Regulation Of Big Tech: A Conundrum Of Interests

By Mrs. Onyinye Chikwendu-Ikechebelu & Echoga
Caleb

Free speech no longer exists in America, it died with big
tech”.

Donald Trump Jr.

In a most unprecedented move, social media giants –Twitter,
permanently suspended the account of former American President
Donald J. Trump, following allegations that he had made inciting
comments which led to violent protests at the American Capitol
building and its eventual occupation by protesters. Twitter’s
action, has further fuelled ongoing conversations that social media
platforms and indeed their CEOs, have become too powerful in their
ability to shape public opinion in matters of politics, economy and
other core facets of societal living.

This article is essentially a teaser. On the contrary, it seeks
to establish that the arbitrary censorship of social media would
reduce several democratic polities to pseudo dictatorships. In
sharp contrast, it also beams a light on the several ills (for
example increased hate speech, enhanced dictatorial tendencies of
social media platform owners etcetera.) that befall society when
social media is left unchecked. It concludes by opening a
conversation on the plausible implementable solutions that can help
achieve an equilibrium amongst the several actors in social media
regulation.

Have Social Media Platform Owners Become Too
Powerful?

On the 8^th of January, 2021, the world awoke to
receive the news that former American President, Donald Trump had
been banned from Twitter for ‘inciting comments’ in the wake of the
attacks at the American Capitol which left five persons dead.
Commenting on the rationale for the ban, Twitter CEO Jack Dorsey
via a Twitter post observed:

“I do not celebrate or feel pride in our having to ban
@realDonaldTrump from Twitter, or how we got here. After a clear
warning we’d take this action, we made a decision with the best
information we had based on threats to physical safety both on and
off Twitter. Was this correct?

I believe this was the right decision for Twitter. We
faced an extraordinary and untenable circumstance, forcing us to
focus all of our actions on public safety. Offline harm as a result
of online speech is demonstrably real, and what drives our policy
and enforcement above all.”

Indeed, the reactions trailing the ban of the Ex-President have
been a mixed bag. German Chancellor, Angela Merkel regarded the
move as ‘problematic’ as it, in her opinion, infringes on the right
to free speech and expression. For the German Chancellor, such
decisions to deny an individual a right to public expression is a
subject matter that should be decided by laid down laws and
designated government institutions.[1] Reprimanding
the ban in a like manner, The United Kingdom’s Health Secretary
Matt Hancock similarly observed: “The fact that a CEO can pull the
plug on POTUS’s loudspeaker without any checks and balances is
perplexing.”[2]

In whatever side of the divide one aligns, the uncontroverted
fact remains that Social Media has transcended being a mere avenue
of leisure and entertainment into a tool that can be utilized for
the expression of free speech and other rights, as well as to
galvanize public opinion on an array of public matters. It is the
understanding of social media in this sense that has warranted the
enactment of legislations by countries world over in seeking to
strike a ‘balance’ on social media usage and abuse.

In its passage of the Network Enforcement Act, 2017, the German
government became one of the first European countries to directly
and specifically legislate on curbing the excesses of both social
media ownership and abuse by users. By a combined reading of
section 1(1), (2) and (3) of the Act[3], social media
platforms with a minimum of two million users are mandated to
establish channels that allow for the reporting of illegal content
(which include contents on public incitement, sedition, terrorism
etc.) which ought to be taken down by such platforms within 24
hours.

The law further requires such social media platforms to also
publish bi-annual reports of their management of illegal content
and the flagging of same[4] and stipulates a
fine of up to $62,000,000 for companies that fail to comply. The
German legislation in this regard has been criticized on two major
grounds. First, critics opine that the 24-hour period giving to
social media companies to review posts/contents that infringe on
the Act is not sufficient to allow for a thorough process of review
that guarantees meritorious regulation. Secondly, they also argue
that the absence of an appeal process on most social media
platforms after a user has been banned/suspended creates some sort
of big-tech autocracy.  Indeed, this further galvanises the
position of world leaders like Angela Merkel who suggest that such
procedures should be within the sphere of institutions of law.

How Much Regulation is Too Much?

