Elon Musk's acquisition of Twitter and free speech

Are you wondering what the future of social media looks like? In this episode, we are discussing the Elon Musk Twitter takeover from a media law perspective. We have invited Gavin Sutter, media law professor and director of the Queen Mary Technology Media and Telecommunications law Institute. We discuss concepts like freedom of speech in different jurisdictions and the power of social media factors hold, as well as how new technologies can ensure transparency.
This episode is brought by Charis, Lisa, and Shashank.

Transcript

0:10  
Hello welcome back to the Legal Bytes podcast, brought to you by Postgraduate Law and Tech students from Queen Mary University of London on behalf of the technology media and Telecommunications Law Institute. My name is Charis and I'm bringing you this episode along with my teammates Shashank and Liza. The first thing we need to explain is that we are changing our names. We're very excited this podcast will be now called Yours Lawfully, we hope that you like our new logo and of course the latest content we bring to you. As we promised in the last episode. Today we will talk about Elon Musk's acquisition of Twitter and free speech I have a very exciting guest here today is Gavin Sater.

0:47  
Gavin is a senior media lecturer at crema University, and he is the one who introduced the media law module in the LLM. This is also the one I'm on so I'm very excited to have you here. He also represent the spotless chi, which is the technology media and telecommunication Institute. So do you want to introduce yourself?

1:05  
Hi, yep, so as you've just heard, I'm Gavin. I've been at CCL s. Since I was a baby academic writing, I did my LLM in Belfast back in the 90s. And then I came straight to CCLs originally for 12 months on an EU funded project, look any commerce, payments, sites, payment software, and so on. And then gradually became more of a cyber lawyer was originally interested in content and censorship, content and issues like that on the internet. And then I started looking at things beyond my original Internet remit and thinking about, but how did these laws get to where they are now? What was the traditional underpinnings on them? How does that influence how we rethink the media in the Internet era, I sort of became a media Lawyer by accident almost early that way. But I realised over time, just how many of these things are really not new, that we talk today about the implications of Elon Musk are these powerful, the oligarch figures owning social media. And these are very similar things we've really been grappling with for a long time with the legacy media. So there are lessons to be learned there. But of course, it becomes even more of a challenge online with the International and the cross jurisdictional aspects.

2:34  
That's great. I'm very excited for our interview today. So last time, we give a bit of background on the issue we're discussing today, but some of our listeners are probably not caught up with last episode. So do you want to provide some information on what's going

2:51  
on? Yes, it's been quite a show. So there's this guy called Elon Musk. He clearly considers himself to be an absolute genius. And a number of people around the world agree with his particular assessment of himself. I don't necessarily myself but that's that's subjective opinion. And Elon Musk is the richest man in the world. He inherited a lot of money from family and believe they had an emerald mine in South Africa, if I remember rightly. But he inherited a lot of money. He's invested in businesses, he bought an early version, as I understand that the Tesla electric car company has made a lot of money from that has made himself a relatively controversial figure. In the world. He is one of those new breed of businessman who likes to monetize their personality and sell themselves as their brand. And in relatively recent months, he decided social media was a game he was going to get into having previously had a bit of controversy himself on Twitter, in 2018. He was charged with SARS, let me refer to my notes to make sure I get this absolutely correct. Because I would hate to misrepresent anybody being a libel lawyer myself. In 2018. He made a number of tweets about the clean values that he was ascribing to the Tesla electric car company, if it was to go private. And there are those who would suggest that he over inflated, the apparent value of it that had a knock on disrupted the market, and did actually push the value of Tesla shares up where it's and he was accused of over the course of a number of tweets having me in various statements that weren't technically true. Yes, they vote and there was a there were charges brought over fraud relating to that, by their respective authorities know what happened was He settled with that there was a settlement between the authorities and musk on the basis that there was neither an admission of guilt nor a denial of the charges. But that he would stand down from Tesla there were various moves made to reconstitute the Tesla board and make it more independent from his particular control. And so on. 80 million pounds was paid out in fines, half of that, from Musk himself the other half from Tesla. That was quite a controversial episode surrounding Twitter. And it appears that at some point thereafter, he clearly decided, well, I quite enjoy using Twitter, I quite liked to open it, and then I could do what I like with it. And so we ended up where we ended up, or he initially tried to buy it. And then he tried to pull over the deal. And then the Twitter people pulled over the bag, a contract a clause in the contract of sale, which would have loved a very, very heavy penalty, effectively the same cost as buying it if he tried to pull out. And in the end, he went through with the seal. And he has said about immediately making radical changes to how Twitter operates the makeup of the organisation. And currently, depending on which reports you believe is now gonna be about 10% of the staff that he previously had. So that's roughly where we pick it up.

