8th January 2021
Once upon a time, and not so long ago, mass political parties and national media organisations were themselves novelties.
Both were responses to the emergence of popular democracy and widespread literacy in the late 1800s.
Political parties and media organisations (for example, ‘Fleet Street’) were ways by which the relationships were mediated between the elite and the governed.
The means of political organisation and of publication – and, later, of broadcasting – were in the hands of the few.
Indeed, until the 1990s, it was difficult (if not impossible) for any person to publish or broadcast to the world, without going through the ‘gatekeepers’ of a national newspaper, or a publishing house, or a national broadcaster.
Similarly, it would be difficult (if not impossible) for any person or group of people to obtain significant political influence – at least in the United Kingdom as a whole – without going through a national political party.
So – although both politics and the media on a national level had opened up to the population as whole – the ultimate means of political and media control were still quite centralised.
And when power is concentrated it is easier to regulate.
So, just as modern political parties and media organisations emerged at the end of the 1800s, so did the regulation both of political parties and of the media.
Back in October 2019 I set out at Prospect why the electoral law of the United Kingdom that was developed in different circumstances was no longer fit for purpose.
Similar points can be made about media law: for example, there is no real point tightly regulating certain news titles or national broadcasters when the same content can be circulated – often even more widely – on social media platforms by those outside such creaking regulatory regimes.
If traditional political parties and media organisations did not already exist as hangovers from the time before modern technology and communications, they probably would not now be invented, at least in a recognisable form.
And that therefore must follow for how political and media activities are regulated.
Just as traditional political parties and media organisations were once novel responses to new social and economic conditions, we need to think afresh about the nature of political and media power and about the extent, if at all, it can be regulated.
For now anyone with an internet connection and access to certain platforms can publish and broadcast to the world, or can seek and obtain significant political influence or power.
To ‘regulate’ a thing is to make it possible that the thing would have a different outcome, but for the regulation.
If a regulation can have no effect, then the thing supposedly being regulated carries on regardless, and the regulation is a polite fiction.
Futility is the enemy of sound regulation.
And now we come to President Donald Trump and his recent temporary ban from Twitter and his indefinite ban from Facebook.
Neither Twitter nor Facebook are traditional media organisations – indeed both were formed within the lifetime of anyone reading this post.
But they are not only media organisations – they have also taken on some of the functions of traditional political parties – as the practical means of political organisation, mobilisation and sharing of information.
This is not to say that the social media platforms are beyond the law – they are (in theory) subject to terms and conditions, laws on equality and non-discrimination, laws on data protection and intellectual property, and so on.
It may be that these general laws are not enforced, or perhaps not enforceable – but there are laws which apply.
The issue is that those laws are general laws and not specific legal regimes covering media and political activity.
And so what we have are platforms of immense media and political power – and without any specific media and political regulation.
They are, in effect, private organisations – and (subject to general laws) are entitled to suspend and terminate, or to enable, the accounts of any politician.
They can even suspend the social media account of (arguably) the most powerful politician in the world.
And they have done so.
For many, the way to deal with the political and media power of social media platforms is easy.
Something must be done, and so something will be done, and that something that will be done will be to ‘Regulate!’
But asserting that a thing should be regulated is not the same as it being capable of regulation.
One may want the tides of the sea or the weather to be different, but it does not follow that they can be made any different.
So it may be that although social media platforms – huge private corporations – have immense political and media power, it does not follow that they can be easily regulated, or regulated in any meaningful way at all.
And even if regulation was possible, it is almost certain that it cannot be on the same basis of the top-down, command-and-control regulation of political and media activity that we have inherited from previous times.
For example, social media platforms have millions of publishers and broadcasters, not just a handful.
There are no elaborate steps before publication and broadcast as with a Fleet Street title or established book publisher.
They are no limits on how much political propaganda can be published and to whom it can be circulated.
If any of this can be ‘regulated’ then it almost certainty will not be by tweaking old pre-internet regulatory models – and this is because the things being regulated are of a fundamentally different nature.
And – and this will be very hard to accept for those who believe every real-world problem has a neat legal solution – it may be that social media activity can no more be regulated meaningfully than conversations in the street or in the town square.
That the age of specific regulations for media and political activity are over, and all we are now left with are general laws.
Many will not be comfortable with this – and will insist that ‘something must be done’.
Yet futility is the enemy of sound regulation.
Perhaps something should have been done in respect of President Donald Trump’s unpleasant, dishonest, reckless and dangerous use of his social media account before this week.
And what has now been done is too little, too late.
Others would say that silencing an elected politician’s means of communication should not be at the fiat of a private social media platform.
Views will differ.
But the wider questions are:
If a thing is to be done about the use and abuse of a social media platform by those with political and media power, who should have the power to do this?
And on what basis should they make that decision?
And to whom (if anyone) should that decision-maker be accountable?
And if the social media platforms themselves are left to regulate what political and media activity can take place and what content we can read and watch, who (if anyone) can regulate them?
‘Quis custodiet ipsos custodes?‘ – who watches the watchmen? – is one of the oldest and most difficult questions in the history of organised societies, and it is a question that sometimes has no answer.
And now our generation gets to ask and to try and answer this question.
Later on the day of this post, Trump’s Twitter account was permanently suspended.
After close review of recent Tweets from the @realDonaldTrump account and the context around them we have permanently suspended the account due to the risk of further incitement of violence.https://t.co/CBpE1I6j8Y— Twitter Safety (@TwitterSafety) January 8, 2021
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