In America, the acclaimed ‘home of democracy’ the approach to
social media regulation has typically being, to allow social media
platforms self-regulate by putting in place policies to track and
remove offensive or illegal content. The free-hand allowed these
companies essentially stems from the provisions of Section 230 of
the Communications Decency Act 1996 which shields social media
companies (like Twitter and Facebook) from liability for the
content posted by their users.

In recent times however, there have been several outcries that
tech giants were not doing enough to address the notoriety of
illegal content on the internet. This pressure has ultimately
pushed legislators in the US to reconsider the current arrangement
of social media content regulation in the country.  In 2020,
the Eliminating Abusive and Rampant Neglect of Interactive
Technologies Bill was introduced to the floor of the American
Congress and it seeks to create exceptions to the provisions of the
earlier mentioned Section 230 of the Communications Decency Act,
1996 by creating some sort of intermediary liability for tech
giants[5]. This is in a bid to demand a higher
sense of responsibility from social media giants in ensuring the
serenity of their platforms.

Outside America however, the approach to social media regulation
has been more stiff.  Following terrorist attacks in
Christchurch in 2017, the Australian Parliament enacted the Sharing
of Abhorrent Violent Material Act, 2019 which amongst other things,
warrants social media platforms to remove offensive, extremists and
illegal content from their platforms ‘expeditiously’. A failure to
comply attracts a fine of $2,100,000 or a 3-year imprisonment term
when an individual is in default or a $10,500,000 fine/10%[6] of turnover when the defaulting entity is a
corporate body.

The Australian legislation has come under heavy criticism for
being rushed as it was made without due and wide consultations with
the public. Critics have also stated that the requirement on social
media platforms to ‘expeditiously’ remove offensive content as
stated in the Act is too broad and undefined for a timeline, and
makes the Act a ready tool for political witch-hunting in the hands
of politicians.

Like the United States, the EU’s policy on social media content
regulation has essentially being to mandate social media platforms
to self-regulate. The Union has also responded by proposing a draft
bill – the European Digital Act which seeks to mandate social media
platforms to take down illegal content (on extremism, violence,
child pornography etc.) within an hour. It further stipulates that
whilst the failure to remove flagged content within an hour would
not attract fines, the failure to remove same when flagged by a law
enforcement agency would attract heavy fines. Indeed, this is
obviously due to the fact that the later event would typically be
on more authentic grounds.

The Nigerian Situation

In 2019, the Protection from Internet Falsehoods, Manipulations
and Other Related Matters Bill, 2019 passed second reading on the
floor of the Nigerian Senate. The Bill which is Nigeria’s first
attempt at legislative regulation of social media content seeks to
prevent the transmission of false statements/news and block access
to finance for such online platforms.  It also imposes a
sanction of a N 300,000 fine or a three-year imprisonment term on
individuals in default of the law and a N 10,000,000 fine on
companies so found wanting.  The Bill further empowers law
enforcement agencies to mandate Internet Service Providers (ISPs)
to block the internet access of persons alleged to have violated
the provisions of the Act.

Perhaps, the most controversial element of the Bill is that it
provides that the administration and enforcement of its provisions
shall be vested in the Inspector General of Police. This has been
heavily criticised by a vast majority of the Nigerian populace and
opposition political parties who are of the opinion that the Bill
seeks to deny the right to free speech and further empower the
government and indeed politicians to victimize their political
opponents and suppress critics.  Consequently, at the Public
Hearing held in respect of the Bill in March 2020, at the National
Assembly, the Bill was largely rejected by civil society
organisations and indeed members of the Nigerian public in
attendance.

Nothing has since been heard of the Bill since the Public
Hearing. The Senate has neither commenced a third reading of the
Bill nor called for another Public Hearing. For some, it is
testament that the will of the Nigerian people has prevailed over
the wishes of a select few. Others, however still nurse the
concerns that further attempts would be made in future to smuggle
the Bill into the country’s legislations.[7]

The Way Forward

In today’s highly polarised modern society the issue of social
media content regulation has become a hydra-headed conundrum.
Governments and regional bodies across continents are posed with
the question of how to curb the proliferation of the internet with
illegal content without trampling on highly cherished citizen
rights such as the freedom of expression and speech. It is firmly
believed regardless, that any pragmatic approach to regulating
social media must be one based on laws enacted after wide and broad
based consultations with relevant stakeholders – the general
public, social media users, the owners of social media platforms,
security agencies and lawmakers.