6:26  
Yeah. Today, we wanted to focus a bit more on the media aspect of it, obviously being the technology and media telecommunications podcast. So our first insight after discussing freedom of speech was here's legislation the First Amendment. So we had that the First Amendment provides that contrast, make no law, respecting an establishment of religion, or prohibiting the free exercise and production freedoms, freedom of speech, the press assembly, and right to petition of government and redress of grievances. And we wanted to know if Twitter has to respect this right? And what happens with the implications of banning Donald Trump from it? Shouldn't the First Amendment prevent Twitter from banning the president, basically,

7:15  
this is where the internet causes real problems for the traditional concept of freedom expression, the First Amendment in particular, in relation to the mosque, but also anything like article 10, of the ECHR. And all the equivalents by and large, and certainly the First Amendment in article 10, both these freedom of speech provisions are good against government, you can take those to the government and say, You can't stop me, within certain reasonable limits, you cannot stop me expressing myself. The problem is, Twitter. As with all of these social media, websites and environments, is a privately owned space. And the owners of a private space, we're always entitled to decide, right? We're not going to have we're not going to allow anybody to discuss politics or sport, or the colour yellow, or whatever, on our platform. And they're entitled to do that to regulate that way. Because it's a private space. If Donald Trump wants to express himself in social media he is entitled to, to do that. He's not entitled to a platform on Twitter specifically, he's simply entitled to not have the government ban him from social media or ban him from creating his own indeed, he did go off and start his own truth social, which is a sort of Twitter clone, as I understand the business in very similar technology to Mastodon, but yeah, excluding him from Twitter is, technically because it's a private space. It's not a breach of the First Amendment. Of course, the problem then becomes that, in practice, these private spaces online have taken over. The Public Square Musk himself is very fond of referring to Twitter as the online public square, the town hall, and whatever. But we've got that awkward mix of a private space serving a public function. So the laws, as originally conceived don't apply in quite the same way.

9:21  
So it looks like the private actor can't prevent you from posting a tweet, but it's not protected by the legislation. Exactly.

9:32  
No, well, this is it. So when Jack Dorsey and his team at the previous, the original Twitter owners when they decided Donald Trump was a problem for various reasons, they were completely entitled to boot him off Twitter and not let him back on when the interesting things happen with Musk now is where the politics have panned out and that because he has decided to let Trump back on but Trump appears to be reluctant to go Like on because that could look like an admission that the rival social network he sent up to Twitter when he was throwing off Twitter hasn't panned out the way he wanted. So

10:11  
we also mentioned EU legislation. And we wanted to ask what Musk stance is towards that, because he said he's exactly aligned to EU legislation. But it seems too controversial,

