Meta Oversight Board Helps Establish New EU Content Moderation Appeals Group

Report from the Washington Post

In Brief – The Oversight Board, funded by Meta but operating independently to advise the company on its content moderation policies, has provided $15 million to help set up the Appeals Centre Europe (ACE), an Out-of-court Dispute Settlement (ODS) body to resolve content moderation disputes under the EU’s Digital Services Act (DSA). The new law regulating how platforms deal with harmful and illegal content promotes the use of independent ODS bodies to allow users to contest platform content moderation decisions without turning to costly litigation. While the Oversight Board, established by Facebook in 2020 to give its users an appeals body outside the company to challenge company content moderation decisions, has exclusively dealt with Meta’s top platforms, the ACE will allow users of Facebook, YouTube and TikTok to submit appeals of content moderation decisions, and its officials say they hope to add more platforms over time. The panel, which aims be underway by year’s end and is expected to start with more than two dozen staff, is based in Ireland and has been officially certified as a DSA dispute settlement body by the Irish Digital Services Coordinator, the Coimisiún na Meán. It will charge users 5 euros to submit a case, which would be refunded if they prevail, and a platform will pay approximately 100 euros for each claim.

Context – Margrethe Vestager, the outgoing EU Commissioner and a face of European digital regulation for the past decade, recently said, "The DSA is not content moderation, it is a system to enable you to actually know what is taken down so that you can complain about it."  It's much more than that. But ACE in Ireland joins two other certified ODS bodies, User Rights in Germany which accepts complaints about Instagram, TikTok, and LinkedIn, and Adroit in Malta which specializes in booking platforms and online shopping. No discussion of content moderation should pass without recalling the wise words of tech policy expert Mark Masnick that the job is “impossible to do well” at scale and that there is often no correct answer.

Small Browser Companies Keep Complaining to the EU About Microsoft Edge

Report from Reuters

In Brief – European browser-makers Vivaldi, Waterfox, Wavebox, and a trade group of European developers have complained to the European Commission’s competition regulators that Microsoft is violating the Digital Markets Act (DMA) by self-preferencing its Edge browser in the Windows operating system. They note that Window’s Edge browser is pre-set as the browser for many Windows applications, and that Microsoft employs a wide range of prompts and settings to hinder the ability of Windows users to install and run third-party browser software. The smaller browser competitors argue that these practices violate the DMA’s self-preferencing prohibition that applies to the “core platform services” of the designated gatekeepers and said that they support the court challenge launched in July by Norwegian-based browser company Opera to prohibit Microsoft Windows preferencing Edge.

Context – The DMA regulates the core platform services of gatekeepers. Currently there are 7 gatekeepers, including Microsoft. The services covered include app stores, search engines, social networking, some messaging, video sharing, virtual assistants, web browsers, cloud services, operating systems, online marketplaces, and digital ad platforms. However, not all the platforms of all the gatekeepers are covered. Instead, the Commission determines which of each gatekeeper’s services serve as a gateway between many business users and consumers in Europe. There are currently 24 designated. The operating systems are Google’s Android, Apple’s iOS, and Microsoft’s Windows PC OS. For browsers, two, Google’s Chrome and Apple’s Safari. The Commission has interpreted Article 6 of the DMA, which prohibits self-preferencing behaviors, to apply to a gatekeeper’s core platform service operating system only for the same gatekeeper’s other designated core platform services. They determined that Microsoft’s Edge, with just a 5% market share, is too small. The even smaller browser companies argue that the two browser giants can effectively compete on PCs in the face of Microsoft’s conduct, but small third-party browsers generally cannot.

States AGs Add to Social Media “Addictive Design” Suits -- TikTok Edition

Report from the New York Times

In Brief – The Attorneys General of 13 states, led by California and New York, have filed suit against TikTok alleging that the social media phenom has violated a raft of state consumer protection laws through the deliberately “addictive” design of their app that they argue is optimized to drive heavy usage among young users, as well as the deceptive description of features portrayed as helpful to parents trying to manage their children’s TikTok usage. The AGs are asking state courts to impose financial penalties on the company and force TikTok to change product features. The lawsuits add to the potentially existential legal challenge facing TikTok following the April passage of federal legislation that calls for the app to be sold or face a ban in the United States. TikTok's lawsuit arguing that the law violates the First Amendment had a hearing in the DC Federal Court of Appeals in September.

Context – Social media critics have been trying to construct legal strategies to circumvent Sec. 230 and force changes on the platforms. One avenue is to argue that young people are harmed by the design of the platforms that encourage longer and more intensive (“addictive”) use. Second is to argue that the platform's algorithms that direct content are not protected by the federal statute. A growing number of states have enacted legislation following these models that the backers say will protect teens from the mental health harms caused by social media. But they are facing skeptical federal judges. Utah’s version was recently blocked by Federal Judge Robert Shelby whose order was noteworthy for detailing the lack of evidence of a causal link between social media use and negative mental health outcomes, finding more evidence of balanced and individualized effects. As more state laws hit First Amendment shoals, expect public officials to file more company-specific lawsuits, like the major effort targeting Meta last year or New Mexico’s recent targeting of Snap. The lawsuits are faring better in court in that they are not being immediately dismissed. In Europe the same platforms are all now regulated under the Digital Services Act.

Meta Settles Data Policy Complaint with the German Federal Cartel Office

Report from Spiegel Online World

In Brief – Meta has agreed to change the way it handles user data in Germany, ending its five-year legal battle with the German Federal Cartel Office (FCO) that demanded an end to the digital giant’s policy of combining the data of individual users from across all its different services without their freely given consent. The German antitrust regulator first objected Facebook’s data policies in 2019, arguing that the social media giant’s automatic data tracking across its many sites was an “exploitative abuse” of Facebook’s dominant position. The agency has announced that the company has dropped its appeal of the order and agreed to a set of policies that FCO President Andreas Mundt says, “means that users now have much greater control over how their data are combined.” The company has not said if the policies will be used in other markets.

Context – Targeted advertising is one of the most contentious topics in digital policy. Many privacy advocates want to get rid of them, calling it “commercial surveillance” and alleging a high-tech conspiracy harming unwitting people by showing them ads for things they might like or want. Even though most popular digital services are funded by effective advertising, and users consistently choose ads over direct payments, Meta has been one of the few companies willing to forcefully defend targeted advertising as benefiting millions of small enterprises who use it to find customers across the vastness of the internet despite small ad budgets. It might seem a joke that less effective “dumb” advertising is ever considered better, but Meta’s proposal to give users the option of paying for versions Facebook and Instagram without targeted ads in Europe, rolled out to address regulatory demands, is facing an EU Commission demand to offer free versions with less effective ads. EU Commission regulators have preliminarily determined that while the Digital Markets Act does not require Meta to offer its services for free, it does require the company, and presumably all giant platforms with ads, to offer versions that are free with ads, but the ads must be far less-targeted, less-effective, less-efficient, and therefore less-valuable to everyone.