news hokey-cokey

Facebook's week of dancing the hokey-cokey – it put the news tab in, it pulled the news tab out, it out the news tab in and it shook it all about – is over, and we're watching the dust settle. 

A quick lay-of-the-land, for those who haven't been following this news as closely as I have. Australia has spent the last few years working towards the creation of legislation which would force large tech companies – specifically named by a state body, and in practice limited to only Google and Facebook – to enter binding arbitration with the news industry to pay for their use of news on their platforms.

Both companies said the requirement would harm their ability to operate in Australia, but as the legislation came closer to passing, negotiations intensified. Google signed individual deals to pay almost all of Australia's large news organisations, and was effectively rewarded by being told it wouldn't be named in the secondary legislation; Facebook, in contrast, initially pulled news out of Australia altogether, sparking an almighty shitstorm, before it reversed course, and came to effectively the same deal as Google.

Both companies are, as a result, not directly covered by the legislation any more, but are now paying the Australian news industry much more than they were previously. Everyone is declaring this a victory for their side. 

Australia's war on tech has been interestingly polarising, breaking across different axes than normal. There's a stark Australia vs rest-of-the-world divide, for one thing, with the measures gathering significantly more support inside Aus than out; and a lot of normal coalitions have broken apart, most notably with American "tech" and "tech journalism" putting aside their differences to agree that the attempts to force Google and Facebook to a negotiating table are uniquely awful. 

I'm not sure it's quite as bad as all that, particularly if you've tracked the bill's progress across the Australian legislature. 

What I would say, in the tech sector's defence, is that the events of the last week seem to have proven the main charge: the legislation was a shakedown, and now the companies have paid up, many of the principles have been left by the wayside. The effect appears to have been to create a statutory bargaining mechanism so unpalatable to the tech industry that it will move heaven and earth to ensure that it does the bargaining outside the law; now that it has, it's no longer covered. Great, I guess?

And, well, the involvement of Rupert Murdoch in all this leaves a bad taste in the mouth. Murdoch already controls – and coarsens – most of Australia's media; it's his personal vendetta the government has been pursuing here, and his personal properties that seem set to benefit the most.

When it comes to the legislation itself, it's clear that the proposed bargaining mechanism really was unpleasant, even if it was maybe over-egged. Now, some widely-accepted talking points are, bluntly, not true – or at least, no longer true. The law is not, for instance, reducible to a "link tax", no matter what Sir Tim Berners-Lee says: a recent amendment to the legislation made this explicit, confirming that there was no intent to force tech companies to pay per link, rather than simply saying "you need to pay a lump sum, agreed in arbitration, to cover your general linking-out to the news industry". 

But I can understand the objection, simply in principle, to the idea that linking out incurs any charge whatsoever. Similarly, I absolutely understand the objection the tech sector had to a proposed requirement to give the news industry advance notice of algorithmic changes. These algorithms are a) the most valuable commercial secrets of these companies, b) barely explicable in how they work any way and c) something which balances the needs and requirements of many stakeholders, not a simple zero-sum deal between the news industry and Facebook. 

And yet! Facebook has been, and continues to be, historically shitty about how it wields its power in this regard. Remember when it pulled news from six countries with no warning as an experiment? 

That's the sort of behaviour that, bluntly, invites regulation. If Facebook was unhappy with the version of regulation that it was landed with, then it's incumbent on the company to explain what better regulation to achieve the same goals would look like.

And that for me, is where I really break with Facebook's stance. At the same time as pulling out of Australia over this code, Facebook was running poster adverts in Washington D.C., declaring: 

The last time comprehensive internet regulations were passed, a hashtag was that button you never pressed on a telephone. It's time for an update. Facebook supports updated internet regulations.

In fact, Facebook has been calling for countries around the world to "update" their internet regulations for years. I've sat in a room with senior figures as they reel off all the problems with current legislation, and all the things they think governments should take charge of. But I've also seen the notable lack of any positive suggestion, or any campaign as to what Facebook actually wants from the regulation it's calling so loudly for. And when Australia actually proposes something, the company engages the nuclear option, after spending months arguing that the legislation shouldn't pass.

Because here's the thing about Facebook and regulation: the company doesn't really care about what the laws say. What it wants is for governments to take the blame. 

Facebook is in a position where, by virtue of its corpulent size, it's faced with an increasing number of no-win scenarios. It's damned if it blocks Trump, or if it doesn't. It's attacked whatever stance it takes on abuse of celebrities, however much it promotes established news outlets or Facebook-native challengers. The company needs to be all things to all people, and cannot.

And so it turns to governments to take the blame. If Facebook is legally required to keep Trump on its site, then people shout at the legislators, not Facebook. If the company is mandated to block Tommy Robinson, then it's the law that's to blame, not Facebook. If the company is required to ban political advertising, or allow it, or limit it – it doesn't really care but it just wants to make sure that whatever the outcome is, it's not the one that gets shouted at.

That's why you get these curiously content-neutral calls from Facebook for "regulation". It genuinely does not care, and can say that with a straight face: you make the hard decisions, and we'll implement them.

Except, it turns out, the regulation that people want for Facebook does in fact touch on areas that the company has very strong opinions on. The company cares deeply about ensuring it has the freedom to tweak its algorithm on a whim and bankrupt industries. It cares firmly about taking absolutely no liability for the downstream effects of its platform, no matter how basic the safety violation. It will go to the wall to ensure that it is not landed with costs that scale according to its size.

I'm focusing on Facebook here, but I think this applies to a lot of the tech industry – and explains how they found themselves in the position they did in Australia.

Like all industries, tech has its shadow lobbying groups, it secretly funds its think tanks and so on. But, unlike others, the tech industry has focused firmly on that core pro-regulation message. "We want to be regulated; we want new laws that cover us; we're not like the Other Industries, we're cool and likeable".

Except that message fails, because it's coming from an industry that simply cannot accept that regulation is driven, first and foremost, by a desire to limit the harms caused by that industry – harms which the industry can't even be convinced exist. 

In other words, we're going to see this more in the future. Until tech changes its view of regulation from something that offloads blame to something that prevents harm, that cycle – "Regulate us! No not like that" – will continue.

Postscript

On Wednesday morning, after I wrote the above, Nick Clegg published Facebook’s side of the conflict. Headlined “The Real Story of What Happened With News on Facebook in Australia”, it is, at least, the real story of how Facebook views the conflict.

And so I feel suitably vindicated by the fact that Clegg’s closing paragraph is, almost word for word, the response that I’ve put in Facebook’s mouth above:

The internet needs new rules that work for everyone, not just for big media corporations. By updating internet regulation, we can preserve what’s best about it — the freedom of people to express themselves and entrepreneurs to build new things. New rules only work if they benefit more people, not protect the interests of a few.

It is, again, a vaguely pro-regulation call, with a strong absence of specifics, published against a background where Facebook’s only suggestion as to what to do for an actual law with very specific goals was “scrap it”. If the company doesn’t do better than that – doesn’t address actual regulation that aims to fix the problems it creates – then it’s going to continue to be blindsided by laws like Australias.