Twitter et al terminate Trump’s platform. Lol

The days that followed the deadly insurrection of 6 January 2021 have wrought an approximation of Donald Trump’s digital execution.

Initially, some of Trump’s incendiary content—including a video addressing his “very special” violent supporters—was simply removed from Twitter, Facebook and YouTube. Then the responses escalated. Twitter temporarily locked his account; later, Trump was permanently suspended.

The de-platforming did not stop there. The list of digital platforms on which Trump and Trump-related content is (currently) not permitted is long. It includes Instagram, Snapchat and TikTok.

Law

The companies behind these platforms were well within their legal rights in taking these actions. Our use of social media is pursuant to the platforms’ terms of use. Generally speaking, a platform has no obligation to continue providing its service to users who violate its terms.

For example, with respect to Trump’s Twitter ban the platform explained:

We assessed the two Tweets referenced above under our Glorification of Violence policy, which aims to prevent the glorification of violence that could inspire others to replicate violent acts and determined that they were highly likely to encourage and inspire people to replicate the criminal acts that took place at the U.S. Capitol on January 6, 2021.

Such a position is at odds with digital platforms’ historical identification as “neutral” platforms, or mere “intermediaries”. If intermediaries are capable of stopping the spread of #StopTheSteal rhetoric, and if they take responsibility for that position, then why should they not also take responsibility for stopping the spread of defamation? In that light, cases like Defteros v Google LLC [2020] VSC 219, and even Fairfax Media Publications v Voller [2020] NSWCA 102 (granted special leave), seem more defensible.

That said, a bare appeal to a platform’s terms of use is insufficient to understand the legality of a platform’s action in response to a putative violation of its terms.

It is worth remembering that most of these platforms are underpinned by transnational corporate groups. The terms of use of a platform will vary, but will often select the law of a State in the United States (eg, Delaware) as governing law. The lawfulness of a particular instance of de-platforming may turn on that law. But the issue is complicated.

The application of law selected by a governing law clause (AKA choice of law clause) is a question for a court. Different courts take different approaches to these clauses. In Australia, a court would be compelled to consider contrary legislation (or “mandatory law”) like that proposed by George Christensen to the exclusion of selected law.

It would be within the competence of various Parliaments around the world to compel Twitter et al to refrain from de-platforming, overriding tech companies’ terms of use. But just because they could does not mean that they should.

Policy

The legality of Trump’s de-platforming is one issue—the policy underlying these actions is another.

Conservatives were swift to decry the events as an assault on freedom of speech. Australian critics of the de-platforming include Acting Prime Minister/national embarrassment Michael McCormack and Treasurer Josh Frydenberg, together with various backbenchers not worth worrying about. German Chancellor Angela Merkel described Trump’s ban as "problematic".

There are a number of reasonable points in support of their position.

First, to deny the leader of the world’s most powerful nation the ability to communicate with the public is a pretty hectic thing to do no matter who that person is.

Second, to deny the supporters of a particular political view the ability to express themselves (certain citizen accounts and hashtags are also being removed) is the sort of thing one would expect from your Chinas or your North Koreas, not from your land of the First Amendment.

Third, to deny members of the public the ability to assert a particular account of facts (eg, “the election was stolen”) may lead us into ignorance, even whether the impugned account is obviously stupid. As John Stuart Mill once said, an opinion “not fully, frequently, and fearlessly discussed [is] a dead dogma, not a living truth”. (Mill would have been cool with Trump’s de-platforming, though.)

Fourth, the platforms’ positions on Trump and his insurrectionists is hypocritical: plenty of other dangerous content remains online. The Kremlin is on Twitter—is Trump more dangerous than Putin?

Fifth, and perhaps most importantly, social media platforms have become our global public square. The argument that “private companies have no obligation to give you a platform” is less compelling in that light.

Tech companies perform a pseudo-public function; yet as their hypocrisy on de-platforming shows, their decision-making processes are less impartial than those one would expect from a judiciary. Should we let profit-driven corporations accountable to foreign shareholders take responsibility for what is permissible in global public discourse?  

Power

As The New York Times put it, Twitter has shown “where power now lies”.

Tech companies amplified Trump’s platform. Tech companies provided Trump supporters—including ridiculous QAnon conspiracy theorists, mask-averse super spreaders, and feeble-minded “proud boys”—with the safe spaces to peddle the quackery too stupid for the “mainstream media”. Tech companies provided these brilliant minds with the means to document their federal crimes in real time. Tech companies giveth and tech companies taketh away.

Spider-Man taught us that with great power comes great responsibility. The events of recent days show that “Big Tech” is coming to terms with its great responsibility. Their corporate social responsibility is filling the vacuum created by politicians’ dangerous irresponsibility.

If the line is not drawn here, where should it be drawn? I wonder if the Coalition critics of the digital response to Trump’s attempted coup d'état would react similarly if, in a parallel universe, Twitter de-platformed a digital age Hitler. Well, Twitter basically did just de-platform a digital age Hitler. There is no need to wonder.

Trump’s de-platforming from social media is the best thing to happen to the internet since Google destroyed News Corp’s business model.

But that’s just my opinion. It is also the correct opinion. And if you disagree, maybe you oughta be de-platformed too. Not all opinions are equal.

Michael Douglas is Senior Lecturer at UWA Law School and a Consultant at Bennett + Co. Views expressed are his alone. A version of this was written for the Gazette of Law & Journalism.