It’s time for the regulation of social media

I have been publishing my monthly social media round-up since September 2015. I now decided to pause and take stock.

During the two years of compiling my regular social media updates I have been struck by the fact that I was essentially reporting the same stories time-and-time again: a cycle of abuse, harassment, threats, fake news, and blatant extremism, with the social media companies promising each time that they would do better the next time, but making very little, if any, progress in reality.

Reading through my social media round-ups is a distressing parade of bigoted, misogynist, sexist, racist, and homophobic abuse and harassment, the cynical manipulation of mass populations, the inconsistent application and incredulous misapplication of community standards, and an utter and complete failure by social media operators to stand up to intolerable instances of abuse and harassment, from violent misogynists to, deplorable homophobes, and despicable fascists, neo-Nazis, and white supremacists.

My monthly reports had become a chronicle of the utter and complete failure of the social media networks to self-regulate, or demonstrate any coherence and consistency in the application of their own standards of conduct.

Consequently, I have concluded that social media companies are not capable of policing themselves (or their users).

I am not the first person to draw this conclusion, with social media operators facing pressures in many jurisdictions to rein in the hate and malice. Germany has been one of the leading jurisdictions when it comes to trying to pressure social networks to deal with inappropriate materials and users who step beyond the rules of law with impunity.

Social media has been a veritable Wild West since its invention and proliferation. The most successful efforts in counteracting the lawlessness that pervades the medium came in the form of users taking action themselves through old-fashioned means, such as defamation suits.

The social networks, law enforcement agencies, and legislatures have been largely impotent when it comes to dealing with the dark side of social media, amplified by its global reach, immediacy, anonymity, and viral nature.

While people of colour, women, or members of the LGBTI community are promptly suspended by social media operators if they are seen to step out of line or are falsely reported, due to the viciousness targeted at them, virulent homophobes, misogynists, fascists, neo-Nazis, racists, and white supremacists continue to reign over social media with their sad, psychotic troll armies, which are suddenly elevated to relevance by the medium.

Individuals so targeted are practically helpless in the face of such onslaughts, and social media companies are failing them more often than finding the appropriate balance.

Given the proliferation of social media and its prevalence in human interactions and its potentially far-reaching consequences, from ruined reputations, to psychological trauma and serious mental health issues, the policing of such matters can no longer be left entirely to the discretion of self-interested and commercially motivated social media companies.

They proved themselves incapable, and arguably unwilling, to deal with the matter.

In light of their endless failures, law makers must start taking steps to rein in the social networks and create a regulatory and enforcement framework that people can use in response to social media abuse.

It is no longer good enough to treat matters that occur on social media, which if occurred in the ‘real world’ would be criminal or otherwise result in serious consequences to the perpetrator, as if they didn’t happen. The ‘boys will be boys’ approach to criminal and other serious anti-social conduct on social media must end.

In some ways, the European Union, in particular Germany has been leading the efforts when it comes to regulating social media operators.

The social media operators have been paying attention to the regulatory threats in Europe, with Facebook demonstrating its commitment to eradicating fake news in Germany, to counter allegations that it is not doing enough about inappropriate content, and regulatory threats by politicians.

Germany, like a number of other European jurisdictions, has specific laws addressing hate speech, as a result of its complex history and it has been at the forefront of trying to force social media operators to take responsibility for hate speech on their platforms. Last year the German Interior Minister, Thomas de Maizière, called on Facebook while visiting its offices to do more to combat racist and violent posts, and suggested the social media company should take proactive steps on such materials, rather than wait to receive complaints before acting.

Facebook, born in the land of free speech, has been reminded by Germany from time-to-time that it must abide by German laws prohibiting racist sentiments. ‘Volksverhetzung’ (incitement of popular hatred) is punishable under section 130 of the Strafgesetzbuch (the German criminal code) by up to five years imprisonment.

Articles R. 624-3 and R. 624-4 of France’s Penal Code also contain provisions protecting individuals and groups from being defamed or insulted on the basis of their ethnicity, nationality, race, gender, sexual orientation, disability, or religion, while article R. 625-7 deals with incitement to discrimination, hatred, or violence in respect of the same.

Social media operators accustomed to broad free speech protections in the United States had long struggled in Europe to adjust to their unique regulatory landscape when it comes to the scope of free speech.

Their most recent efforts were still found lacking, and Germany recently passed a law which will step up the enforcement of the country’s hate speech laws against social media operators by introducing fines of up to €50 million if clearly illegal content is not removed in a timely fashion, within 24 hours.

Other nations, including Australia would be well advised to follow suit and ensure that a strict regulatory and enforcement regime is in place to hold social media companies to account.

We need legislation is place that imposes meaningful penalties on social media companies ignoring takedown requests for inappropriate and private materials, and on users who overstep the boundaries.

We need a Social Media Ombudsman, with strong coercive powers, to step in when social media operators fail to respond appropriately, or in a timely manner.

The Office of the eSafety Commisisoner was a respectable effort, however it is clear now that such half-measures are insufficient in the face of utter crimiminal disregard of the laws on social media.

If we are to have any chance of taking social media back from the trolls, we need to subject the social networks to strict legal obligations and eye-watering fines for non-compliance, while also targeting the trolls directly with the full force of the law.

Of course any proposed legislation will need to be considered and measured, to ensure that genuine free speech is not endangered.

However, let’s be clear – abuse, harassment, misogyny, sexism, racism, homophobia, threats, and the like, are not worthy of protection under the guise of ‘free speech’.

With the assistance of considered and measured legislation, a Social Media Ombudsman could be called upon to determine when social media posts go beyond what is legally, or socially, acceptable, and issue take-down notices to the social networks, and to social media users directly.

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