The right to digital integrity as a shield against the hegemony of Big Tech

The recent attack on the US Capitol led by a host of right-wing pro-Trump extremists has shocked the world – the West in particular – with its strong symbolic significance. The institutions of the world’s oldest modern democracy were deliberately targeted by American citizens in an attempt to overthrow democratically conducted presidential elections in which former Vice President Joe Biden emerged victorious, in order to maintain the President Donald Trump in power.

Social networks such as Facebook and Twitter quickly found themselves in the limelight given their increasingly obvious role in this attack on democracy. It is undeniable that these platforms have actively contributed to the radicalization of a large portion of the American population by allowing the proliferation of “fake news” which aim to discredit the electoral process and to convince Internet users that the elections were “stolen” by the Democratic Party. The disinformation campaign led by Donald Trump and his allies, and widely echoed by believers in conspiracy theories such as members of the QAnon movement, has been particularly effective as they have received unexpected and valuable help. Their inflammatory comments were propelled through social networks thanks to the algorithms running behind Facebook and Twitter.

These algorithms exploit users’ personal data to identify content that generates a strong emotional response, regardless of its truthfulness, with the aim of promoting it to as many users as possible. It is indeed this type of content that ensures platforms a high engagement rate, and therefore greater advertising monetization. This weakness imbedded in the system is constantly exploited by politically motivated actors who aim to influence public opinion. Social networks have thus become one of the main vectors of populist ideas. This phenomenon is not new, nor unique to the United States. The Facebook-Cambridge Analytica scandal has shown that the personal data of millions of Facebook users was exploited in order to influence British voters on the Brexit issue. Likewise, in France, social networks have influenced the “gilets jaunes” movement with the proliferation of false information, which has led in particular to mistrust in traditional media outlets. This same mechanism can be observed across the world and has been accentuated with the Covid-19 crisis, where disinformation on social networks is complicating the authorities’ response to the pandemic.

In an attempt to stem the disinformation campaign that is affecting the US elections, which the FBI says continues to pose a great threat to institutions in each state of the country during the days leading to the transition of power – which will take place today –, Big Tech companies have simultaneously taken coercive measures against the main propaganda networks. This is how the outgoing US President saw his Twitter account suspended before being banned from the platform. Facebook, Instagram, YouTube and Snapchat followed suit soon after with similar moves against him. At the same time, Twitter closed 70,000 accounts linked to QAnon and Facebook removed content from the pro-Trump group “stop the steal”. The social network Parler, which had become a Conservative safe haven platform, was also targeted by Big Tech. Apple and Google removed the Parler app from the App Store and from Google Play respectively, and Amazon stopped providing its servers to Parler, as the social network refused to take the prescribed measures to limit hateful content and calls for violence.

Although each one of these measures seems appropriate and necessary in view of the current dangers facing American institutions, they reveal the almost unbreakable power that Big Tech companies exercise over the general population, and even over politicians. It seems almost unreal that a handful of private companies can exploit the personal data of millions of users with virtually no accountability and that they have such influence over how each person shapes their political opinion. It is all the more worrying that the current regulatory frameworks – or lack thereof – leaves nation-states powerless when dealing with social media and that the onerous task of regulating online content has been delegated to these same companies. This concern is particularly shared by German Chancellor Angela Merkel for whom the censorship undertaken by Big Tech companies is “problematic”, as well as by the French Minister of the Economy Bruno Le Maire for whom “the regulation of digital giants cannot be done by the digital oligarchy itself” (see La censure de Donald Trump par les géants du web dérange l’Europe, RTS info, 12 January 2021).

According to a recent report by the US House of Representatives, the monopolistic power of Big Tech represents a threat to democracy. There is evidence that these companies have grown to be so powerful that they “wield their dominance in ways that erode entrepreneurship, degrade Americans’ privacy online, and undermine the vibrancy of the free and diverse press. The result is less innovation, fewer choices for consumers, and a weakened democracy”. Those conclusions were made after the representatives of Google, Facebook and Apple testified in front of Congress in 2020 to assess the need to introduce a new regulatory framework and dismantle Big Tech in order to reduce their monopolistic power.

The European Union introduced the GDPR in 2018, which aims to strengthen the protection of user data and the confidence of citizens and businesses in the digital single market. In addition, two draft new regulations are being considered in order to create a more secure digital space in which the fundamental rights of all users of digital services are protected (Digital Services Act and Digital Markets Act). In France, the Commission Nationale de l’Informatique et des Libertés (CNIL) imposed record fines against Google and Amazon for failing to comply with the law on targeted advertising. We can thus observe a rising awareness from these governments as to the need to review the legislative framework applicable to the digital space in order to guarantee the rights of users.

As for Switzerland, the federal government has remained largely inactive on this central issue. Swiss companies must however systematically apply the GDPR given its extraterritorial scope. It is at the cantonal level that the debate on the guarantee for rights in the digital space takes place. The Commission 2 of the Constituent Assembly of the canton of Valais proposes to integrate a right to digital integrity in the future version of the Valais Constitution with an article providing that “every human being has the right to digital integrity”. The Geneva section of the PLR political party also launched in September 2020 a popular initiative project aimed at integrating into the cantonal Constitution a paragraph stipulating that “everyone has the right to their digital integrity”. The project was abandoned in favor of a constitutional bill. However, the incorporation of a constitutional right to digital integrity will not be sufficient to guarantee fundamental rights in the digital space. The effectiveness of the right to digital integrity vis-à-vis Big Tech will depend entirely on the content, the scope, and above all, on the implementation of this right by the legislator.

Either way, the debate on the advisability of a new right to digital integrity – inspired by the rights to physical and mental integrity – makes it possible to enrich the reflection on the measures to be taken against Big Tech companies, as well as specific legal tools to protect fundamental rights in the digital space. These questions were debated at the University of Neuchâtel in February 2020 during the conference dedicated to the right to digital integrity, jointly organized by Prof. Guillaume and Prof. Mahon. The panel of speakers discussed in particular whether the protection of physical and mental integrity can be extended to digital integrity. A publication collecting the written contributions of the speakers entitled “Le droit à l’intégrité numérique – Réelle innovation ou simple évolution du droit ?” was published in January 2021.

Recent events allow us to contextualize the fundamental questions addressed by each of the authors of the book. The collective interest of human being, as well as democratic values, must be put back at the center of the digital space in order to preserve fundamental rights. The safeguard of the social fabric and the preservation of democratic institutions are at stake. Digital platforms and other social networks must be re-imagined so that users no longer find themselves in a position of digital slavery by the collecting and exploitation of their personal data against their will. Blockchain technology could contribute to the creation of new kinds of platforms whose governance would be distributed among users and whose self-regulation would make it possible to fight against the dissemination of illegal or harmful content by guaranteeing the fundamental rights of users in a digital market open to competition and freed from actors with predatory behavior.

Text co-written by Prof. Florence Guillaume and Sven Riva