Inside Facebook’s fight against European regulation
Dozens of Commission documents show how the tech giant
pushed back against rules on issues ranging from copyright to privacy.
By LAURA KAYALI 1/23/19, 5:41 PM CET Updated 1/24/19, 4:22 AM
CET
We don’t need no regulation.
That was the message from Facebook to the European
Commission over a period of four years, according to dozens of emails and
written accounts of arguments made by the social media company in private
meetings with Commission officials.
The documents show that the company’s representatives pushed
back against almost any form of regulation of its businesses in the EU.
“The industry does not need a regulatory push to improve,”
the company told the Commission in March 2016, according to the Commission’s
written summary of the meeting.
The internal Commission documents, dated from 2015 to early
2018, were obtained through a freedom of information request by Corporate
Europe Observatory, a lobbying watchdog.
“Facebook has consistently been tone-deaf about major
concerns brought to their attention" — Marietje Schaake, Dutch liberal MEP
They include summaries of meetings held with Commission Vice
President Andrus Ansip, Commissioner for Justice Věra Jourová, their respective
Cabinets, DG CNECT Director General Roberto Viola and his deputy Claire Bury,
among other Commission officials. Most of the meetings were organized at
Facebook’s request.
The message the tech giant delivered was not one the
Commission was primed to accept, according to lobbyists and officials who have
followed the growing effort in Brussels to regulate tech companies.
“Facebook has consistently been tone-deaf about major
concerns brought to their attention,” said Marietje Schaake, a Dutch liberal
member of the European Parliament who specializes in tech issues. “From their
impact on election outcomes, to spreading of conspiracies and hate speech, the
consistent message has been that regulation would stifle innovation. This is a
losing strategy in Brussels.”
On a range of legislation, ranging from privacy protection
to copyright reform to rules governing responsibility for illegal content
uploaded to internet platforms, the Silicon Valley tech giant’s arguments seem
to have fallen flat — as European Union officials moved forward with regulation
the company was warning against.
While lobbying is a normal part of the legislative process,
the documents underscore a disconnect between Facebook’s arguments and the EU’s
philosophical approach to lawmaking.
Some U.S. legislators might be sympathetic to the idea that
tech companies be left free to innovate or that consumers are best placed to
decide whom to trust with their data. Among European policymakers, the instinct
is to write protections into law.
“Facebook’s strategy is not adapted to dealing with the
European Union,” said Damir Filipovic, a former tech lobbyist who is now
director at the Brussels-based consultancy firm Europa Insights. “You cannot
come to Brussels with a Washington story about not wanting regulation for the
tech sector.”
A spokesperson for the European Commission said it is
“always ready to receive input from citizens and various stakeholders, such as
think tanks and business and civil society representatives, in order to make informed
political choices.”
‘Private law’
Facebook’s views on regulation led to tension with the
European Commission starting in 2016, when tech companies, including Google and
Facebook, worked with the institution on a code of conduct to fight online hate
speech.
The code aimed, among other things, to clarify how tech
firms should decide whether or not to remove content flagged by users. Tech
companies, including Facebook, wanted to be free to refer to their terms and
conditions instead of EU legislation, according to an April 2016 meeting
summary with the Cabinet of Commissioner for Justice Jourová.
The Commission “urged [them] to reconsider” this position
and argued that the tech companies should make their decisions using “national
law implementing the Framework Decision on racism and xenophobia” — EU
legislation that encourages national governments to introduce criminal
penalties for some racist and xenophobic acts.
The final text, adopted in May 2016, was a compromise
between Facebook and the Commission’s position.
“We cannot rely on self-regulatory methods for terrorist
content" — Věra Jourová, the European commissioner for justice
“Upon receipt of a valid removal notification, the IT
companies [commit] to review such requests against their rules and community
guidelines and where necessary national laws,” the final code of conduct reads.
Nonetheless, in subsequent meetings Facebook continued to
press its case, trying to convince the Commission that its internal rules
should take precedence over EU legislation or national law.
