EU-US first litmus test on social media firms and democracy

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Bans on Donald Trump’s social media accounts highlight the enduring struggle between free enterprise and the responsibilities of the state, which have long been overshadowed by collecting taxes from digital entrepreneurs. This raises serious and fundamental questions about the bans and on where exactly the nexus is between the public and private sectors. Furthermore, it highlights the need to find a definitive answer to a vexing question between freedom of enterprise and the obligation of the state to curtail abuse that obviously ensues from such freedom. 

The bans also show weakness in democratic governance as they raise such nagging questions as: from whom should modern citizens expect to exercise ultimate power, and thus protection, between the state and commerce? Why after some twenty years since social media platforms started making head-way, is it only now that governments are coming to terms with the power of these platforms? 

Indeed, no one imagined at the time the Internet was first being developed that it would have such powerful platforms, nor conceived of the threats and opportunities they would pose to strengthening and undermining democracy. If Trump has left any useful legacy, it is perhaps a chance to reflect on these questions because doing so will help align free enterprise in digital innovation with fundamental concepts, such as free speech guarantees, with what is offered in democratic countries.

It is illogical to deny or question the power and reach of social media platforms. Seventy-two percent of American adults used social media in 2019, compared to only 5 percent just 14 years earlier. They offer an unrivalled effective and efficient way for peddlers to peddle. In little under a minute, Trump could communicate to 80 plus million people who care for his versions of the truth. The reach of these platforms is unrivalled because the primary means of communicating through them is in most people’s pockets. 

Technological advancement means that earlier primary delivery mechanisms like radio and television are increasingly becoming secondary in the way people consume information. Older technologies did not allow people to communicate as much as social media platforms do, which also unburden traditional media editors an answer to the ever-present elusive question: can we really print this or that without running afoul with the law? 

These platforms put a further strain to the argument that traditional media editors’ management of public participation on public debate and decision-making is much more democratic. Social media platforms easily allow everyone to convey an unvarnished version of their convictions, or truths, to which people are quite free to freely subscribe or reject. 

They are also an analogue version of direct democracy in practice in the Swiss cantons. Social media platforms are developments that are fostered by free enterprise. As such, Ursula von der Leyen, the president of the European Commission, has told the Biden administration of the “need to contain this immense power of the big digital companies.” The “digital economy rulebook” she invites Biden to co-author will be a litmus test in relations between Europe and the administration Brussels had hoped for since 2016.

Governments, especially in democratic countries, have seemingly been more concerned with collecting taxes from so-called digital entrepreneurs who imagined these platforms than they have been asking and addressing the ensuing fundamental questions they provoke and that increasingly can no longer be ignored, as the bans on Trump’s social media accounts reveal. The widespread general public expectation of these platforms to censor speech, of whatever value, and disappointment that they have done so much too late on Trump’s accounts, reflects a failure of democratic institutions and democracy. This failure persists in the midst of the knowledge, I should presume, that the existence of these platforms and their increasing number represent a threat to the democratic order on equal strengths as they offer a path towards deeper democratic citizenship. 

It ought to be a monumental societal concern that millions followed someone with abhorrent views rather than use these platforms to confront questions like, how best to govern society? The continuing failure by politicians to address fundamental questions concerning these platforms does far greater damage than solve whatever problems their entrepreneurs imagined by banning Trump. What is the muse, or the law, to make of claims by the political right that social media platforms are controlled by ‘liberals’ and from the political left, that they are controlled by ‘fascists’? 

The nature and scope of the essential questions that need to be addressed means that digital entrepreneurs do not have the competency, nor should they, to ultimately regulate free speech. 

  • If, as is the case with Trump, free speech is regulated by commerce, what statement does that make on the fate of democracy?
  • Are citizens in democratic societies then to accept that the function of the courts in interpreting provisions and protection of free speech guarantees in national constitutions should be the purview of entrepreneurs, or worse be so influenced by them? 
  • If digital entrepreneurs have the competency to regulate speech, have they missed their calling to be supreme court judges and legislators? 
  • How can objectivity, presumed of judges and the courts, be assured when digital entrepreneurs assume rights to censor based on their ownership? 
  • Should owners of these platforms be as concerned with political censorship as with morality, such as banning those who use their platforms to sell sex, which is illegal in some countries? 
  • In this digital age, as it’s often called, when does a private enterprise becomes public, and thus induce an obligation on the state to regulate? 
  • How can democratic states assure and protect privacy in a public platform? Put differently, are all the sometimes obscene comments by Trump’s private or public speaking? 

Public speech needs be are regulated, but I do not argue the same for private speech. As I understand it, myself being socially disengaged from social media platforms, they mimic a function of laws by imposing ‘community standards.’ 

Surely there are other political populists with amoral views that could be found wanting for values of truth or decency in their speech. Or, is it that Trump was, and as Plato much feared, too successful at corrupting the minds of millions, then rose to the status of a demigod and drew the ire of social media managers along the way? If yes, surely it is worrisome to devolve democratic states’ responsibilities on providing and protecting free speech to social media entrepreneurs. 

EPA-EFE//SEDAT SUNA

A struggle is ongoing and has been for as long as societies have sought solutions on how best to organise. It’s the sort of constant wrangling between the legislative, executive and judiciary, that presumably strengthens democracies. To this trio, a new “branch” has emerged in the midst of a key democratic value…truth. 

For social media platforms to continue to exist, they must be allowed the exercise of a fundamental guarantee in democratic societies must be allowed on them. Free speech. With it, we can reach the truth. The unilateral and arbitrary protection of ‘truth’ by social media, which in the case of Trump, von der Leyen says was a “serious interference with freedom of expression,” but that was done they presumably do for the public good, raises questions on politics, morality and justice. Amongst them, whose truth must prevail? Trump’s version of reality, or those who have censored him? Is truth transient or fixed? Is an old method used to ascertain the validity of an argument, or truth, based on the number of people who subscribe to it, or who are subscribers to an account on a social media platform still useful? If so, 88 million free Americans are freely in pursuit of it. Social media offers a scale to directly measure and in a democratic way, weigh a kernel of truth in political speech. And the bans show that the pursuit of truth which is necessary in democracies remains elusive as we are without a way to weigh speech for values of truthfulness. It is not sufficient to say Biden says it, so it must be truth. Or, because Trump says it, it must be a lie.

“Our new rulebook for our digital market” as von der Leyen calls proposed EU legislations, the Digital Services Act and Digital Markets Act, must weigh the relevance of these questions, beyond a focus on creating “a safer and more open digital space” to protect fundamental rights and “foster innovation, growth, and competitiveness.” As well, it will be challenging for Europe to unilaterally develop its “new rulebook” and expect it shines a light on the “darker sides of the digital world” as von der Leyen calls social media. Europe must recognise that this ‘world’ is primarily in Silicon Valley, California, which for almost 30 years has consistently voted for Biden’s democratic party. More than 11 million Californians, the highest in 28 years, cast their ballots for Biden. Its residents will most likely feel impacts of the “framework of laws” von der Leyen imagines will underpin the “digital economy rulebook.” 

With these realpolitik considerations, it is advisable that von der Leyen speaks of a Europe that is ready to lead than a Europe that “stands ready” to make laws with world-wide relevance that will assure technological innovations but also manage their output, such as social media, from undermining the very democratic conditions that allow for such possibility. 

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