10:24  
he will have an easier time of it. I think the cause, Twitter's model is much simpler than Facebook, in terms of data protection. So it was reported in February 2022, that Mark Zuckerberg was threatening to pull matters offerings out of the EU, to no Facebook, no Instagram, explicitly those two and impliedly, because he also wanted Instagram, not going to let the EU have those because the GDPR he felt compliance with the GDPR was a threat to his business model, which is in effect about harvesting as much of our data as possible, and making as much money out of that as possible. Now, because Twitter operates on basics you need for a Twitter, that function email address, unless you want to go blue tech and all of those things. There was no requirement for any further verification than that, which is why it has always been so popular amongst privacy activists and whistleblowers, and people who live in oppressive regimes who wouldn't feel free to speak out otherwise, and all of those sorts of things. So on the data protection side, I think Musk will struggle too much to comply, if he doesn't radically change Twitter. The problem will be when it comes to things like the EU laws on the way through the EU and the equivalent online CFD builds in the UK, we're moving towards away from the old mindset of third party content, if they weren't really aware of them, you know, they shouldn't be blamed for it to an environment where we're saying, Well look, social media companies make a lot of money from people and from from monetizing the users data. So if they're making money from them, then really, we could make an argument that they owe them something back in return something beyond just providing the service. But if you're in the most objective sense of the word, exploiting people by making money from their data, and affecting their privacy and so on, then you should have a reasonable duty of care towards them. No, that has been controversial. And there are various debates around that. But with Europe and the UK, moving in that direction, have a level of responsibility to the end user. Musk's whole approach with Twitter has been deregulation. I mean, he poses he says he's a free speech, fundamentalist practice, nobody is least of all people who claim to be free speech, fundamentalists, because what they really mean is, you know, I like any speech that I like. And that seems to be the way it's going. He did in an early stage qualify that quite considerably by saying he'd allow all speech, there's legal. But he is certainly pushing in Arabia in a direction where there's less regulation, the old idea of the blue tech verification, so that was a status you could gain on Twitter, if they had proved who you were, it was very useful to celebrities and brands so that people could trust that that really was a tweet from Stephen Fry, or David Beckham, or the Mars confectionery company offering a discount token, well, having a verified status can say, yeah, that's definitely them. That's a legitimate token. It's not a case of somebody standing up and pretending to be them and causing trouble. No Musk has decided, obviously, in part, he needs to monetize Twitter, because if they don't make a bit of money, they lose a lot. They've already lost a lot of their advertisers over the takeover. And he clearly is somebody who wants to make money, he spent 44 billion on it. He doesn't do that, to not make anything. So one of the ideas he came up with monetizing the blue tick scheme. Now, as it sits at time of recording, the suggestion is then anybody who pays for it will get a blue tick, there is no process to verify that they are who they say they are, or anything like that, which rather devalues the original point of the whole thing. And just makes it a status symbol. So he keeps going down that deregulatory road and of course firing people at the rate he has whether or not they have enough team left to maintain basic Twitter service. He's not going to have the people there to keep on top of content regulation and that's all very much going in the opposite direction. From what I see the law leaning towards in the UK under the EU at the minute, so I think we're on course for a bit of a collision there.

15:10  
All right, we also read the response to off the commissioner of internal logic in the European Union, where he says that in Europe, the bird will fry flight by our EU rules, basically, as a response to what Elon Musk said about deregulating, which we thought was quite interesting. And as he said, that Digital Service Act also puts interest in. So you, it seems also from what happened with Facebook, that they cannot social media owners that have too much power so that they can be above legislation. But can they use this power to, as you touched upon protector users are not?