In January 2017, Facebook referred only to its terms of
service when explaining decisions on whether or not to remove content, the
documents show. “Facebook explained that referring to the terms of services
allows faster action but are open to consider changes,” a Commission summary
report from then reads.
“Facebook considers there are two sets of laws: private law
(Facebook community standards) and public law (defined by governments),” the
company told the Commission, according to Commission minutes of an April 2017
meeting.
“Facebook discouraged regulation,” reads a Commission memo
summarizing a September 2017 meeting with the company.
The decision to press forward with the argument is unusual,
said Margarida Silva, a researcher and campaigner at Corporate Europe
Observatory. “You don’t see that many companies so openly asking for
self-regulation, even going to the extent of defending private law.”
Facebook says it has taken the Commission’s concerns into
account. “When people sign up to our terms of service, they commit to not
sharing anything that breaks these policies, but also any content that is
unlawful,” the company told POLITICO. “When governments or law enforcement
believe that something on Facebook violates their laws, even if it doesn’t
violate our standards, they may contact us to restrict access to that content.”
When it comes to fighting online terrorist propaganda,
however, that argument was not enough to win over the Commission. The
Commission has put forward a legislation forcing platforms to take down flagged
terrorist content within one hour.
“We cannot rely on self-regulatory methods for terrorist
content,” Commissioner Jourová said at a conference this week.
The proposal is being considered by the European Parliament
and Council of the EU.
‘A service expected by users’
Another focus of Facebook’s lobbying was the so-called
e-Privacy Regulation — a Commission proposal the social media giant has
described as a “threat” to its business model, which relies on online
advertising.
Presented by the Commission in 2017, the regulation would
require companies to request their users’ consent to access and use personal
communications.
The measure is something the European public is demanding,
according to the Commission, which regularly cites a 2016 Eurobarometer survey,
in which 92 percent of respondents said they find it “important that the
confidentiality of their e-mails and online instant messaging is guaranteed.”
“Should I not be asked before my emails are accessed and
used? Don’t you think the same? Is this asking too much?” Vice President Andrus
Ansip tweeted in October 2017, when the Commission faced a fierce lobbying
campaign by tech giants like Facebook and Google, as well as European media
companies, telecom providers and advertisers.
Facebook repeatedly told the European Commission in 2017 and
2018 it did not want to be forced to collect users’ consent to process their
communications.
In different sessions with Commission officials during that
time period, gathering users’ consent was described as “too rigid,
disproportionately cumbersome, extremely burdensome and not user-friendly,”
according to minutes of the meetings. “Transparency and choice” is more
important than consent, Facebook argued.
Facebook tried to convince the Commission there is “no need
for a regulation” at all.
In a March 2017 meeting, the company argued the public is
free to use other services on the market if they don’t agree with Facebook’s
privacy policy.
In an effort to be excluded from the regulation’s scope, the
tech giant also argued that Facebook Messenger is “not a messaging service.” It
added: “It is much more than that because it can notify you about an event
which was mentioned during a conversation, it can suggest new friends based on
the content of discussions.”
In January 2018, Facebook told the Commission that the
processing of communications is “expected by users, and even more — a value
because of which people sign up for,” referring to suggestions for friends, events,
replies and others.
On copyright, the arguments Facebook made publicly differed
sharply from what it told the Commission behind closed doors.
“Facebook claims this is not a privacy violation but a
service expected by users,” the meeting minutes read.
The company’s arguments failed to sway the Commission, which
has continued to insist that companies obtain consent for the use of personal
information.
The Commission’s proposal has received the endorsement of
the European Parliament, but the Council of the EU — where national governments
have their say — has yet to adopt a position. The three institutions must agree
on any final legislation.
Meanwhile, Facebook continues to argue that it should be
able to process personal data on the basis of so-called legitimate interest —
which doesn’t necessarily require a user’s explicit consent. The British data
protection authority describes legitimate interest as the “most flexible lawful
basis for processing” personal data.
