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This working paper served as a basis for an interview organized by Olivia Dufour in French in Actu-juridiques-Lextenso on 11st of January 2021.
Actu-juridiques: The deletion of Donald Trump's Twitter account arouses a strong emotion on social network, and not only among its supporters. What do you think about this?
Marie-Anne Frison-Roche: The account was a private account as Donald Trump underlined it many times. If it was about an institutional account of the Federal State, the legal analysis could be different because the grip of a private firm on public authority seems to compromise the hierarchy of norms. But here Donald Trump, using an ordinary vector as an ordinary person, was applied the same regime as everyone else: he couldn't ignore the risk of his account being closed, which he did. You cannot have it both ways, by avoiding all constraint in expression, then claiming your status as head of state when subject to the rule of law of everyone. This is the logical application of regulatory-like power exercised by critical operators in their sector. In this Compliance Law, this disciplinary power should be articulated with the right to have a fast and effective recourse before a judge to possibly direct Twitter to reopen the account. This recourse is open to Donald Trump. Maybe he doesn't want a judge to appreciate the strength of his rights in the face of the power of Twitter?
Actu-juridique: This incident does not prevent concern. Are we not giving too much power to these private companies? This raises the question in France of the relevance of the Avia system...
MAFR: We do not have choice. We must respond to the rupture created by the Internet which introduces a new temporality: immediacy. But traditional Law does not have this relation to time, the judge is slow by nature and this is, by the way, necessary in order to events calm down, so that we enter the time for reflection and judgment. The fight against illegal or non desirable contents is part of a radically different, and even contradictory, logic. The jurisdictional system is appropriate to punish the author of an illegal content, it is the classical mission of justice, it knows how to do it. But a judge, even if he or she is reactive, cannot materially in a few minutes suppress the video of a beheading, detect infox, prevent wrongdoing. We must so invent new solutions which correspond to that office in this new universe that is Internet.
GAFAMs built a world which does not exist before and in which everyone defined its own original space (Twitter does not look like to Facebook which does not look like Google) and defined its rules through what my colleague Philippe Neau-Leduc calls the "pouvoir réglementaire privé (private regulatory power)". In this world, it is necessary that someone press the button, without procedure nor contradictory debate, because it is the right temporality. Even if it means to provide heavy penalties for any abuse of this power. These firms are the only one able to act efficiently. It is to public regulators to constantly supervise them and to the judge to always be accessible to the one submitted to their disciplinary power.
Actu-juridiques: Should we therefore resolve by default to give our freedoms to private and opaque mastodons?
MAFR: This is by no means a "default" solution! Some propose to dismantle them: rather than weakening them (and who will take charge of effectively fighting against the evils of this new world, because I imagine that we are not proposing to destroy Internet….?), it is more adequate to use their power in the service of the general interest, as one uses the strength of the adversary in martial arts.
This is a perfect illustration of the contribution of Compliance Law to the governance of Internet. They are public and political authorities which keep the monopoly to set "monumental goals", here the fight against hate and respect of the person. While the concretization of these goals is internalized in "crucial operators", here the GAFAMs. They especially do it through commitments but also through regulatory and disciplinary powers. Law submits them to a constant supervision to ensure that they effectively and efficiently do their mission. For this, they are submitted to the principle of transparency. Concerning the GAFAMs, this is enhanced by the new notion of explainability of algorithms: it is their responsibility to constantly explain to internet users and authorities what they need to know in order to better monitor them effectively. It is a real inversion of the proof burden. They must, for instance, explain the functioning of their algorithms and show that they are not biased. While these operators are constantly supervised, in ex ante, the concerned people are endowed with a right to immediate and effective recourse before a judge who have a power of injunction.
No one supports that this system is perfect: in practice, we must prefer the least bad systems; if there is a better one, I will adopt it with pleasure. I would like to criticize everything and always. But the surge of hate in the digital space is so extended that it is necessary that Compliance, which goes beyond regulation and gives it a new dimension, concretizes an alliance between firms and public authorities to efficiently protect human beings. We must change our regulation habits and know who are our ennemies.