Throw the book at Musk, and don’t waste time legislating
THOSE of us who marched against the National Front in the 1970s know that you don’t leave spaces where the Far Right congregate unchallenged, writes Leighton Andrews on his blog Welcome to Ukania.
I was at Lewisham in 1977 – that is my blurry picture of the NF march – and at other places where the far right tried to march,
That’s why, so far, I haven’t left Xitter (pronounced shitter), although I have expanded my presence on other sites, principally BlueSky (I’m on Mastodon as well, but not convinced, and on Threads, but I don’t want Zuckerberg running all my social media life).
Over the last week we have seen cases where individuals have been arrested, charged and sentenced over online posts. But what of the platforms on which their poison has been amplified?
And specifically, what about Xitter?
Over the last week, the case for further regulating what Musk has called X and the rest of us call Twitter has gained momentum. There are suggestions that Labour might try to legislate to include penalties against the publication of ‘legal but harmful’ content.
On the whole, I hope they don’t go down that route, because I think they will get tied up in arguments of legal definition, which was one of the reasons the passage of the existing Online Safety Act took so long (Green Paper to legislation took something like six years).
It wasn’t the only reason for the delay – the paralysis of Brexit, the pandemic, and the constant changeover of prime ministers were other factors). There is, as I have said before, a default to legislation in Whitehall, but the truth is that there is plenty of legislation in place already and umpteen examples of Muskian law-breaking.
So I hope the instinct will be to use existing legislation, speed up Ofcom’s implementation of the Online Safety Act, and summon Xitter executives before Parliament (Remember Murdoch in 2011?)
Remember Zuckerberg avoiding the UK so he didn’t face the DCMS Select Committee when Damian Collins chaired it?) and the cancelling of any UK Government advertising on Xitter if there is any.
The EU and the US should also collaborate on joint challenges to Xitter. Meanwhile, no one should let Xitter off the hook for breaches of the law.
The Online Safety Act
The main problem with the Online Safety Act is that it took so long to develop from the original Green Paper proposals, and as a result, key sections have yet to be commenced.
The Act applies to services like Xitter:
The Act’s duties apply to search services and services that allow users to post content online or to interact with each other. This includes a range of websites, apps and other services, including social media services, consumer file cloud storage and sharing sites, video sharing platforms, online forums, dating services, and online instant messaging services.
The Act applies to services even if the companies providing them are outside the UK should they have links to the UK. This includes if the service has a significant number of UK users, if the UK is a target market or it is capable of being accessed by UK users and there is a material risk of significant harm to such users.
Platforms are required to try to prevent illegal content and to remove it if it appears, including that which:
- involves racially or religiously aggravated public order offences
- is inciting violence
The Act requires all companies to take robust action against illegal content and activity. Platforms will be required to implement measures to reduce the risks their services are used for illegal offending. They will also need to put in place systems for removing illegal content when it does appear. Search services will also have new duties to take steps to reduce the risks users encounter illegal content via their services.
The Act sets out a list of priority offences. These reflect the most serious and prevalent illegal content and activity, against which companies must take proactive measures.
Platforms must also remove any other illegal content where there is an individual victim (actual or intended), where it is flagged to them by users, or they become aware of it through any other means.
The illegal content duties are not just about removing existing illegal content; they are also about stopping it from appearing at all. Platforms need to think about how they design their sites to reduce the likelihood of them being used for criminal activity in the first place.
The Act also addresses the question of algorithms and the content they push.
Enforcement action means:
Companies can be fined up to £18 million or 10 percent of their qualifying worldwide revenue, whichever is greater. Criminal action can be taken against senior managers who fail to ensure companies follow information requests from Ofcom. Ofcom will also be able to hold companies and senior managers (where they are at fault) criminally liable if the provider fails to comply with Ofcom’s enforcement notices in relation to specific child safety duties or to child sexual abuse and exploitation on their service.