“As recognized in [the EU’s General Data Protection
Regulation], other legal bases for data processing, such as legitimate interest
or contractual necessity, might be more effective in promoting transparency and
control than consent,” the company told POLITICO in response to questions for
this article.
‘Technology, not legislation’
Another area of concern for Facebook is the possibility of
rules that would make it liable for content users upload to its platform,
including hate speech, terrorist content and copyrighted material.
“Facebook [is] concerned about a possible change in the
liability for intermediaries under [the] Digital Single Market,” Commission
minutes from an April 2015 meeting read.
The EU law governing responsibility for content on social
media platforms is the 2000 e-commerce directive, which does not hold companies
like Google and Facebook liable for illegal content posted by their users.
Companies must take down illegal content once it has been
flagged as such, but they are not required to actively prevent it from being
uploaded.
“Additional liability would be a barrier to Facebook and the
new business models on the platform,” the company said in July 2016.
European Commission President Jean-Claude Juncker elected
not to reopen the e-Commerce Directive during his mandate. But other
legislation, including a reform of copyright laws winding its way through
Brussels, could make Facebook liable for some of the content on its platform.
On copyright, the arguments Facebook made publicly differed
sharply from what it told the Commission behind closed doors.
In public statements critical of the reform, trade
associations representing Facebook, such as CCIA Europe or EDiMA, largely
played down the issue of liability. They focused instead on a proposal that
would require internet platforms to use so-called upload filters that would
automate the analysis of content, blocking anything that was illegal.
These, argued the trade associations, are tantamount to
censorship. “Filtering before upload will censor EU citizens online,” EDiMA’s
campaign slogan read in September 2018.
At the same time as trade associations representing Facebook
were warning against “upload filters,” the company itself was touting its
filtering technology in meeting with the Commission as an attempt to head off
measures that would make it liable for the content on its platform.
Referring to content protected by copyright, Facebook also
told the Commission in April 2015 that “every content uploaded by users is
filtered through Audible Magic software before actual upload. The measures
taken are kept at the level that would allow them to keep their status as a
hosting provider.”
According to the Commission’s minutes of a March 2016
meeting, Facebook said it had “invested important resources to develop
filtering mechanisms (copyright, bullying, terrorism, hate speech).”
In September 2017, one year after the copyright reform was
presented, the social media giant told the Commission it preferred
“collaborating and relying on technology rather than complex legislation that
risks being implemented in a diverse manner in member states.”
“It’s very common for the Silicon Valley to push against
regulation at all,” said Margarida Silva, of Corporate Europe Observatory. “But
those emails show very clearly that they have specific non-public policy
positions they are lobbying on,” Silva added, referring to the internal
Commission documents.
The European Parliament and EU national governments are
still in negotiatons over copyright reform.
If the text currently on the table, which is not final, were
to be adopted, Facebook would become liable for copyrighted content on its
platform and would be required to strike licensing deals with rights-holders
who want them.
When asked by POLITICO about the emails, Facebook argued the
company is “transparent about the technology [they] use.”
‘The right regulation’
Over the course of the last year, Facebook seems to have
switched tack on regulation, at least in its public statements.
In March 2018, the Guardian reported that the British
political consulting firm Cambridge Analytica had harvested the data of
millions of Facebook’s users in Europe and the U.S. for political purposes
without their knowledge.
Confronted by furious lawmakers on both sides of the
Atlantic, Facebook CEO Mark Zuckerberg did not push back against the idea that
the company should be regulated. Instead, he asked policymakers consider what
the “right regulation” should be.
It’s a shift in tone the company has widely adopted.
“Governments have a right and a duty to set rules and boundaries, and we are
supportive of the right regulation,” Facebook Chief Operating Officer Sheryl
Sandberg said at the DLD conference in Munich this week. “Governments have to
set standards, and companies have to work with them to make sure we can meet
them.”
For Brussels, that was never in doubt.
“Whether or not we should regulate tech is not the right
question [to ask],” Commissioner Jourová told a Brussels crowd this week. “The
question is what place tech should have in our society.”
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