Facebook has been accused of strategizing to interfere with Australia’s legislative process, by deliberately blocking Facebook pages for emergency, health and government services during its news blackout in February 2021.

According to a report from the Wall Street Journalemployees of the company have presented evidence supported by Help for whistleblowerswhich suggest an internal team was specifically tasked with creating “an overly broad and sloppy process for removing pages”, while also taking deliberate steps to hide information about their plans.

The whistleblowers allege this was done to gain an advantage over the Australian government and secure key changes, before a bill is passed. In a deeply ironic twist, the purpose of the bill was to counter Facebook’s excessive bargaining power.

If the allegations are found to be true, there are likely to 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 flashes of global attention. This peaked with 2021 Media Trading Codea law designed to encourage Google and Facebook to make deals with news publishers to support the cost of public interest journalism.

The law is best known for Facebook’s retaliation. On February 18, 2021, Facebook acted dramatically previous threat and imposed a “news recall” or “blackout.”

The platform deleted tens of thousands of Australian pages. cast they weren’t just news pages – 17,000 pages representing government, charity, health, and fire and emergency services were also blacked out on the platform.

The story of Facebook was i had no choice. The federal government had passed the bill through the lower house the previous night. “with a heavy heart”, Facebook proceeded with the blackout, since the alternative was “to try to comply with a law that ignores the realities” of the value of Facebook, he said.

Facebook apologized for “inadvertently” removing non-news content and vowed to review affected pages.

Subterfuge and consequences

Organizations cared about their pages. politicians and the journalists attacked Facebook and the government to fix the situation and, on the sidelines, many of us lament how devastatingly dependent we have become on an easily accessible but fragile privatized technology infrastructure. Meanwhile, Menlo Park sent in its negotiators.

Chief Executive Mark Zuckerberg and his deputies directly negotiated with Treasurer Josh Frydenberg and Communications Minister Paul Fletcher breaking the fourth wall while an artifice of the democratic process hung; other elected representatives frozen and forgotten halfway through the capital.

Between Thursday and Monday, the men forged a new deal, with Facebook demanding four concessions. The net result is that the company can virtually ignore the law (a stick), as long as it makes some meaningful deals with major media players (the carrot), which it has since.

In the days that followed, Australia’s upper house accepted the amendments and Facebook updated its statements, with a heavy heart, expressing its “satisfactionThe government had agreed to his changes. With its mission accomplished, the takedown ended.

New revelations of corporate deception

Now, 14 months later, an extraordinary story in the Wall Street Journal reveals that there was nothing unintentional about Facebook’s actions during that crucial week of parliamentary session in February 2021.

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

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

In addition to over-blocking non-news Pages, the complainants also allege that Facebook deliberately disabled typical support measures that would have better targeted the blocking and more quickly reinstated the effects of the over-blocking, and refused to investigate the concern of several Facebook employees that I noticed the dangerous impact the blocking was having.

Finally, it is stated that all this happened in secret, with relevant employees. instructed not to keep written records, and required to sign specifically created confidentiality agreements.

The timing of the removal rebuked and embarrassed lawmakers, and provoked a vociferous and emotional public response, enhancing Facebook’s chance to negotiate an advantageous outcome outside of the democratic process.

The criminal consequences

Australian law has robust and established mechanisms for responding to bad faith behaviour. Especially when behavior exploits and abuses the innocent, or violates moral boundaries, we call on criminal law to protect those who cannot protect themselves.

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

Fraud offenses appear in both federal and state criminal laws in Australia. They require proof of intent to dishonestly 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 duties.

fraudulent conduct

How could it be argued that Facebook committed the crime of fraud? First, the whistleblowers’ assertions suggest that there was an intent to systematically deceive by establishing a black ops team designed to keep their activities unrecorded and to imply through public statements that the excessive blocking was “inadvertent” in instead of calculated

The purpose was to secure an economic advantage for Facebook, at the expense of all the news publishers included in the bill.

Before starting its takedown strategy, Facebook would have been required deal in good faith with all news publishers of a certain size in Australia. You may also have had to ensure that the payment terms met the “non-differentiation” test of the inter-publisher law.

The concessions Facebook got during its calculated blackout mean it can now decide who it engages with and what the business terms are, without worrying about differentiation. And there are additional hurdles you can use to stop arbitration. All of these clearly offer an economic gain to the company.

Instead, the amendments to the bill caused a loss for publishers across the country, who were deprived of the opportunity to be fairly compensated for the contribution their journalism makes to the Facebook platform.

Finally, by creating extraordinary time pressure in a context of inflated content removal, Facebook dishonestly influenced the ability of public officials to exercise their public duty, especially to protect those whose interests had prompted the law in the first place. such as small and medium enterprises. editors

Negotiate with terrorists

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

An action is a terrorist act if it has the above characteristics and also causes a serious risk to the health or safety of the public or, alternatively, seriously interferes with or disrupts an electronic system, including an information system, a telecommunications system, or a computer system. used for the provision of essential government services. This puts a whole new complexion on Facebook’s unilateral blocking of large swathes of electronic communication at the heart of Australia’s bushfire season and pandemic response.

There is a renewed energy, in Australia and elsewhere, to think about criminal guilt for Big Tech companies that cause serious damage.

Facebook’s behavior in Australia, previously dismissed as a business freedom issue but not that far removed from an act of terrorism, could be the test case we need. – rappler.com

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

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


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