Upper house

Should Facebook be criminally liable for interfering with Australia’s legislative process?

Facebook has been accused of devising a strategy to interfere with Australia’s legislative process, deliberately blocking emergency, health and government service Facebook pages during its February 2021 news blackout.

According to the report of the wall street journalemployees of the company provided evidence with the support of Help for whistleblowerswhich suggest that an internal team was specifically tasked with creating “an overly broad and sloppy process for deleting pages”, while taking deliberate steps to hide information about its plans.

Whistleblowers say it was done to gain an advantage over the Australian government and secure key changes, before a bill was passed into law. In a deeply ironic twist, the purpose of the bill was to counter Facebook’s excessive bargaining power.

If the allegations turn out to be true, there will likely be legal repercussions. So what can we expect?

The chain of events

In recent years, Australia’s efforts to rein in Big Tech have earned it rare flashes of global attention. This peaked with the 2021 News Media Trading Codea law designed to encourage Google and Facebook to enter into agreements with news publishers to support the cost of public interest journalism.

The law is best known by Facebook reprisals. On February 18, 2021, Facebook took dramatic action prior threat and imposed a “news pullout” or “news blackout”.

The platform erased tens of thousands of Australian pages. And that were not just news pages – 17,000 pages representing government, charity, health, fire and emergency services also went black on the platform.

The story of Facebook, that was it had no choice. The federal government had passed the bill by the lower house the night before. “With a heavy heart“, Facebook proceeded with the blackout because the alternative was to “attempt to comply with a law that ignores the realities” of Facebook’s value, he said.

Facebook apologized for “inadvertently” removing non-informative content and committed to reviewing the affected pages.

Subterfuge and fallout

Organizations worried about their pages. The politicians and journalists railed in various ways against Facebook and the government to resolve the situation and, on the sidelines, many of us lamented how dependent we have become on an easily accessible, but fragile, privatized technological infrastructure. Meanwhile, Menlo Park has sent in his negotiators.

Chief Executive Mark Zuckerberg and his deputies negotiated directly with Treasurer Josh Frydenberg and Communications Minister Paul Fletcher breaking the fourth wall as a artifice of democratic process hung; other elected officials frozen and forgotten at mid-level in the capital.

Between Thursday and Monday, the men reached a new deal, with Facebook demanding four concessions. The net result is that the company can virtually ignore the law (a stick), provided it strikes significant deals with key media players (the carrot) – which it has since done.

In the days that followed, Australia’s upper house accepted the amendments and Facebook updated its statements with a heavy heart, expressing its “Satisfaction“The government had accepted his changes. Once his mission was accomplished, he ended the dismantling.

New revelations about corporate deception

Now, 14 months later, an extraordinary story in the the wall street journal reveals that there was nothing inadvertent about Facebook’s actions during that crucial week of parliamentary sitting in February 2021.

The whistleblowers described in detail how a Facebook critical response team spent seven months meticulously planning the takedown in a way that would achieve favorable results for Facebook.

They claim that this happened thanks to the knowledge and support of the company’s top executives. Photos from internal Meta emails show COO Sheryl Sandberg praising the team for “strategic thinking” and “precision of execution,” with Zuckerberg echoing the praise.

In addition to the overblocking of non-news pages, the whistleblowers also claim that Facebook deliberately disabled typical relief measures that would have both targeted the blocking better and restored the effects of the overblocking more quickly, and declined to investigate the concerns of several Facebook employees who noticed the dangerous impact the blocking was having.

Finally, it is claimed that all this happened on the sly, with the employees concerned instructed not to keep a written record and required to sign specially created non-disclosure agreements.

The timing of the takedown chastised and embarrassed lawmakers, and galvanized a vocal and emotional public response, enhancing Facebook’s ability to negotiate an advantageous outcome outside of the democratic process.

The penal consequences

Australian law has strong and well-established mechanisms to respond to behavior in bad faith. Especially when behavior exploits and abuses innocent people, or violates moral boundaries, we call on the criminal law to protect those unable to protect themselves.

With the major caveat that criminal prosecutions require the support of government prosecutors to bring them to justice, on the face of it, two key offenses are arguable from these recent revelations: fraud and terrorism.

Fraud offenses appear in federal and state criminal law in Australia. They require proof of intent to dishonestly obtain a gain or cause a loss to another. There is also a specific offense of dishonestly influencing a public official, such as a minister, in the performance of his or her duties.

Fraudulent behavior

How could it be said that Facebook engaged in the offense of fraud? First, the whistleblower’s claims suggest that there was an intention to systematically deceive by setting up a covert operations team designed to leave no trace of its activities, and to imply through public statements that the overblocking was “inadvertent” rather than calculated.

The goal was to secure an economic advantage for Facebook, at the expense of every news publisher that fell under the bill.

Before launching its withdrawal strategy, Facebook would have been necessary negotiate in good faith with all news publishers of a certain size in Australia. He may also have had to ensure that payment terms met the law’s test of “non-differentiation” between publishers.

The concessions Facebook won during its calculated blackout mean it can now decide who it engages with and what the terms of trade are, without worrying about differentiation. And there are additional hurdles he can use to block arbitrage. All this clearly offers the company an economic gain.

Conversely, the bill’s amendments caused a loss to publishers across the country, who were deprived of the opportunity to receive fair compensation for their journalism’s contribution to the Facebook platform.

Finally, by creating extraordinary time pressure in the context of bloated content removal, Facebook dishonestly influenced the ability of public officials to perform their public duty, particularly to protect those whose interests had driven the law in the first place, such as than small and medium-sized enterprises. publishers.

Negotiate with terrorists

Terrorism may seem extreme, but consider the fundamentals of a terrorist act under Australian federal criminal law. First, an intention to advance a political, religious or ideological cause. Second, the intent to coerce or intimidate government or the public. Both elements are more than debatable on these facts.

An action is a terrorist act if it exhibits the above characteristics and also causes a serious risk to the health or safety of the public or, alternatively, seriously interferes with or seriously disrupts an electronic system, including an information system, a telecommunications system or a system used for the delivery of essential government services. It puts a whole new spin on Facebook’s unilateral blocking of large swaths of electronic communication in the midst of Australia’s bushfire season and pandemic response.

There is renewed energy, in Australia and elsewhere, to reflect on criminal guilt for Big Tech companies that cause serious harm.

Facebook’s behavior in Australia – previously dismissed as a matter of commercial freedom, but not so far removed from an act of terrorism – might be the test case we need. – Rappler.com

Julia Powles is Associate Professor of Law and Technology and Director of Minderoo Tech & Policy Lab, an interdisciplinary research institute at the University of Western Australia Law School with a mandate to challenge lawlessness and create pro-public alternatives in the tech ecosystem. Twitter: @juliapowles

Hannah Smith is a research fellow at the University of Western Australia and leads work on new governance mechanisms to respond to emerging technologies at the Minderoo Tech & Policy Lab. She obtained her BA in Jurisprudence, BCL, MSt in Socio-Legal Research and DPhil in Socio-Legal Studies from the University of Oxford. Twitter: @92HSmith