Good law or seriously flawed

The hidden threats in taming tech by law

James Ball

The last year has marked the point where everyone agrees something must be done about big tech – but no-one actually seems to agree on what, exactly, that “something” should be.

That puts us at serious risk of being in a situation highlighted decades ago in the British sitcom “Yes, Minister”: “Something must be done. This is something. Therefore we must do it.”

The EU is passing two new laws which affect how big tech handles journalism and other media material – Article 11 and Article 13. The first of the two, dubbed a “link tax” by its critics, would require Google and other search engines to pay for the short snippets of news stories it includes in its search results and similar.

The rationale for this for the publishers who support it, and the lawmakers who passed it, is that Google makes revenue from these extracts of publishers’ original work – and so the people who produce it should have a share of it.

The problem is that there’s a fairly straightforward way out for Google, which is just not to show the snippets for any site that hasn’t expressly given permission to use them for free. That risks making quality news even harder to discover – against a backdrop of misinformation and low-quality junk news sites.

Given Google is still the biggest traffic driver to most global news websites – and in the developed, English-language online media – the days of easy traffic and audience growth appear to be ending, Article 11 and the fees it brings appears to risk publishers cutting off their growth to spite their foes. Making Google slightly less effective won’t, in itself, save journalism.

Another measure the EU is considering is its Article 13 provisions – which extend copyright enforcement and reduce the defence of platforms when they are found to be hosting it. At present, platforms such as YouTube are required to act in a timely fashion once copyright violations are reported to them – but have a defence until that point.

The problem here is that even though such provisions don’t explicitly require the platforms to introduce “upload filters” – tools which automatically scan and analyse content before it’s made public on the platform – it is hard to see any other way in which they could comply with the law.

The risk here is that it could make it a lot harder to use copyright materials in ways which are currently considered culturally and legally legitimate – such as fair news in the public interest for news reporting unearthing old clips with new relevance, or remixing material for satire, or even creating memes.

Legislators insist they have tried to include measures to soften the impact of the laws, but in practice many internet activists – including people who are not naturally friends of Facebook, YouTube, or others – are alarmed at the potential for the two measures to stifle free expression online while giving little upside to the publishers such steps supposedly protect.

Cory Doctorow, the internet activist and longtime blogger at BoingBoing (despite the name, one of the oldest and best respected blogs on these topics), greeted the measures – which are now almost certain to become EU law – contemptuously.

“This will kill off every service that lacks the hundreds of millions of euros it will cost to build and maintain these filters,” he wrote. “This is Internet As Cable Television: millions of sites and services collapsed down to hundreds, each a mere distribution arm for media companies, with the public relegated to ‘viewer’ status, unable even to communicate with one another.”

This is the danger of regulation done before we understand the internet, and the consequences of our actions. It has become a utility, an essential channel for journalistic outlets to reach their public, for reporters to reach and communicate with their potential sources, and for the public as a whole to communicate with each other.

Making rules to suit copyright holders trying to return to a pre-internet status quo is unlikely to benefit media conglomerates as much as they might hope, and risks doing a lot of harm in the meantime. The time where we could treat the internet as a playground or a testing ground are past: it is now essential infrastructure, and needs to be treated as such.

That’s where the flipside of internet regulation comes in: if we believe the internet is a utility, is something that now has to be treated similarly to electricity, gas and water, we need to make sure it has rules to make sure it’s available freely and fairly.

This is the principle known as “net neutrality”, and at its simplest, this principle states that all data on the internet is treated in the same way. When a message leaves a server or a computer, it is broken up into packets of data (that’s their official name) – and then it doesn’t matter whether those are audio, video, text, or something else. Nothing takes priority and everything has to be carried.

That principle has been built in by design to many of the internet’s protocols, but it’s one that’s now possible to ignore – cable companies and other ISPs can introduce hardware to analyse what type of data is in each packet, and give some paying customers priority, or even ban some types of content. A mobile phone provider could, for example, try to make it impossible to use Skype or FaceTime, so that its customers have to use their cellphone plan.

This is what net neutrality forbids, and it’s heavily supported by most open internet advocates both as an important consumer protection against getting ripped off, and also as a means of protecting and extending free expression, in line with the early promise of the internet as it expanded beyond established Western democracies – it is the same technology that undermines net neutrality which can be used to enable the most sophisticated forms of online censorship.

Until we have got a better understanding of the internet, and the ways we can use regulation to expand free communication, free media, the logical choice is to use regulation solely to try to preserve the open internet, rather than risking the kind of overstep and backlash the EU laws propose.

Unfortunately, regulators are causing headaches here, too – this time in the US. President Trump’s appointment as chair to the FCC, which oversees US internet and telephony, has already rolled back protections introduced under the Obama presidency extending net neutrality powers, and many fear that these will be rolled back still further as Ajit Pai, Trump’s FCC chair, is a public and outspoken critic of net neutrality.

This is the backdrop against which the public mood has shifted against tech, and entered a kneejerk mood looking to change the status quo. Few would doubt that more should be done to make sure the power of the dotcom giants is made accountable, that they pay their fair share of tax, and they keep their own services legal and free of toxic material.

Neither side of the Atlantic seems to be in a place to make sensible rules yet. Sometimes, until you know what will work, it can be better to do nothing – even if that’s the hardest decision of all.


James Ball has worked in political, data and investigative journalism in the US and UK for BuzzFeed, The Guardian and the Washington Post in a career spanning TV, digital, print and alternative media. His reporting has won the Pulitzer Prize for public service, the Scripps Howard Prize, the British Journalism Award for investigative reporting. His latest book, “Post-Truth: How Bullshit Conquered The World” was published in 2017.

Saving the News: Ethics and the fight for the future of journalism

Published in London by the Ethical Journalism Network

© 2019 Ethical Journalism Network

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This is the eighth EJN report on the state of ethics in journalism. Previous publications include:

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Tagged with: Algorithms | Artificial Intelligence | Automation | Robot Journalism | Blockchain | Technology, Ethics in the News, Facebook, Google, governance, James Ball, Media Law | Public Information Law, Regulation and Self-Regulation