Level Playing Field

Traditional communications service providers are subject to all kinds of regulatory obligations, as is usually the case in the network industries. However, platforms tend to be exempted from these obligations, even if the services they provide tend to increasingly compete with or even substitute the traditional communications services. This is the case with voice and instant messaging services, as well as of media services. A level playing fieldis necessary for rhe competition between the traditional communications networks and the new communications platforms.

A fundamental divergence exists in the regulation of liability between communications networks and communications platforms. While postal operators, telecom carriers, and media companies are considered liable for their services, digital platforms have been largely exempted from liability. Such divergence has benefited platforms in their competition with traditional communications networks.

Regulation has always considered communications corporations to be fully liable for carrying out their business ventures. Corporations pulled together assets and staff under a hierarchical structure. As hierarchical structures, there was no difficulty in considering the decision-makers in such structures liable for their decisions in the management of the structure. Communications corporations would be liable for the quality of their services, for fairness in the relationship with consumers, for the pricing of their products, and, in general, for any breach of legislation. Sector-specific regulation could be imposed on these corporations to attain public interest objectives: universalization of the service, rate regulation, and so on. Thus, communications corporations are heavily regulated, as is common in network industries.

The exception in the communications industries would be defined for the conveyance of messages beyond the control of the network managers. Postal and telecommunications carriers would not be liable for the content of the communications: letters and phone calls. Content would actually be protected from the control of the network managers, and the users’ right to secrecy of communications is constitutionally enshrined. Legal interception of communications under exceptional circumstances would be regulated. These principles would be extended to the access to internet services provided by traditional carriers.

Media editors, by contrast, were made liable for the messages broadcasted by newspapers, radio, and TV stations. Such messages were no secret, of course, but were crafted for the widest circulation. Editors had access to the content to be broadcasted and, being hierarchical structures, editors had the possibility and the obligation to ensure that broadcasted content would meet legal and regulatory obligations.

As described above, at the turn of the century, platforms were exempted from liability in the provision of their services both in the US and in the EU (Chapter 9). Platforms were assimilated to postal and telecom carriers merely conveying messages over which they have no editorial control and were even hidden from the network managers. Platforms providing email and instant messaging service might be merely transporting messages produced by third parties with no liability, just like their traditional peers. However, there would be no fundamental reason to exempt them from obligations such as lawful interception, financial contribution to the universalization of basic communications services, quality of service, and so on. The European Electronic Communications Code has already extended its scope to communications platforms, imposing some obligations on platforms, even if not all the obligations that are imposed upon traditional carriers, as exposed in Chapter 8.

The debate is more heated around media platforms’ liability. While editors of traditional media are liable for the content they broadcast, platforms such as Facebook and YouTube are exempted from liability, as long as they take down illegal content when required. Platforms claim that they are not producing nor exercising editorial control over content. They would merely act according to the Good Samaritan rule and take down obviously illegal content such as pedophilia and hate speech.

We already know that platforms such as Facebook and YouTube are not neutral intermediaries. Their algorithms actively determine the content to be displayed to their audience. They might not produce the content displayed in the platform. They might not actively select the content to be broadcasted as the editor of a newspaper or a radio and TV station. The algorithms developed by the platforms might not select content like a traditional editor, but they do determine the type of content to be displayed. They determine the parameters to be used by the algorithms. They can promote clickbait or they can promote reliable sources of content. They are in a position to control the results of the algorithm to ensure such results are in line with the platform’s goals.

Thus, public authorities on both sides of the Atlantic are considering increasing the liability of platforms. It is not necessary to align the liability to that of a traditional editor; this would not be fair as platforms are not hand-picking content for their audiences like a traditional editor does. Nevertheless, platforms should be liable for what they do: for the promotion of certain types of content to their audiences.

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