platforms being deemed to be a “mere conduit”, rather than being editors with responsibility for third party content on their site. In the US a similar position emanated from the DMCA (Digital Millennium Copyright Act).
Both sets of laws were implemented around 20 years ago. At the time, I worked for an internet service provider, Freeserve, and the process was appropriate to the scale of content at the time. The new legislation in both Europe and the UK is the first overhaul of these rules since that initial set of rules were created. Undoubtedly it is necessary and overdue today, with the scale of social media, user generated content and the platform economy, for a different set of criteria.
On both sides of the Atlantic, laws worked on the basis that platforms were not responsible for the user generated content they facilitated. This will continue to be the case for online news sites, but there will be new responsibilities and requirement for platforms to police user generated content on their sites and across other formats, including apps, marketplaces and games.
On the same day as Europe published its Digital Services Act, the UK published its plans for online safety, through its “online harms” proposals, including fines enforceable by Ofcom. Platforms that fail to “remove and limit the spread of illegal content”, such as child pornography, will be fined up to 10 per cent of global turnover or £18 million, whichever is greater. This Act therefore has significant teeth from the get-go, unlike many past regulations which have only evolved such teeth and impact over a number of years. Ofcom also has the power to block non-compliant services from the UK and to impose criminal sanctions directly upon managers for repeat offences, should fines not be working as a deterrent.
Next up? The UK’s National Data Strategy consultation ended on December 9, following an extended consultation period. The strategy will apparently be released “in due course”, but it can’t come too soon. The Minister of State for Digital and Media, John Whittingdale, described it as “central to this government’s wider ambition for a thriving, fast-growing digital sector in the UK underpinned by public trust”. To achieve trust, the data strategy will need to be a transparent and open one. Offering portability and interoperability will be key.
All of this regulation comes into play at a time when governments are more engaged with Big Tech than ever before, both in their role as regulators of business and as providers of public sector infrastructure and services. This December marks the beginning of a reckoning. Big Tech had better beware of big government.
A Message from TheArticle
We are the only publication that’s committed to covering every angle. We have an important contribution to make, one that’s needed now more than ever, and we need your help to continue publishing throughout the pandemic. So please, make a donation.
