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As policy-makers on both sides of the Atlantic seek to curb the power of the ‘big tech’ leviathans, is anti-trust the best tool to address speech online?

When the four titans of tech testified at a recent hearing in the US Congress, it was meant to be about anti-trust and market abuses. The technology companies were indeed put on the defensive about their monopolistic practices,  but some of the most difficult exchanges were about content and censorship. It raises the issue about their power over  speech, which presents a far more complex question for lawmakers than

‘mere’ market regulation.

The hearing  was  conducted on 29 July  by the United States Congress, Judiciary Committee: Anti-Trust, Commercial and Administrative Law  Sub-committee. The witnesses were the heads of the four  global technology leviathans  - Facebook’s Mark Zuckerberg, Google’s  Sundar Pichai, Apple’s Tim Cook and Amazon’s Jeff Bezos.

Facebook was the main target for the content-related questions. Certain Committee members  alleged bias, and others demanded more proactive take-downs. Several questions were along the lines of  ‘why did you restrict this content’ or ‘why do you discriminate against a certain viewpoint?’ Some  complaints related to the restriction of  right-wing content – what is euphemistically referred to in the US as ‘conservative’ content. Other complaints  sought tougher action against hate speech and misleading information on Covid-19, and asked why a ‘mass campaign of psychological warfare’ waged by Cambridge Analytica  had been able to run on the platform. .

It is an indicator of the way that social media  has  risen high up the political agenda. I compare this to 2007, when I first started in this field. Online content  was hardly recognised as a political issue. If mentioned at all, it related only to music and copyright.

In the past 13 years, the ‘big tech’ corporations have become global leviathans. They  control the structures of communication in a way that would have been the envy of the old telecoms monopolies. They have the ability to use their structures to wield enormous control over content – and to censor. This lies at the root of their political power.

As I argue in my book, The Closing of the Net, the power of the  technology platforms is vested in their infrastructure. It means  that they set the rules for how things are done. They control access to the user via a tiny and restrictive interface on a smart phone.  They determine how users can receive content, and they can make choices. Those choices are determined by algorithms, and the code is a tightly kept secret.

This puts them in the position where  they not only control the user environment on their platform, but  are  able to drive the policy agenda. It is known as structural power (see Susan Strange: States and Markets) and it can help to inform policy and regulation of the platforms.

Anti-trust law  - or competition law  in the EU - can address aspects of structural power but it is limited in its application because it only deals with markets. It’s about  exchanges of goods, services and money.  When it comes to the information structures that disseminate speech,  competition law lacks the necessary tools.

Anti-trust law is used where markets don’t function properly or break down. It  gives law-makers the tools to tackle market imbalances, which could be caused by monopolies or by dominant players that are abusing their position to squash smaller operators. It works on market definitions that are defined by Statute, and it varies by jurisdiction.

Hence, in the Congressional hearing, Amazon was grilled about  attempts to squeeze out smaller companies. Likewise, Apple was questioned about its practices in the AppStore. Google was asked about its advertising practices  manipulating search results.

An option for lawmakers is to legislate for price transparency and public oversight. The classic textbook example of this can be found in the Interstate Commerce Act of 1887 that sought to tackle   discriminatory pricing of the American railroad companies.   Another option for lawmakers is to break up the monopoly, like the 1982 break-up of AT&T into a long distance phone company with seven regional operating companies  - the ‘baby Bells’. 

On this side of the Atlantic, in the European Union, competition law has been used to tackle Google’s market and manipulating  searches, notably  the Google Shopping ruling of 2017. 

In today’s Internet world, there is a structural difference which will matter when it comes to any form of anti-trust or competition law action. Technology markets operate across borders, like a matrix. They are multi-dimensional. An AT&T-style break up would not be appropriate, but that does not mean there is no way to do it.  Breaking up the tech monopolies  along functional lines might be an alternative approach.

But when it comes to online content, the logic changes entirely. The  over-riding issue is not about markets, but about restricting  freedom of speech. A social media platform like Facebook  has the power to prioritise some posts and discriminate against others. It can  squeeze the distribution till it hurts.

This is about structural power and more innovative regulatory thinking will be needed. Something akin to a net neutrality law might come into the frame, for example.

The EU is working on new ways to look at regulation of the tech platforms. The European Commission Vice-President and Competition Commissioner, Margrethe Vestager, told the US Congressional Committee in a written intervention that the EU is looking at ‘going beyond purely economic considerations’ in order to ensure fairness. This could be an interesting move but we await the detail.

Overall, the structural power to censor is intimately connected with the  global dominance of the platforms. It creates  huge imbalances that can only be rectified by tough regulation and oversight of the platforms that works in the public interest. Anti-trust – or competition law – is simply ill-suited to this task. 

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Iptegrity is made available free of charge. You may  cite my work, with attribution.  If you reference the material in this article, kindly cite the author as Dr Monica Horten, Visiting Fellow, London School of Economics and Political Science , and link back to  Iptegrity.com. You will also find my book for purchase via Amazon.

About me: I’ve been analysing analysing content online policy for over 13 years. I hold a PhD in EU Communications Policy as well as a Post-graduate diploma in marketing. I've worked with the Council of Europe on Internet governance issues, and I was on the Committee that drafted the CoE Recommendation on Internet Freedoms. For many years I was a telecoms journalist, writing for the FT among others, and I was an early adopter of the Internet. My current research is on platform responsibility. Please get in touch if you'd like to know more about my work. 

If you liked this article, you may also like my book The Closing of the Net  which discusses the backstory to content online policy and it introduces the notion of structural power in the context of Internet communications . Available in Kindle and Paperback from only £15.99!   

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In 2012, I presented my PhD research in the European Parliament.

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Iptegrity.com is the website of Dr Monica Horten. She is a policy analyst specialising in Internet governance & European policy, including platform accountability. She is a published author & Visiting Fellow at the London School of Economics & Political Science. She served as an independent expert on the Council of Europe Committee on  Internet Freedom. She has worked on CoE, EU and UNDP funded projects in eastern Europe and the Caucasus. In a voluntary capacity, she has led UK citizen delegations to the European Parliament. She was shortlisted for The Guardian Open Internet Poll 2012.

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