Who regulates the networks?

We need a legal framework that is appropriate to the reality of social networks, that protects freedom of expression and that clearly defines the situations in which it can be limited, assuming that such limitations can only take place in extraordinary circumstances, within the rules the rule of law and subject to court decisions.

The decision of the Twitter and Facebook to ban Donald Trump it was one of the most relevant international events in recent weeks, alongside the attack on the Capitol and the worsening of the Covid-19 pandemic in several countries, including Portugal. It is a decision that poses a dilemma: should social networks have the power to censor their users, if public order and the defense of democracy are at stake? Or, on the contrary, should censorship never be an option and, above all, should it not be in the hands of private entities?

Firstly, it is important to note that social networks are distinct platforms from traditional media, so they should not be subject to the same legal and regulatory framework.

The media communicate information produced by professionals who - regardless of their limitations, motivations and competence - are obliged to comply with a set of ethical rules that aim to ensure maximum accuracy, reliability and veracity of the information that is disclosed. .

Journalists are not angelic beings exempt from sin, but exist to investigate, investigate, select, validate and confirm relevant information for citizens, so that they can make informed decisions in their lives. When journalists do their job well, they contribute to better governance in public and private entities, providing an essential service to their communities. It is this fact that justifies the legal protection and the status attributed to them in democratic societies (even if our authorities sometimes do not understand this, as seen by the fact that the Public Ministry have put two journalists under surveillance, in a worrying attack on press freedom in Portugal).

For all these reasons, journalists have a duty not to reproduce statements that they know to be false (unless they do the contradictory), hate messages or words that incite violence. I would even say that a significant part of Trump's tweets over the past few years should not be reproduced without due contradiction in a newspaper that purports to be serious. In fact, a newspaper is a space with an editorial line and well-defined rules, not a public square where everyone has the right to say what is on their mind.

However, the same cannot be said of social networks, which play the role of agora in modern societies. In social networks there is no figure comparable to that of the journalist, who confirms the facts through a verifiable procedure and places them in a meaningful context. On the contrary, social networks offer everyone the possibility to transmit their opinions to the world, even if they are delusional. But what to do when these opinions promote hatred, violence, apology for terrorism or misinformation in matters of life and death, such as the current pandemic?

I believe that it will be inevitable that there is some level of control, similar to what happens in the physical world. If someone makes an impromptu rally in the public square, inciting a mob to take up arms against legitimate authority, they are likely to be arrested and accused of disturbing the order. Likewise, anyone who utters insults and threats in a public space may have to answer for it in court, if the respondents lodge a complaint or if the statements in question constitute public crimes.

The difference is, of course, in the fact that the public square is under the responsibility of the State, whereas social networks are virtual squares belonging to private parties. And, therefore, who should be the policeman who guarantees order and respect for legality? And who should decide the sanctions to be given to the offenders?

The answer seems clear to me. The maintenance of public order must be a prerogative of the State, whether it be physical public squares or virtual spaces. Technological companies must ensure compliance with the rules for using their platforms, but their size and importance for life in society justify greater regulation that provides, among other things, that the courts decide whether or not someone should be banned.

We therefore need a legal framework appropriate to the reality of social networks, which protects freedom of expression and which clearly defines the situations in which it can be limited, assuming that such limitations can only take place in extraordinary circumstances. , within the rule of law and subject to court decisions.


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