This would ensure, that whatever laws are made would be a
reflection of the true wishes of society and allow for little room
for criticism on inclusiveness in the future. In a similar regard,
it is also believed that the ultimate power to decide the
termination of a person’s access to a social media should not be
within the exclusive discretion of social media giants as this
simply too much power!

It is suggested here that the value of a social media account
(allowing an owner to achieve business advertising objectives and
branding, political goals, activism etcetera) is of too much value
to be treated trivially. Indeed, it should be equated with the
status of a bank account ownership. Consequently, the denial of a
person’s access to his account on the grounds of suspension/ban
should be a subject contestable/appealable before the Courts of
law. This truly would be allowing the law function as an agent of
social engineering.

Authors: Mrs. Onyinye Chikwendu-Ikechebelu & Echoga Caleb

Mrs. Onyinye, is the Practice Manager of Omaplex Law Firm 
and member of the project and asset finance group in Omaplex
specializing in project and asset finance focusing on international
aviation and shipping finance transactions.

While Echoga Caleb holds a commendable legal expertise in
intellectual property law, financial technology, and data
protection and privacy law.

[1] Ryan Browne, ‘Germany’s Merkel Hits out at
Twitter over ‘Problematic’ Trump Ban’ < https://www.cnbc.com/2021/01/11/germanys-merkel-hits-out-at-twitter-over-problematic-trump-ban.html^[1]
> Accessed, 25^th March, 2021.

[2] Ibid.

[3] Network Enforcement Act, 2017.

[4] Section 2(1), Network Enforcement Act, 2017.

[5] David Morar and Bruna Martins, ‘ The Push for
Content Moderation Around the World’ < https://www.brookings.edu/blog/techtank/2020/09/21/the-push-for-content-moderation-legislation-around-the-world/^[2]
> Accessed March 23, 2021.

[6] Section 474.34, Sharing of Abhorrent Violent
Material Act, 2019.

[7] Mathew Ogune, ‘Protests Against Social Media
Bill Persists in Abuja’ The Guardian (Abuja, 10 March
2021) < https://guardian.ng/news/protest-against-social-media-bill-persists-in-abuja/^[3]
> Accessed 10 March, 2021.

By Mrs. Onyinye Chikwendu-Ikechebelu & Echoga
Caleb

Free speech no longer exists in America, it died with big
tech”.

Donald Trump Jr.

In a most unprecedented move, social media giants –Twitter,
permanently suspended the account of former American President
Donald J. Trump, following allegations that he had made inciting
comments which led to violent protests at the American Capitol
building and its eventual occupation by protesters. Twitter’s
action, has further fuelled ongoing conversations that social media
platforms and indeed their CEOs, have become too powerful in their
ability to shape public opinion in matters of politics, economy and
other core facets of societal living.

This article is essentially a teaser. On the contrary, it seeks
to establish that the arbitrary censorship of social media would
reduce several democratic polities to pseudo dictatorships. In
sharp contrast, it also beams a light on the several ills (for
example increased hate speech, enhanced dictatorial tendencies of
social media platform owners etcetera.) that befall society when
social media is left unchecked. It concludes by opening a
conversation on the plausible implementable solutions that can help
achieve an equilibrium amongst the several actors in social media
regulation.

Have Social Media Platform Owners Become Too
Powerful?

On the 8^th of January, 2021, the world awoke to
receive the news that former American President, Donald Trump had
been banned from Twitter for ‘inciting comments’ in the wake of the
attacks at the American Capitol which left five persons dead.
Commenting on the rationale for the ban, Twitter CEO Jack Dorsey
via a Twitter post observed:

“I do not celebrate or feel pride in our having to ban
@realDonaldTrump from Twitter, or how we got here. After a clear
warning we’d take this action, we made a decision with the best
information we had based on threats to physical safety both on and
off Twitter. Was this correct?

I believe this was the right decision for Twitter. We
faced an extraordinary and untenable circumstance, forcing us to
focus all of our actions on public safety. Offline harm as a result
of online speech is demonstrably real, and what drives our policy
and enforcement above all.”

