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Danger ahead

| Monday, September 6, 2021

In January 2021, Facebook and Twitter shut down accounts on their platforms belonging to social media bloggers associated with the government and the ruling party in Uganda. This followed the indefinite suspension of President Trump’s accounts on both platforms in the wake of the siege on Capitol Hill. Recently, Facebook has been involved in a brawl with the Australian government and with the military junta that usurped power in Myanmar. More recently, in June 2021, Twitter deleted a tweet by Nigerian President, Muhamad Buhari. Whereas President Trump had no recourse, the President of Uganda retaliated by having both Facebook and Twitter blocked in Uganda until the positions of the two parties were harmonized. Twitter was opened, eventually. Access to Facebook remains restricted in Uganda. Once again, these incidents have brought to the fore the debate on the power of big tech and its implications for democracy around the world. 

Regulation of social media by the owners of these platforms is necessary. However, it cannot be done in contravention of the constitution of any given jurisdiction. In the first place, we must acknowledge that whereas free speech is crucial to democracy, it is not an absolute right. To the extent that it can endanger life and threaten public order, free speech ought to be regulated. People should be free to say whatever they want provided they don’t breach public order or endanger the lives of others. To this extent, therefore, it can be argued that both Facebook and Twitter acted in public interest by taking down accounts associated with activity likely to breach public order or endanger the lives of others. Yet, whereas the motive of both Twitter and Facebook can be said to be good, their method wrong. By unilaterally regulating free speech in accordance with their terms of use or ‘community standards’ as it were, not only have social media companies illegally abrogated themselves the right of regulating free speech in society, but they also threaten to undermine the power of duly elected governments around the world — the legitimate representatives of the people.

Free speech is so crucial to democracy that its regulation cannot be left to private interests. Being such a controversial matter at the heart of democracy, free speech should only be regulated by citizens themselves through their public representatives, not by money concerns posturing as guardians of the public order. As commercial firms, Facebook and Twitter are essentially profit-driven entities. Profit considerations come first in their calculations, including in their decisions and actions in regulating free speech. That is, their primary consideration is not the public interests, even if it appears to be so. Whereas elected representatives could sometimes have perverse interests that can conflict with the public good, however, given that they exist to protect the public good, the choice of regulator between them and private entities cannot be clearer. Moreover, public regulation of free speech gives such regulation the force of the law which ensures that there is a standard reference point for settling disputes that might arise thereof. In other words, restrictions on free speech must have a constitutional basis. Whereas the motives of Twitter and Facebook can be in public interest in some cases, their methods are wrong in as far as they do not hold any public office to preside over the regulation of such a sensitive matter nor do their actions have a basis in the constitution of the places where they operate. The constitution, as the contractual agreement between associated people’s ought to provide guidance on the matter or the actors who move to regulate free speech on the grounds discussed above, must draw their power from the constitution. Yet, if all these different platforms have their own ‘community standards,’ arbitration becomes complicated. 

Some people have invoked some notion of property rights arguing that as private platforms, Facebook and Twitter have a right to do as they wish on their platforms. However, Facebook and Twitter are not purely private entities. These platforms are essentially virtual communities. In other words, they take physical society and refashion it in virtual ways. Whereas they have ownership of the infrastructure to make this possible, we ought not to confuse ownership of that machinery with an absolute ability to introduce private standards that human beings, as legal persons, must interact with  on these platforms. Neither should our consent to the community standards of these platforms be taken to mean a surrender of our rights and power as citizens of a democratic society or any other kind of political community for that matter. These rights and power are prior to Facebook and Twitter and under no circumstances are they to be overridden except in the courts of law on the basis of the constitution as the arbiter of social conflict. Indeed, it goes without saying that even these platforms by their very existence within a political community with defined rules are subject to the law of the land, and under no circumstance, not even the claims to being a private entity, can they arrogate themselves power to regulate public discourse, a power which they do not have, and which has a basis only in the constitution and not in the modus operandi of some self-serving corporation. This is more important if we consider how crucial free speech is to a democratic society and how the usurpation of that power undermines the people’s validly elected and legitimate representatives.

In sum, therefore, there is no legal basis for Facebook and Twitter to arrogate themselves power to regulate sensitive a matter to democracy as free speech as they neither hold public office nor do they have a basis in the constitution. Appointing themselves as the chief priests of ‘truth’ and the arbiters of political contests as in Uganda and Myanmar is just the hubris of undue excessive power arising from private interests being left to their own devices. 

Trevor Lwere is a senior at Notre Dame majoring in economics, with a PPE minor. He hails from Kampala, Uganda and is currently abroad. He is a dee-jay in his other life and can be reached at [email protected]

The views expressed in this column are those of the author and not necessarily those of The Observer.

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