Issue link: https://maltatoday.uberflip.com/i/1466941
Eric Heinze Eric Heinze is Professor of Law at Queen Mary University of London ELON Musk is the planet's number one billionaire. If anyone can turn cy- berspace into a heaven – or hell – of free speech "absolutism" via a US$44 billion (£35 billion) Twitter takeover, then surely he's the man. Right? When free-market elephants like Musk or Jeff Bezos (who bought the Washington Post in 2013) take charge of major mass-media outlets, con- cerns are raised about the direction of free speech, which remains the essen- tial ingredient of democratic partici- pation. This feeds into wider concerns around the ever-increasing privati- sation of public spaces. In the online age, the fact that we spend so much of our time in private spaces earning advertising revenues for billionaires is seen by many as an affront to human dignity. The Twitter deal may only move ownership from one set of pri- vate hands to another, but the fact that the world's richest (and controversial) billionaire is involved seems to make it worse. But the reality is more complex. The nostalgic idyll of free speech is that once upon a time there was a "town hall" or "public square", where citi- zens would come together as equals to debate the issues of the day. Every idea could be freely aired because an enlightened citizenry would sift truth from falsehood, good from evil. The people's elected representatives would then proceed to reach con- clusions faithful to the "will of the people" and would frame wise laws accordingly. Those images of a town hall or public square are assumed to be public in the full sense – they are freely open to all, and no private citi- zens own them. In fact, no such arenas have ever ex- isted, at least not in modern democ- racies. In years gone by, blasphemy laws in many western nations placed restrictions on people's abilities to speak with candour about what was, at the time, far greater church influence over public policy. More importantly, women, ethnic minorities, colonised people and others often enjoyed noth- ing like the prerogatives to speak out without fear in the public forum, let alone as equal citizens. Yet myths often contain a grain of truth. There can be no question that protest and dissent which used to take place in public spaces has now largely shifted to online media platforms that are owned and operated by private companies. (We do still have street demonstrations, yet even they rely upon online publicity to swell their numbers.) Public power Yet if we should not underestimate the power of private media interests, neither should we overestimate it. Al- most the same day as Musk's Twitter deal broke, the European Union an- nounced it would adopt a Digital Ser- vices Act. This will vastly increase the bloc's powers to restrict content that pro- motes terrorism, child sex abuse, hate speech (which the EU has tended to define in broad terms), disinforma- tion, commercial fraud, and other speech that poses problems for indi- vidual safety or democratic society. I should say, as I have written else- where, that I disagree with several elements of the EU law, and of simi- lar UK rules, but that is not the point here. The point is that even Musk's billions will not shield him. He can go ahead and fire all Twit- ter's speech monitors if he wants to, but it will not be long before he needs to rehire them. For each of the cate- gories of content that are covered in the EU law, hefty fines can be levied for breaches, so the only way to avoid the fines would be to continue doing monitoring. In fact, why were these monitors ever hired in the first place? It was not because Facebook, YouTube, Twitter and other online platforms started out with a profound social conscience. Quite the contrary: they started out very much as the supposed free speech absolutists that Musk now fancies him- self to be. As American companies, they assumed they would follow free speech law as set down under the first amendment to the US constitution. Since the 1960s, the US supreme court has construed the first amend- ment to allow more provocative speech than other nations have al- lowed. Nonetheless, and contrary to popular belief, even US law is by no means absolutist about free speech and never has been. Loads of speech is regulated, such as restricted mili- tary data, professional confidentiality agreements and details of jury pro- ceedings, to cite only a few among many examples. As I explained in my 2016 book, Hate Speech and Democratic Citizenship, no society has ever permitted absolute free speech, and nor is that something that any legal system would ever have the means to sustain. Our arguments about regulation are always about de- gree, and never all or nothing. Unsurprisingly, the first-amendment bubble of the big US online media plat- forms quickly burst. Given their global reach, they are subject to the laws of all nations in which they operate. Once the EU started cracking down, these companies were suddenly hir- ing legions of online monitors. And the new EU laws – completed before Musk's takeover was even in the works – show that countries hosting key markets can bear down even harder. The coming showdowns will there- fore not be between dictatorial cen- sorship in the one corner and free speech absolutism in the other. They will be between business and govern- ments. And as Elon Musk will soon be aware if he is not already, plenty of governments seem up for the fight. Not even Elon Musk is wealthy enough to bring absolute free speech to Twitter OPINION 5.5.2022