2017: dawn of a post-truth era for platform liability?
2016 will go down as an epochal year, joining and perhaps surpassing 1987, 1995, 2001, 2008 as a year in which the world shifted on its axis with ramifications for years to come. The Oxford Dictionary's "word of the year" for 2016 is "post-truth". In a predictions edition we need to ask: if we are 'post' that, what are we 'pre', and what will the law's response be?
At the time of writing, furore continues to swirl around the impact of fake news on the US Presidential election result and the belief that, even without the fabricated stories, a huge proportion of US voters got their news and opinions from social media and inhabited their own echo chamber, hearing only the views they agreed with. During the UK's Brexit debates, the role of the broadcast news media came under scrutiny and questions were asked about whether it should have done more to interrogate the Leave camp's assertions. Both issues have, at their heart, a debate about what news and opinions the audience should hear.
This raises a number of questions. First, is there anything new here or will this be an issue which fades rapidly from the spotlight? Previous electoral victors have been lauded for their use of technological tools; has such use really become a problem or is it only seen as an issue if the result is one the commentariat does not like? From a legal perspective, the questions are whether regulation had a greater role to play and, if it does, who regulates?
From their birth, social media and other online content services have been able to shelter within a series of legal safe harbours for platforms, in particular the exception recognised in many countries for hosting user generated content which the platform is not aware breaches any laws. Fundamentally, these exceptions are about neutrality, that the service does not play a role in respect of the content other than hosting it. These protections have become somewhat porous over the past decade and neutrality harder to argue for as the services have become a larger part of the media mix. This porosity looks likely to increase in 2017 in the EU.
There will be continued pressure on regulators not to view social media as different from traditional media in the way regulation should approach it, and the more steps the social media platforms take to ensure content is accurate, the greater risk they face of losing the safe harbour protections. Meanwhile, traditional media is facing a new regulatory environment in the UK where greater responsibility for regulating the BBC and web content is being imposed on the communications "super regulator", OFCOM. The head of OFCOM has expressed unease at extending her remit beyond broadcast-like content to print content online.
There are also specific EU legislative proposals which should be finalised in 2017 which will move the needle on where copyright liability begins for some platforms. Under its Digital Single Market proposals, the EU Commission plans to give press publishers greater legal powers over how their content is re-used and will attempt to close the so-called value gap between what rights-owners are paid for content and what the value of that content is to platforms.
More than in other years, there is scope for these and other plans to be thrown off course. Even without the unpredictable impact of the US Election result, there have been leadership changes within the EU Commission with the controversial Digital Commissioner, Günther Oettinger, being transferred to a budgetary role and no successor yet in place. He was a strong supporter of the DSM copyright package. Meanwhile, 2017 will be a German and French election year and the UK will move further towards Brexit. In the copyright struggle between rights of content owners and rights of platforms, the UK government's voice has tended to be more supportive of technology while Germany, for example, has fought strongly for its publishing and other content businesses. It is assumed that the UK's voice will continue to weaken, which is expected to mean that legislative solutions will end up being more rights-friendly.
Some may argue that 'post-truth' is the inevitable consequence of the gradual loosening of regulation that has been necessary for the digital environment to develop and flourish to the point it has. Will 2017 be the year that the pendulum starts to swing back and a new bargain is arrived at between the roles and rights of rights-owner and service providers? Though we expect change to be slow despite all the heat and light around the political events of 2016, a gradual shift is underway.
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"Some may argue that 'post-truth' is the inevitable consequence of the gradual loosening of regulation that has been necessary for the digital environment to develop and flourish to the point it has... A gradual shift is underway."