15:58  
It's an interesting thought. It does certainly seem so far that the story would these eccentric people who take over and run these systems has been mostly about them, challenging the state and wanting things done their way. When you look at the kind of the kind of income sort of money that particularly Mark Zuckerberg has behind them, that makes it very powerful. The challenge in many ways is because the systems are so multi jurisdictional, it's very hard to hammer them with one set of regulation and the EU wants to do well, they can regulate things that are based within the EU fairly well. But it was coming in from outside coming in from the US. There's only so far you can go, it's very easy to make laws apply. But the enforcement becomes the real challenge. I mean, in theory, yes, certainly this power of this centralising power of having the very controlling very, as you say, powerful figures like musk and Zuckerberg and so on in charge of these networks, if they were persuaded to play ball with the regulators, or the law with the EU, whatever, that could be quite effective. Because you've got this site. This environment that does have that centralised control, ultimately reminds me of some of the debates we had, really about 20 years ago, knowing when peer to peer fun sharing was first thing. Napster got shut down in terrible trouble, because they had centralised control, and they knew the infringement was going on. And so the model shifted to the decentralised networks. And they were much, much harder to control. Because people were just selling software, the software could have legitimate purposes. They weren't marketing it for illegitimate purposes. And so it got out there. And you didn't have that point of centralised control that the whole thing, something you could pull in and bind in viral so so that, you know, certainly if the musket whoever decided that they were able to play ball that does make it more controllable than something like Mastodon, which seems to be emerging as the main platform for anybody who is not happy using Twitter anymore, because of what Musk is doing. And he's jumping ship and going elsewhere. Mastodon, very similar to Twitter in many ways, except that it is a collection of lots of different or can't remember that the jargon they use for the entry points, but basically lots of different servers, and you sign up to a specific server. And so they're more like micro communities. And in theory, you can access people if you can find them, who are signing in through other servers. But it isn't just as accessible a single Polat as, as Twitter is. And so that makes it harder to control in some ways. And yet in other ways, there are useful elements to that. I mean, there are servers that have been set up using the mastodon infrastructure, which are dedicated to the far right, and have some really nasty stuff on them. But all the rest of Mastodon has cut them off. So they're stuck in their own echo chambers, and they can't project out. And all of the studies I've seen of, sort of far right dangers and things like that on social media is they very much thrive on having people to offend, they fall apart very quickly if they're boxed in and only talking to themselves. So, you know, the Doc can see arguments both ways, in a sense, but I think it's always going to be challenging. And when you get people like musk, who are attracted to these rules, and he's particularly unique, I think compared to a lot of those big online oligarchs in the up when you look at the other bit, Jack Dorsey largely avoided I really commenting on politics, apart from the political implications of picking Trump off Twitter, obviously, Zuckerberg tends to try and avoid making political statements. And so Musk is different artware very recently, he was tweeting about the midterms in the US and saying, you know, vote for this party. And so that gives them powerful. And I'm not sure that somebody with that kind of power, who enjoys that kind of power, can be persuaded to play ball with the states, even if that centralised control would make it easier for enforcement if they were on board.

20:42  
So do you think this means we are moving towards more transparency? And how does the EU take towards regulation of social media? And how what what is us position if we are also considering the algorithm algorithmic Accountability Act? Is it any different?

21:02  
I think we are seeing a bit of a move towards the states wanting there could be more regulation and wanting there to be more accountability on behalf of the platform owners. But we're definitely seeing resistance from the platform's for that they want to use their own internal rules, they've got established in that work for them. And they're not keen on being controlled. So it really is going to come down to a baffle of who buckles first. And I think in a lot of cases, Musk might be different. I'm not sure. But most cases, certainly people Zuckerberg, what it will come down to is what's in their best interest, will they make more money ultimately by complying with the US approach the EU approach? Or is it more in their own financial benefit to resist?

22:00  
We had that mask stated that he plan to introduce new features to the platform. So just make the algorithm open source. By making the source codes available to the public, it will enable the users to have trust in the Twitter policies. The source code, unlike speech, and language is not open to interpretation. And therefore twist algorithm can be investigated by a compelling user from the public. So will the open source arguer algorithm assert transparency and prevent political censorship on the platform? And what impact do you think it will have?

22:32  
It might help certainly, I mean, for somebody like me who's not a programmer, it's very ofay. With these ideas, legal concepts, looking at the raw programme code, I wouldn't have a clue I would need somebody who programmed that to explain it to me. So as ever, it all depends on whether you speak the language the documents in as to how much it gives you in terms of transparency, but certainly making that sort of stuff accessible, knowing how the system works, new, at least how it feeds you what it wants to feed, you could be very useful, from a point of view of, you know, those of us concerned about things like access to a plurality of sources and voices and content. Because so much social media does drive you in the direction of more of the same. I think Twitter, there's at least a bit more control in terms of, you can select who you want to follow, or you can go through hashtags and that sort of thing. So the echo chamber you build is what you build for yourself. It's not so much like a system like Facebook, where they have greater control over what they put into your feed based on what they decide you want to see. So it's a little bit better that way, but I think that that could be a positive development.

