Inspired by unknown unknown drones, Professor Chris Marsden scans the skyline with thought on Brexit, net neutrality and the regulation of social media
I am writing on Christmas Eve, shortly after the phantom menace closed Gatwick Airport for the best part of three days – there are unknown unknown drones. Predicting the future has become an exercise in the even more surreal, but I will as usual recap where I went wrong last year while making yet more foolish forecasts.
Here’s my first forecast: hard Brexit will happen even though it will have less than 25% popular support and will be as successful as invading Iraq to stop Weapons of Mass Destruction. Its effect on UK digital services is a real unknown unknown as it is unclear whether we will be seen as a – literally – inadequate third country.
I explained last year that: “The vigorous action on social network regulation has not happened, despite urging from national and European politicians in view of terrorist content, sexual abuse, fake news and the other vile elements of human society manifested on the Internet”. European regulators continue to rely more on corporate social (ir)responsibility than hard law. That political giant Nick Clegg recently became Facebook’s global head of government relations, and his conversation with Zuckerberg about Cambridge Analytica, Bannon and the Mercers, and Aaron banks’ Facebook Brexit campaign must have been a delight. It convinced him there will be no People’s Vote, though his conversation with his mentor, the recent departed statesman Paddy Ashdown, must have been unedifying.
I recently completed a multinational multidisciplinary report for the European Parliament (video linked), arguing that Facebook, YouTube and others must employ European citizens to assess disinformation (‘fake news’) in advance of the European elections of May 2019, not rely on largely inaccurate Artificial Intelligence (sic). Edited highlights of that report will be forthcoming in Computers and Law.
Last year, I wrote “I would estimate 2019/20 would be the date of hard law requiring ‘Notice and Action’ within one hour of complaints about illegal content online.” I stand by those dates, and I predicted it in my ‘Internet Co-regulation’ and ‘Regulating Code’ books of 2011 and 2013. Prepare for some hat-eating in next year’s predictions if I am wrong. I also wrote that “The European Commission record fine for Google is being appealed for 2018, but it will have to accept some kind of co-regulation of its vertically integrated advertising in time.” I stand by that too!
Net neutrality continues to be a research interest of mine (the book can still be bought!) I was an expert reviewer of the recent study for the European Commission that marked the first triennial review of Regulation 2015/2120 – its conclusions were unsurprisingly that the lack of enforcement to date means it is too early to tell how useful it will be. But elsewhere in the world, zero rating is more controversial, not least because the use of zero rated WhatsApp in data-poor Brazil appears to have helped swing the avalanche Presidential election of scarily old-fashioned fascist Bolsonaro. Expect far more frightening populists to use WhatsApp group messaging to spread lies online in elections in 2019. Fortunately, most European democracies use proportional representation which is less immediately susceptible to tipping into authoritarianism.
I will finish this year’s predictions by repeating last year’s final paragraph, if anyone is still reading this far down! A final prediction, based on last year’s predictions by me: Brexit will not really happen, at least not for IT companies. How can I be sure? The Data Protection Act 2018 has to be implemented precisely in ensuring the UK as a third country appears identical to the EU. The more controversial intermediary liability cases recently were those of the European Court of Human Rights in Strasbourg, which we will still follow even after hard Brexit, not those of the Luxembourg court. We must follow European law slavishly even if we no longer influence and shape it. Of course, as Orwell noted, it would be better if the sane part of the British ‘family’ ran government instead of the Brexiteers and I have not lost hope that the final offer will be so unpalatable, not least to the Unionists in Northern Ireland, that the government falls and we choose to stay in the EU.
Professor Chris Marsden is Professor of Internet and Media Law at the University of Sussex.