Countless Australian laws and regulations hold companies accountable for the environmental, social and commercial impacts of their businesses. The time has come for the same approach to be taken with the global online players.
If you extract natural resources you become obligated by law to address the environmental damage caused by those operations. A supermarket chain seeking planning permission to build a major new retail premises must address the impact on local traffic and parking and add costs to the project to counter those impacts.
These are just examples of the legal and commercial counter-measures by which businesses obtain what might be described as a ‘social licence’ to undertake their profit making enterprises.
The same approach should be taken in Australia with the major online technology and social media companies. Their profitable enterprises similarly have inevitable social, economic and commercial impacts and they should be required to invest some of their (lets be honest eye-wateringly big) profits in addressing those impacts within the countries in which they operate. Call it their ‘social footprints’ to borrow a concept from our environmental regime.
The focus of this article has been prompted by reading the recent submissions put to the High Court of Australia on behalf of Google in the Google LLC v Defteros hearing. In that case Google is appealing an earlier Court decision that held that it was liable in defamation for the publication of search results that directed online users to an article published on The Age’s website that was defamatory of an Australian lawyer.
I could write another entire article on how that case deals with the concept of publication of defamatory material in the context of search engine results, but for now I just want to focus on how Google sought to characterise its online role and legal responsibility to the High Court, because it is those arguments that are of relevance to the concept of a company’s social licence to conduct trade in Australia.
Google, represented by rock star senior counsel Brett Walker, sought to characterise its online services with comparisons to clever bibliographies, community librarians, old fashioned telephone switchboard operators and people scribbling entire website URLs on scraps of paper for a friend. Mr Walker was at pains to stress that Google does not create internet content, but rather produces “an array of choices for the user”, assisting Australian online consumers to navigate an online world that is “an undifferentiated mass until a search is requested”. Bless them.
But all of that is clever legal argument obscuring the true objectives of Google’s business model and its genuine commercial influence on what we both find and consume online. If Google search results are to be accurately compared to enlisting the assistance of a librarian, then that librarian must be one financially motivated to direct you to books that get that librarian a personal financial bonus at the end of the month. Authors need to have paid considerable sums of money to the librarian to ensure that their books are the ones that are put directly under the noses of the punter. Because were Google search results to genuinely represent a mere ‘array of choices’ helpfully collated for the searcher to assist them to navigate the ‘undifferentiated mass’ that is the internet, then an entire industry sector would not now exist to assist businesses to make it onto those magic first pages. Because a consistent Google page one ranking is an online currency far more tangible than Bitcoin.
Google claimed in the High Court that it was a ‘passive’ service. A service that puts the interests of the searcher first, not the content creator. But read the Court arguments as closely as you like and you will find zero information on how this apparently ‘passive’ algorithm operates. That is a commercial secret more sacred than coca cola’s recipe or Colonel Sanders’ 11 herbs and spices.
Because how Google determines what is displayed when you search, well, anything, is the very life blood of its profits. Companies pay large sums of money to be automatically sent to the top of the class. Google maintains very close and clandestine control over what we most easily and quickly consume and from where. Change that dynamic and you kill the golden internet goose.
And the same dynamic exists on pretty much all of the main social media platforms. What you see when you access the websites run by Facebook, Instagram, TikTok and Snapchat are all driven by complex and guarded algorithms. Its big business that the internet heavyweights are rather keen to protect. In August last year Reuters reported that Google, Facebook and Microsoft were Europe’s three biggest spending lobbyists. Who were the next three? Apple, Huawei and Amazon. Those companies now overshadow the traditional top lobbying juggernauts being the pharma, fossil fuels, finance and chemical industries. If you are judged by the company that you maintain, then there is a clear message for lawmakers around the world, right there.
So if controlling what we find and consume online is now the world’s biggest business and makes the biggest profits, then my point is that they should come with the obligation to direct just some of those profits to dealing with the social and commercial costs arising from those operations. By making the internet’s ‘array of choices’ so quick and easy for us to gorge upon, there needs to be sufficient controls and adequate (i.e. well resourced and quick) responses to damaging content. Content that can unjustly ruin reputations. Destroy families and livelihoods. That can literally end lives.
But that costs money. No doubt a lot of money. Presently companies like Facebook ‘police’ what their websites publish to the world using what can be fairly described as ‘call centres’ in countries with very low labour costs, such as the Philippines. Its about speed, not accuracy. Complain about someone’s content and often you will receive a ‘nothing to see here’ response. That is because someone, somewhere, likely had about 5-10 seconds to review the merits of your notification. If its clearly an indecent photograph, or uses a major brand/logo, you stand a chance of swift action at the first attempt. Otherwise, good luck, as a response to the complaint is seen as a tick in the ‘actioned’ box and the online world has now moved on.
And that is where I am saying the social licence argument should kick in. In nearly every country around the World the social media and tech giants make their services available online, sell marketing services using their algorithms to those that would seek to promote certain content, and then sit back and enjoy the profits. They are not in my view adequately held to account to properly finance support and review services to address the negative social and commercial impacts that they either directly cause, or else amplify and exacerbate. And those outcomes and impacts are both inevitable and measurable.
And what do I think a online social licence should look like? Applying concepts from my opening analogies, I would propose that giants such as Facebook and Google be required to employ, within Australia, a minimum number of full-time staff for every 100,000 users of their services. That way the costs of addressing the negative impacts of their business operations can be both tailored to and made effective within the country in which they are being suffered, at a level proportionate to their footprint. The obligated remedial counter measures also then produce gainful employment within the Country from which the profits are being made – which should at least mean that some relevant tax gets paid.
But do not expect even fair and proportionate measures of that nature to be easily stomached by the tech giants. They do not spend their many millions on lobbyists and expensive legal teams and expect to see those kinds of outcomes.
Roger Blow is Practice Director at Cove Legal. He is a commercial litigator but specialises in defamation, tax disputes, insolvency and the health sector.