23:56  
Okay, that's good to hear. So we were also wondering what outcomes position and the context of social media and disclosure and how their algorithms work would be. And maybe you can introduce with what outcome is because I'm not sure everyone will know.

24:12  
Okay, so Ofcom is the Office of Communications, which was established under the auspices of the Communications Act 2003. And is the primary UK regulator for the media sector in its broadest sense. Obviously, large parts of that have been outsourced to other entities here and there, but they have ultimate oversight. Ofcom really in the last few years have been starting to get to grips with the internet because a run devote the time off calm came into being the general government approach in those days to the internet was he's like the printing press. We regulate that stuff when it comes out. We go after the problematic content, but we're not going to have A regulatory system for the internet the way we do for broadcasting or some other media. And there's also never been quite the same level of oversight or ownership on the online media, as there was with things like newspapers and broadcast the legacy media from the point of view of ensuring morality, and I think Ofcom are moving to a position very rapidly now, where they're seeing this as something they do want to get to grips with. In the last decade, we've had a massive advance in streaming content, and certainly now, in 2022, teaching an undergraduate class where apart from a small number of them who live at home with their parents, almost none of them watch television, in the traditional broadcast sense anymore, they all engage with all of their content like that through streaming, it's a very different media experience, and Ofcom are recognising that. And they're moving towards seeing that it's an emerging focus for a lot of reasons, including ownership, including transparency, including pluralism, but it's still a bit vague, and in the early stages, and they still feeling to me that they're groping their way towards having a key policy on this, they are supposed to be publishing, at some point over the next couple of months, new documents about media pluralism, and where that's going in the Internet era, with a particular focus on social media, but they're they're a bit behind on the minute. I suspect, some of that work has been held up a little bit with the delays to the online safety bill, which obviously is envisaging a big Ofcom input into that and how that should work.

26:51  
I was wondering personally through our conversation that it is to be in traditional media that to ensure plurality, the media owners couldn't have too much to do with politics, when Elon Musk has very much interfered and made clear what his position is. So how do you think this translates to New Age media?

27:13  
It's an interesting question, because you're absolutely right with the rules of morality in the UK are very, they vary depending on the medium with broadcast media, it has always been very clear that broadcasters must not express an opinion, they must not take an editorial line. Whereas obviously newspaper proprietors are free to do so. But the influence of the media is unknowable. And that does mean various questions that we don't want one voice becoming too powerful and weighing in. And that really butts up against the nature of social media. If you think about the value of social media, Why does anybody go on Twitter? Why Are any of us are low? We give off about Mark Zuckerberg all the time. Why are there so many of us on Facebook, who would like in an ideal world not to be on Facebook, but we can't let it go? Because everybody else is there. There's a whole social life there. So much happens there. And there's a fear of missing out. And the point the value in these environments, the social media websites is the critical mass. So yeah, quarter of a million people have left Twitter and gone to Mastodon Mastodon isn't going to replace Twitter tomorrow. unless or until there's a mass migration the same way as MySpace died off largely after about 2007 When everybody went look over there at Facebook, that looks more fun, and everybody shifted across. So it's the it's a perfect storm, really, of the fact that you can't just look at these things and say, well, we need more different social media channels, and then that will share people out amongst them. If the whole value is everybody's on the same one. And then if you've got one person who would end up I mean, a musk and Twitter is a big thing. Zuckerberg is an even bigger David because he has been allowed to have Facebook and Instagram and WhatsApp. And that gives him huge influence. Now, Zuckerberg so far has not used that platform, that amplified voice he has that way to make political statements. Musk has and I don't think I would necessarily feel the need for a law, like the law that applies to broadcasting, which would prevent Musk from having opinions. But certainly there needs to be a level of oversight to ensure that he doesn't use his opinions or run his site in a way that shuts down anybody from expressing opinions which conflict with his I mean, he's already become notorious for having fired a couple of employees who've contradicted him on Twitter or engaged in debate with them. And he has pulled some parody accounts. Particularly those who parody him, not necessarily others. So that I think becomes a little bit dangerous.

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