How to ‘regulate’ Facebook (and all media companies going forward)
Another casual rant on media regulation, social media disinformation and free speech. For more detail, this looong Medium rant adapted from a talk last year, How to Solve* Your Free Speech Dilemmas, explains what I think Canadian talk radio gets right about free speech, and how to craft effective free speech policies in general. Other recent media blogs: Press Passes for Populists, Pandemic Social Media that Helps, not Harms. Feel free to leave polite feedback here or on Twitter! — DD
The Canadian government has Facebook in its sights with talk of imminent taxes and content regulation. And, weeks away from a US election that the media giant will again use to make piles of money at the expense of democracy, it’s worth debating how best to deal with this malevolent actor, the unknown quantity that is Tik-Tok, and all media companies going forward.
Ministers in the Trudeau government have been dropping hints on Twitter this week. Action on Facebook could be imminent.
And as our federal leaders often remind us, it’s 2020. The year implies a certain modernity. It’s time to not only address Facebook’s injurious disinformation apparatus but also overhaul our entire media regulatory environment; increasing regulation in some areas like social media, while loosening regulation in others like radio, television and telecommunications.
What we can expect from forthcoming regulations is that they will be overly complex for users, civil servants and media companies alike, create unnecessary levels of bureaucracy, and be a decade or two behind the times; in other words, Canadian politics as usual.
To illustrate my view on the correct direction Canada and other nations will eventually have to adopt, I use this line with clients when determining what their “media mix” should be, or what forms of media the brand(s) should engage with: Facebook is NBC. NBC is Netflix. Netflix is YouTube. YouTube is the Wall Street Journal... These are all competing media outlets. The content and broadcasting technology vary; the underlying challenges for government do not. The rules must be modernized and scaled.
Here are three big moves we can but probably won’t make to, once and for all, modernize Canadian media:
- Reform the CRTC, end ‘Two Solitudes’ licensing.
Allow Canadian media companies to compete and flourish nationally and internationally in any language without being weighed down by CanCon requirements and obsolete English/French licences; offer generous CanCon subsidies and data tax breaks (more on that soon) to those who produce more CanCon in relation to the data consumed and/or create Canadian jobs.
Some media regulation will always be needed. The Canadian Radio-television and Telecommunications Commission should have two principle functions: To green light all sustainable advancements in private telecom, especially those that favour rural connectivity and reduced phone and internet bills for Canadians, and to supervise the status and taxation of media companies, from radio stations to social networks.
When would a community network fall under the CRTC’s purview as a media company? There’s a formula to be calculated; it may involve a critical mass of data consumed and/or registered users in Canada (likely in the thousands or tens of thousands) and/or other metrics that would aim to define precisely enough what a broadcaster is, versus a narrow-caster, citizen-journalist or random dude with terrible opinions who we should probably ignore.
Much of the infrastructure by which digital content is delivered to Canadians remains, after all, a public resource.
2. Tax media companies. Don’t be shy. They are bluffing.
If Facebook has a fit over paying Canadian taxes for their Canadian operations, like my grandmother used to say, qu’ils crèvent! The regulatory environment has to be consistent for all; no special deals for Netflix or anyone else (weird, I am in agreement with our quirky regional billionaire on this).
This recent headline says it all: “Facebook says it will block users in Australia from sharing news if new rules go forward.” Our governments cannot be negotiating with every half-wit algorithm-terrorist. We should cooperate with other nations, perhaps through the G20 or Commonwealth, to promote a consistent regulatory environment globally.
Politically, as Canadians, we mustn’t be shy about telling the world why our media ecosystem is generally more civil than elsewhere and what in our national character helped get us this far, with our democracy mostly in tact.
In addition to fairly paying sales taxes, Facebook along with all Canadian media companies should also pay a data tax based on how much they consume. Two methods have been proposed, and perhaps the ultimate answer considers both: Taxing the total volume of data or number of transactions (the ‘DST’ concept) that pass through a jurisdiction, and the amount of personal data collected on citizens in that jurisdiction.
3. Media companies must join an industry self-regulatory body or be libel for content.
As I get into with the Free Speech Dilemmas rant, I strongly suspect the reason why there aren’t really any free speech or hate speech controversies in Canadian radio is because it is so effectively self-regulated and not regulated directly by government.
The Canadian Broadcast Standards Council (CBSC), an industry body, monitors content deemed offensive by a critical mass of complainants. And I say “monitor” loosely. I’ve said things perceived as controversial by many from left to right wings for nearly two decades on Canadian radio stations and have never once had a complaint accepted by the CBSC.
Several audience complaints will need to be registered to the CBSC, which is supported by Canada’s media companies, in order to prompt an investigation, then possibly a hearing for the offending broadcaster, and then possibly a fine for noncompliance.
The noncompliance part is what sends a chill up the spines of free speech activists but fear not; the reason you haven’t heard of speech controversies on Canadian talk radio is because the rules are loose enough to allow any civil opinion to be broadcast but tight enough to discourage uncivilized or injurious behaviour. CBSC rules discourage, among other behaviours, the slander of identifiable groups, and is based directly on Canada’s Charter of Rights and Freedoms. It is therefore in line with longstanding consensus in civil law and Canadian society at large.
Such rules wouldn’t criminalize racism which seems impractical but, I argue, would rethink hate speech as civil mass defamation, or e-defamation. That would mean opening up hate speech legislation, which is uncomfortable but must be part of the solution here one way or another.
Incitement to violence, obstruction of the electoral process and other more dangerous violations of free speech are criminal matters in most jurisdictions and should be treated as such. That cannot be regulated by the industry itself; citizens should always be free to broadcast independently but, without participating in a recognized industry self-regulatory body like the CBSC, civility is bound to slip. When it does, broadcasters should be held accountable for spreading dangerous misinformation (including COVID-19 conspiracy theories, for example).
If Facebook with all its resources cannot adequately screen out incitements to violence, election meddling campaigns or other injurious content, they should pay for these slips dearly, with penalties already outlined in election laws. Every single time.
Speech on Facebook isn’t Free
Facebook’s confrontational move to block Australian news content is a tell: They are not, and never were, a digital compliment to traditional media companies like NBC or the New York Times. They are the new media and here to replace these traditional outlets.
Under duress, Facebook has stated to the world that it is competing with mainstream news organizations. Why is there even a debate about whether or not to bring it and other far-reaching digital media networks into regulatory environments? If libertarian critics claim regulating Facebook is a free speech violation, where have these critics stood on radio and TV regulation for the last half-century? Our own biases, and the temptation of a purportedly all-powerful, readily-accessibly propaganda tool, is clouding our judgement.
Free speech died on Facebook at least four years ago when its algorithm changed, making it a populist advertising platform over an open broadcasting platform (Facebook’s algo betrayal and decline explained here).
Pretending Facebook, Tik-Tok and other social networks are open and free media is not only factually untrue but increasingly nihilistic and an imminent danger to our democracies. We are in a race against time to mitigate the damage.
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