Regulating Platforms. Terry Flew

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СКАЧАТЬ and regulation surge onto the global agenda in the mid-2010s, and why has it remained there ever since? We are coming to the end of a long period of ‘soft globalism’ and polycentric governance of the internet at the international level, a period during which the prevailing view was that the best decisions were those made by ‘rough consensus’ in multistakeholder forums where governments were a relatively minor player. Why did we see the resurgence of tech nationalism? Why did governments start to ban the platforms of other countries, triggering concerns about a global ‘splinternet’?

      It is not hard to see when the sea change in attitudes towards the regulation of online environments happened. In the United States, it can be located in the transition from the Obama administration to the Trump presidency and in the range of concerns that the 2016 presidential election raised, from the circulation of fake news on social media platforms to allegations of electoral interference by foreign powers. The European Union chose to act on widespread concerns about the misuse of personal data online; the General Data Protection Regulation (GDPR) was enacted in 2016 and came into law in 2018, setting rules about how digital platforms and other online entities could make use of material provided by online ‘data subjects’. The GDPR demonstrated that the online environment, long held to constitute a realm beyond the territorial sovereignty and policy knowledge of governments, could in principle be regulated, and that digital tech giants would respond appropriately to the regulation of their activities by sovereign political entities. The GDPR preceded the Cambridge Analytica scandal – that is, the revelations of whistleblower Christopher Wylie to the Guardian’s journalist Carole Cadwalladr, in 2018, about how data gathered through Facebook were onsold to political campaigns such as the Vote Leave group in the 2016 Brexit referendum in the United Kingdom and the Trump campaign in the United States. Even so, the scandal threw into very sharp relief a range of concerns that had been simmering about the power of digital platforms and the possibilities of misuing it. Discussion of a ‘global techlash’ and the rise of the FAANG or FAMGA – acronyms for Facebook, Apple, Amazon, Netflix, and Google or, in a different version, Facebook, Apple, Microsoft, Google, and Amazon – became commonplace.

The argument of this book is that the push for greater internet regulation is integrally related to the platformization of the internet – that is, the process through which online interactions and engagements are increasingly made to take place on a relatively small number of digital platforms. Moreover, as the platform business model enables significant competitive advantages to accrue to dominant companies through first-mover advantages, lock-ins, and network effects, the companies that own these online spaces acquire monopolistic and oligopolistic economic power. Such derives from access to ever-growing bodies of user data that allow for behavioural targeting across multisided markets. This power extends not only over consumers but over other businesses as well, both through dominance of digital advertising and through the terms of trade that these giants can impose on digital content providers in the news media, entertainment, and other creative industries. With such power, however, comes considerable social responsibility, as the dominant companies increasingly perform a gatekeeping function over digital communications and play an outsized role in political processes around the world. Hence it becomes imperative that they set guidelines and moderate online speech across issues such as hate speech and online abuse, or disinformation and fake news. But these companies were strongly imbued with the Silicon Valley ethos of maximizing free speech rights and user engagement: this was both their business model and their underlying philosophy. In consequence, they have frequently been uncomfortable with managing online interactions in ways that satisfy the concerns of citizens, politicians, other stakeholders in their businesses, and the public interest.

A historical typology informs the book: in this typology, the evolution of the internet unfolds in three stages. The first stage, which can be broadly dated roughly from 1990 to 2005, is that of the open internet or libertarian internet, as we may call it. It was strongly infused by the Californian ideology – which is summed up in the slogan ‘free minds and free markets’ – as well as by deregulatory economics and countercultural idealism. The idea was that governments can and should be largely kept at bay in matters of regulating the internet, on the grounds that the spontaneous ordering introduced by global netizens would promote a liberal order underpinned by continuous waves of technological innovation.

      The second stage, from 2006 to the present, is that of the platformized internet. The rise of Web 2.0 brought together two significant insights: most internet users preferred environments that were managed and curated by others; and such environments enabled online interaction by simplifying processes of accessing content or using devices. As part of this welcome simplification, every online interaction produced a data trail that was potentially open to providing useful insights, which could in turn inform further economic transactions. This was the era of gestation of big tech and the companies that dominate digital communications today. Critics came to label it ‘digital capitalism’, ‘platform capitalism’, and ‘surveillance capitalism’. It has seen growing demands for antitrust action against the tech giants, calls for greater regulation of online activity in order to reduce social harms, and concerns that the digital sorting and reshaping of communities could promote political polarization and a ‘post-truth’ society.

The argument of this book is that we are now entering into a third phase of the internet’s evolution, namely that of the regulated internet. One of the questions I raise concerns the relationship between platform regulation and platform governance. One version is that regulation characterized twentieth-century communications and media policy, and especially nation-state agencies, whereas governance is a broader term that encompasses multiple stakeholders, policy innovation, and approaches derived from behavioural economics and nudge theories. Drawing upon six case studies that have operated at national, regional, and global levels, I critique this argument, proposing instead that the distinction is not so much between regulation and governance as it is between regulations that are applied by external agencies and have some form of negative sanction attached to breaking laws, and regulations that largely work upon implicit understandings of appropriate platform conduct and the promise of better corporate behaviour. The field is rendered more complex by the fact that governance is an inherent feature of platforms themselves, as they manage multiple stakeholders in diverse market environments that have high levels of public visibility around their decisions. This book argues (1) that public opinion and the role played by governments that seek to represent it push towards greater external regulation of digital platforms, and (2) that nation states are becoming increasingly important actors in shaping online environments. At the same time, many regulatory models are hybrids of nation-state regulation, co-regulation, and self-regulation. This is a space with high levels of innovation when it comes to types of regulatory approaches (the Facebook Oversight Board is a recent example) and with higher levels of civil society engagement, public interest, and media reportage than found in other industry sectors.

These developments are conceptualized in the book around the proposition that the development of digital technologies generally and of digital platforms specifically can be framed as arising at the intersection of ideas, interests, and institutions. Ideas refers to the dominant ways of thinking about material objects and relationships at any given time, but also to the ideas that challenge and compete with those dominant ways of thinking or ‘mental maps’, as they are sometimes called (Denzau and North, 1994). Interests consist of those entities that seek to advance their own power individually or collectively, in the economic, political, and cultural spheres. Digital platform companies themselves are clearly ‘interests’ in this special usage, and so are other businesses that have relationships with them (news media, entertainment, advertising, etc.), as well as organizations that represent conflicting or competing interests: trade unions, advocacy groups, consumer organizations, and non-government organizations (NGOs) generally. Institutions are those organizational arenas that have responsibility for governing and regulating digital platforms for particular outcomes. Through them the interplay of ideas and interests is played out and collective decision-making occurs – at local, national, regional and supranational levels.

      What we see from this angle is a mismatch between the rise of digital platform companies as dominant players in the global economy and de facto СКАЧАТЬ