Indeed, the reactions trailing the ban of the Ex-President have
been a mixed bag. German Chancellor, Angela Merkel regarded the
move as ‘problematic’ as it, in her opinion, infringes on the right
to free speech and expression. For the German Chancellor, such
decisions to deny an individual a right to public expression is a
subject matter that should be decided by laid down laws and
designated government institutions.[1] Reprimanding
the ban in a like manner, The United Kingdom’s Health Secretary
Matt Hancock similarly observed: “The fact that a CEO can pull the
plug on POTUS’s loudspeaker without any checks and balances is
perplexing.”[2]

In whatever side of the divide one aligns, the uncontroverted
fact remains that Social Media has transcended being a mere avenue
of leisure and entertainment into a tool that can be utilized for
the expression of free speech and other rights, as well as to
galvanize public opinion on an array of public matters. It is the
understanding of social media in this sense that has warranted the
enactment of legislations by countries world over in seeking to
strike a ‘balance’ on social media usage and abuse.

In its passage of the Network Enforcement Act, 2017, the German
government became one of the first European countries to directly
and specifically legislate on curbing the excesses of both social
media ownership and abuse by users. By a combined reading of
section 1(1), (2) and (3) of the Act[3], social media
platforms with a minimum of two million users are mandated to
establish channels that allow for the reporting of illegal content
(which include contents on public incitement, sedition, terrorism
etc.) which ought to be taken down by such platforms within 24
hours.

The law further requires such social media platforms to also
publish bi-annual reports of their management of illegal content
and the flagging of same[4] and stipulates a
fine of up to $62,000,000 for companies that fail to comply. The
German legislation in this regard has been criticized on two major
grounds. First, critics opine that the 24-hour period giving to
social media companies to review posts/contents that infringe on
the Act is not sufficient to allow for a thorough process of review
that guarantees meritorious regulation. Secondly, they also argue
that the absence of an appeal process on most social media
platforms after a user has been banned/suspended creates some sort
of big-tech autocracy.  Indeed, this further galvanises the
position of world leaders like Angela Merkel who suggest that such
procedures should be within the sphere of institutions of law.

How Much Regulation is Too Much?

In America, the acclaimed ‘home of democracy’ the approach to
social media regulation has typically being, to allow social media
platforms self-regulate by putting in place policies to track and
remove offensive or illegal content. The free-hand allowed these
companies essentially stems from the provisions of Section 230 of
the Communications Decency Act 1996 which shields social media
companies (like Twitter and Facebook) from liability for the
content posted by their users.

In recent times however, there have been several outcries that
tech giants were not doing enough to address the notoriety of
illegal content on the internet. This pressure has ultimately
pushed legislators in the US to reconsider the current arrangement
of social media content regulation in the country.  In 2020,
the Eliminating Abusive and Rampant Neglect of Interactive
Technologies Bill was introduced to the floor of the American
Congress and it seeks to create exceptions to the provisions of the
earlier mentioned Section 230 of the Communications Decency Act,
1996 by creating some sort of intermediary liability for tech
giants[5]. This is in a bid to demand a higher sense
of responsibility from social media giants in ensuring the serenity
of their platforms.

Outside America however, the approach to social media regulation
has been more stiff.  Following terrorist attacks in
Christchurch in 2017, the Australian Parliament enacted the Sharing
of Abhorrent Violent Material Act, 2019 which amongst other things,
warrants social media platforms to remove offensive, extremists and
illegal content from their platforms ‘expeditiously’. A failure to
comply attracts a fine of $2,100,000 or a 3-year imprisonment term
when an individual is in default or a $10,500,000 fine/10%[6] of turnover when the defaulting entity is a
corporate body.

The Australian legislation has come under heavy criticism for
being rushed as it was made without due and wide consultations with
the public. Critics have also stated that the requirement on social
media platforms to ‘expeditiously’ remove offensive content as
stated in the Act is too broad and undefined for a timeline, and
makes the Act a ready tool for political witch-hunting in the hands
of politicians.

Like the United States, the EU’s policy on social media content
regulation has essentially being to mandate social media platforms
to self-regulate. The Union has also responded by proposing a draft
bill – the European Digital Act which seeks to mandate social media
platforms to take down illegal content (on extremism, violence,
child pornography etc.) within an hour. It further stipulates that
whilst the failure to remove flagged content within an hour would
not attract fines, the failure to remove same when flagged by a law
enforcement agency would attract heavy fines. Indeed, this is
obviously due to the fact that the later event would typically be
on more authentic grounds.