In the most extreme cases, with the agreement of the courts, Ofcom will be able to require payment providers, advertisers and internet service providers to stop working with a site, preventing it from generating money or being accessed from the UK.
So these are potentially strong powers, but we should be in no doubt that if judgements are made against them, social media companies will throw money at lawyers to seek to litigate the regulator’s actions, as they already do (see my Working Paper for the Centre for the Regulation of the Creative Economy, Facebook Regulation: a process, not a text).
I would like to see the implementation of these parts of the Act brought forward since Xitter clearly has a case to answer, not least over the last fortnight.
Other Action
There are other areas of policy and law which could be applied to Xitter.
Last week’s actions demonstrated that this is a national security issue in the UK. National security issues have also been raised in the USA, where legislation such as the Malicious Communications Act exists.
Although it is perhaps harder to argue a comprehensive competition or anti-trust case against Xitter than it has been with Google and Facebook, one issue that consumers might like to see addressed would be the ability to more easily transfer followers and those you follow to other platforms (this is complex because people have chosen to follow you on Xitter, and others may have accepted you following them).
But ease of portability, including of your Xitter data, would be one area where competition law might have a say. So would X’s action in blocking links to other social media services such as BlueSky, Mastodon, and Substack, as well as the effect of the Xitter algorithms in reducing the circulation of ‘Tweets’ quoting these sites. These could be issues in the UK and the EU.
More likely is action by data protection regulators in the UK, EU and elsewhere. Xitter opted-in all users of its service to the training of its AI model Grok on our data unless we specifically opted out (and it didn’t ask us in advance). To compound the injury, in order to opt-out, you have to log into a desktop or laptop version of the site, not a mobile version. Ireland’s Data Protection Commissioner, which acts for the EU on many social media issues, is already taking action on this. Xitter has agreed to pause the data exploitation in the EU, but many of us feel that the damage has already been done. I can’t work out what they are doing from the ICO website, so it would be good to hear more from them.
The Australian regulator also seems to be taking action.
What is to be done?
Here are some things the government could do.
First, ensure that the Information Commissioner prosecutes Musk’s breach of UK data protection legislation as soon as possible.
Second, collaborate with the EU data protection regulators on the same issue.
Third, impose an opt-in to algorithmic surveillance by Xitter: in other words, protect users from the hate speech algorithms by default. This is a proposal that the Irish Council for Civil Liberties has put forward to its media regulator.
Fourth, discuss with Ofcom the earlier implementation of the key sections of the Online Safety Act.
Fifth, prevent any government advertising on Xitter.
Sixth, encourage the ICO to investigate the issue of underage use of social media platforms, including Xitter. (The ICO is investigating this already)
Seventh, make it clear to Musk publicly and regularly that the UK Government and regulators have a range of options and policies to ensure it adheres to UK law.
All of this will impose costs on Xitter and Musk. Xitter is already in financial trouble, with Musk seeking to sue advertisers who won’t advertise on the hellsite (so much for Musk’s commitment to freedom of speech—he doesn’t like it when it’s used against him).
Existing legislation can do plenty. It just needs regulatory action and enforcement, a whole government approach, and a coordinated regulatory approach.
What should we as individuals do?
As I said above, I am staying on X for the time being. But I am also building up my presence on other platforms. You can find which of your Twitter followers is on Bluesky and start to follow them there, which I have started to do. James Plunkett has a really good explainer on how to do this:
Blue Sky has all the important functionality of Twitter except much less hatred and it’s not run by a very naughty boy. And crucially there are enough great people there to make it worth staying.
Once you have a Blue Sky account you can use a browser plugin to copy your Twitter followers over. Sky Bridge works well. Here’s a link to the Firefox extension and here’s a link for Chrome. They both have simple instructions. TL;DR go to your Twitter follower page, run the extension, and you’ll see which Twitter followers are on Blue Sky. You can follow each one on Blue Sky with one click.
BlueSky is getting more and more people joining, and the atmosphere is much calmer. So, see you on BlueSky soon!
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