Trump vs. Twitter: we need to change point of view on how we regulate social media

This time I side with Trump.

Twitter reminded us that we are all guests on their platform and we follow their rules. They have decided that the enough is enough and from now on they can put warnings, next to twits to inform us that they contain falsehoods. They also decided that although Trump has repeatedly violated the terms of service, he can continue to do so because he is him, and not a generic Mrs. Anna who can quietly disappear from the social network in silence.

This is not a failure by Twitter, but by the laws. The law allows a person to lie and to insult and it makes little difference if she does it at the bar in front of 5 patrons or on a social network in front of 80 million followers. If this falsehood or insult should result in damages, these will be ascertained and possibly sanctioned, in a process’ time, in civil or criminal proceedings. Freedom of expression ends up bordering on the freedom to lie.

By law, platforms enjoy exemption from liability if they merely carry the information and make it available, without altering it. If they alter it, they assume responsibility for it. (with different nuances in Europe and the USA). This follows as a principle from the same rules for which a telephone or postal operator is not responsible for the content transported.

In fact, Twitter has not altered Trump’s message, it has changed the way it is presented. Where does Twitter get its authority to decide who should and should not be subjected to such treatment ? To decide what is true and what is not ?

In an ideal world Twitter should not intervene in any way, if the laws would suffice to promptly and effectively sanction those messages that cause socially undesirable effects.

One problem is that our institutions are analogical, they live in a material dimension that is slow and badly suited to the syncopated times of social networks. The different speed is a problem.

When, in “understanding media”, McLuhann taught us that the medium is itself a message, there were wide audience gaps between the media. Pubs and publishing were (and are) evidently in different categories. And, while ensuring freedom of expression, they had different rules. Pub customers are not required to declare their identity while the publisher is required to declare his identity. In one case the right of rectification is not required while it is in the other. The bartender is not required to be vigilant, which is required of the publisher, etc.

But today this clear separation no longer exists in social networks; now there is a continuum. A person can have a pub or a publisher audience but the rules are the same, and that’s not good. We need a gradual set of rules, with balanced rights and duties, not linked to the medium but linked to the single account (or group of accounts).

Freedom of expression (and with it the right to lie, i.e. to have no verifiable objective evidence) must be protected, but the scale imposes different rules, to be provided for gradually (“regulatory ladder”).

Scale and speed are at the root of our ineffectiveness in regulating social networks.

We are wrongly following traditional models of accountability, as Trump did in response to Twitter in order to impose editorial responsibility by decree, and we do not understand that we have to regulate scale and speed in a graduated way.

In order to regulate speed, we need to introduce a gradual friction: it does not undermine freedom of expression if a message can be redistributed, beyond a certain scale, in hours rather than in real time. Eventually, limiting the mass diffusion in real time to those subjects who fall into a certain category, deriving different rights and duties compared to a generic bystander of the social network.

Regulating scale and speed makes it possible to introduce appropriate weights and counterweights and also allows for the introduction of frictions to make enforcement practicable.

Today, institutions, which do not keep pace with the explosion of social media, delegate to platforms the control functions that are implemented thanks to artificial intelligence (a computer method that structurally produces errors). The platforms, with their own rules, become a new power next to and above the State, with no possibility of appeal, as Trump is discovering at his own expense.

We have learned of Trump, given his notoriety. We will never know, however, how many times a Mrs. Anna is censored as a result of these systems or how many Mrs. Annas have been blocked.

Regulating scale and speed, structurally providing for mechanisms of remedy (“redress by design”) can help to restore the sovereignty of judgment in the institutional seats, ensuring the necessary protection of the parties.


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