The Nigerian Situation

In 2019, the Protection from Internet Falsehoods, Manipulations
and Other Related Matters Bill, 2019 passed second reading on the
floor of the Nigerian Senate. The Bill which is Nigeria’s first
attempt at legislative regulation of social media content seeks to
prevent the transmission of false statements/news and block access
to finance for such online platforms.  It also imposes a
sanction of a N 300,000 fine or a three-year imprisonment term on
individuals in default of the law and a N 10,000,000 fine on
companies so found wanting.  The Bill further empowers law
enforcement agencies to mandate Internet Service Providers (ISPs)
to block the internet access of persons alleged to have violated
the provisions of the Act.

Perhaps, the most controversial element of the Bill is that it
provides that the administration and enforcement of its provisions
shall be vested in the Inspector General of Police. This has been
heavily criticised by a vast majority of the Nigerian populace and
opposition political parties who are of the opinion that the Bill
seeks to deny the right to free speech and further empower the
government and indeed politicians to victimize their political
opponents and suppress critics.  Consequently, at the Public
Hearing held in respect of the Bill in March 2020, at the National
Assembly, the Bill was largely rejected by civil society
organisations and indeed members of the Nigerian public in
attendance.

Nothing has since been heard of the Bill since the Public
Hearing. The Senate has neither commenced a third reading of the
Bill nor called for another Public Hearing. For some, it is
testament that the will of the Nigerian people has prevailed over
the wishes of a select few. Others, however still nurse the
concerns that further attempts would be made in future to smuggle
the Bill into the country’s legislations.[7]

The Way Forward

In today’s highly polarised modern society the issue of social
media content regulation has become a hydra-headed conundrum.
Governments and regional bodies across continents are posed with
the question of how to curb the proliferation of the internet with
illegal content without trampling on highly cherished citizen
rights such as the freedom of expression and speech. It is firmly
believed regardless, that any pragmatic approach to regulating
social media must be one based on laws enacted after wide and broad
based consultations with relevant stakeholders – the general
public, social media users, the owners of social media platforms,
security agencies and lawmakers.

This would ensure, that whatever laws are made would be a
reflection of the true wishes of society and allow for little room
for criticism on inclusiveness in the future. In a similar regard,
it is also believed that the ultimate power to decide the
termination of a person’s access to a social media should not be
within the exclusive discretion of social media giants as this
simply too much power!

It is suggested here that the value of a social media account
(allowing an owner to achieve business advertising objectives and
branding, political goals, activism etcetera) is of too much value
to be treated trivially. Indeed, it should be equated with the
status of a bank account ownership. Consequently, the denial of a
person’s access to his account on the grounds of suspension/ban
should be a subject contestable/appealable before the Courts of
law. This truly would be allowing the law function as an agent of
social engineering.

Authors: Mrs. Onyinye Chikwendu-Ikechebelu & Echoga Caleb

Mrs. Onyinye, is the Practice Manager of Omaplex Law Firm 
and member of the project and asset finance group in Omaplex
specializing in project and asset finance focusing on international
aviation and shipping finance transactions.

While Echoga Caleb holds a commendable legal expertise in
intellectual property law, financial technology, and data
protection and privacy law.

[1] Ryan Browne, ‘Germany’s Merkel Hits out at
Twitter over ‘Problematic’ Trump Ban’ < https://www.cnbc.com/2021/01/11/germanys-merkel-hits-out-at-twitter-over-problematic-trump-ban.html^[1]
> Accessed, 25^th March, 2021.

[2] Ibid.

[3] Network Enforcement Act, 2017.

[4] Section 2(1), Network Enforcement Act,
2017.

[5] David Morar and Bruna Martins, ‘ The Push
for Content Moderation Around the World’ < https://www.brookings.edu/blog/techtank/2020/09/21/the-push-for-content-moderation-legislation-around-the-world/^[2]
> Accessed March 23, 2021.

[6] Section 474.34, Sharing of Abhorrent
Violent Material Act, 2019.

[7] Mathew Ogune, ‘Protests Against Social
Media Bill Persists in Abuja’ The Guardian (Abuja, 10
March 2021) < https://guardian.ng/news/protest-against-social-media-bill-persists-in-abuja/^[3]
> Accessed 10 March, 2021.