Peter Coe

In May 2018 Professor Robin Barnes and I convened a conference at the Inner Temple in London entitled: ‘Joining the Circle: capturing the zeitgeist of “Big Tech” companies, social media speech and privacy’. The conference was based on Dave Egger’s book, The Circle, which tells the story of an all-powerful new media company that seeks to totally monopolise its market place and remake the world in its image. Although fictional, the book captures the zeitgeist surrounding ‘Big Tech’ companies exerting ever-increasing influence over our lives by altering our perceptions and expectations of the media (including citizen journalists), free speech and privacy, and how our personal information is used and protected. The panel consisted of academics and practitioners who presented and discussed their thoughts on these issues to delegates from a variety of legal and media-related backgrounds. A selection of the papers have formed a special edition of Northern Ireland Legal Quarterly, which I have had the great pleasure of guest-editing, entitled ‘Caught in web: capturing the zeitgeist of “Big Tech” companies, social media speech and privacy’. This special edition includes articles from Professor Robin Barnes, Rebecca Moosavian, Dr Paul Bernal and Dr Laura Scaife, in addition to my paper, which I summarise in the following paragraphs. Dr Paul Wragg provides the introduction, and Michael Russ presents a summary of the European Commission’s proposed changes to internet platform regulation.

For those of you who have read The Circle, or seen the film, you will know that it advocates the unregulated sharing of all information, at all times, regardless of its source and irrespective of the consequences for individuals, society and the state. Although this dystopian view of reality is perhaps slightly extreme, in light of recent Law Commission research findings that 66 per cent of UK adults and 96 per cent of 16 to 24-year-olds use social media, it does not take any great leap of faith to see how we could all end up as ‘Circlers’, particularly because the underlying normative rationale that drives The Circle is what currently underpins online speech in reality. Libertarianism and the inherently libertarian argument from truth and marketplace of ideas have historically underpinned the notion of the Fourth Estate and, it has been argued by the likes of Professor Eric Barendt, have a ‘hold’ on First Amendment jurisprudence. Despite the Royal Commission on the Press in the UK and the Hutchins Commission report in the USA acting as catalysts for the emergence of social responsibility theory in the 1940s, in recent years, libertarianism has become the de facto normative paradigm for internet and social media speech worldwide.

I argue in my Northern Ireland Legal Quarterly article that, although the theory’s dominant position may fit with the perceived ethos of social media platforms such as Facebook and Twitter, its philosophical foundations are based on nineteenth and early twentieth-century means of communication. Consequently, as illustrated by issues such as filter bubbles and Facebook’s reaction to fake news (bringing in a third-party fact-checking company), which conflicts with the platform’s libertarian ideology, as well as the European Court of Human Rights consistently placing the argument from democracy at the heart of its Article 10 ECHR jurisprudence, rather than the argument from truth and the marketplace of ideas, this normative framework is idealistic as opposed to being realistic. Therefore, it is not suitable for twenty-first-century free speech, and the modern media, of which social media is no longer an outlier, but a central component.

Thus, my article advances the argument that a normative and philosophical framework for media speech, based on social responsibility theory and the argument from democratic self-governance, is more suitable for the modern media than libertarianism. I argue that this is because it endorses a two-tiered approach to media communication. The first tier relates to behavioural norms associated with the social responsibility theory that are expected of media actors. The second tier is concerned with how these norms are complemented by the argument from democratic self-governance in respect of the type of speech the media conveys. Consequently, as set out in my conclusion, this framework could not only right a number of wrongs created by libertarianism, it conceptually justifies and allows for a coercive regulatory regime that manages to preserve media freedom.