Should Facebook be criminally liable for interfering with Australia’s lawmaking process?

Facebook has been accused of strategizing to interfere with Australia’s lawmaking process, by deliberately blocking Facebook pages for emergency, health and government services during its news blackout in February 2021.

According to reporting by the Wall Street Journal, employees of the company have brought forward evidence with the support of Whistleblower Aid, which suggest an internal team was specifically tasked to create “an overly broad and sloppy process to take down pages,” while also taking deliberate steps to hide information about its plans.

The whistleblowers allege this was done to gain an advantage over the Australian government and secure key changes, ahead of a draft bill being passed as law. In a deeply ironic twist, the bill’s purpose was to counteract Facebook’s excessive bargaining power.

If the allegations are found to be true, there will likely be legal repercussions. So, what can we expect?

The chain of events

Over recent years, Australia’s efforts to rein in Big Tech have earned it rare flashes of global attention. This peaked with the 2021 News Media Bargaining Code, a law designed to encourage Google and Facebook to strike deals with news publishers to support the cost of public interest journalism. 

The law is best known by Facebook’s retaliation. On February 18, 2021, Facebook dramatically actioned an earlier threat and imposed a “news takedown” or “blackout”.

The platform wiped clean tens of thousands of Australian pages. And it wasn’t just news pages – 17,000 pages representing government, charity, health, and fire and emergency services also went dark on the platform. 

Facebook’s story was it had no option. The federal government had passed the bill through the lower house the previous evening. “With a heavy heart,” Facebook proceeded with the blackout, as the alternative was to “attempt to comply with a law that ignores the realities” of Facebook’s value, it said.

Facebook apologized for “inadvertently” removing non-news content and pledged to review affected pages.

Subterfuge and fallout

Organizations fretted over their pages. Politicians and journalists railed variously at Facebook and the government to fix the situation and, on the sidelines, many of us lamented how devastatingly dependent we have become on easy-to-access, yet fragile, privatized tech infrastructure. Meanwhile, Menlo Park sent in its negotiators.

Chief Executive Mark Zuckerberg and his deputies negotiated directly with Treasurer Josh Frydenberg and Communications Minister Paul Fletcher, breaking the fourth wall while an artifice of democratic process hung; other elected representatives frozen and forgotten mid-frame in the capital. 

Between Thursday and Monday, the men forged a new deal, with Facebook having exacted four concessions. The net result is the company can virtually ignore the law (a stick), provided they make some significant deals with key media players (the carrot) – which they have since done.

In the days that followed, Australia’s upper house accepted the amendments and Facebook updated its statements, heavy heart lifted, expressing its “satisfaction” the government had agreed to its changes. With its mission accomplished, it ended the takedown.

New revelations of corporate deception

Now, 14 months later, an extraordinary story in the Wall Street Journal reveals there was nothing inadvertent about Facebook’s actions during that crucial parliamentary sitting week in February 2021. 

The whistleblowers have described in detail how a critical Facebook response team spent seven months meticulously planning the takedown in a way that secured outcomes favorable to Facebook.

They claim this happened with knowledge and support from the company’s most senior leaders. Photos of internal Meta emails show Chief Operating Officer Sheryl Sandberg lauding the team for the “thoughtfulness of the strategy” and “precision of execution,” and Zuckerberg echoing the praise.

In addition to over-blocking non-news pages, the whistleblowers also claim Facebook purposely disabled typical support measures that would have both better targeted the block and more rapidly restored the effects of over-blocking, and declined to investigate concern by multiple Facebook employees who noticed the hazardous impact that blocking was having.

Finally, all of this is claimed to have happened in stealth, with relevant employees instructed to not keep written records, and required to sign specifically-created non-disclosure agreements.

The takedown timing rebuked and embarrassed lawmakers, and galvanized a vociferous and emotive public response, enhancing Facebook’s opportunity to negotiate an advantageous outcome external to the democratic process.

The criminal consequences

Australian law has robust and established mechanisms for responding to bad faith behavior. Especially when behavior exploits and abuses the innocent, or breaches moral limits, we call on the criminal law to protect those unable to protect themselves.

With the major caveat that criminal prosecutions require the support of government prosecutors in order to bring them to court, on the face of it, two key offences are arguable from these recent revelations: fraud and terrorism.

Fraud offenses appear in both federal and state criminal law in Australia. They require proof of intention to dishonestly obtain a gain or cause loss to another. There is also a specific offense of dishonestly influencing a public official, such as a minister, in the exercise of the official’s duties.

Fraudulent conduct

How might it be argued Facebook engaged in the offense of fraud? First, the whistleblower claims suggest there was intent to systematically deceive in setting up a covert operations team designed to leave no record of its activities, and to imply through public statements that over-blocking was “inadvertent” rather than calculated.

The purpose was to secure economic advantage to Facebook, at the expense of every news publisher that fell within the draft bill.

Before it initiated its takedown strategy, Facebook would have been required to negotiate in good faith with all news publishers of a certain size in Australia. It may have also had to ensure that payment terms met the law’s “non-differentiation” test between publishers.

The concessions that Facebook secured during its calculated blackout mean that it can now decide who it engages with and what the commercial terms are, without concern about differentiation. And there are additional hurdles it can use to stall arbitration. These all clearly offer the company economic gain. 

Conversely, the bill’s amendments caused a loss to publishers across the country, who were deprived of the opportunity to receive fair compensation for the contribution their journalism makes to Facebook’s platform.

Finally, in creating extraordinary time pressure against a backdrop of inflated content takedown, Facebook dishonestly influenced public officials’ ability to exercise their public duty, especially to protect those whose interests had animated the law in the first place, such as small and mid-tier publishers.

Negotiating with terrorists

Terrorism might seem extreme, but consider the core elements of a terrorist act under Australia’s federal criminal law. First, an intention to advance a political, religious or ideological cause. Second, intention to coerce, or influence by intimidation, the government or the public. Both elements are more than arguable on these facts.

An action is a terrorist act if it has the above features and also causes a serious risk to the health or safety of the public or, alternatively, seriously interferes with or seriously disrupts an electronic system including an information system, a telecommunications system, or a system used for the delivery of essential government services. This places an entirely new complexion on Facebook’s unilateral blocking of great swathes of electronic communication – especially when you consider its timing, in the midst of a bushfire crisis and global pandemic.

It would clearly require a brave prosecutor to charge Facebook with terrorism. The point in us raising it is that it captures better than any other federal offense (especially in the absence of a specific offense of extortion) what the whistleblowers claim. Facebook appears to have coerced and intimidated the Australian government and public through revoking access to tens of thousands of Facebook pages, in a way that put Australian lives at risk.

It could be argued Facebook blocking its own service takes it beyond these requirements. Given the dependence of governments of all stripes on Facebook, it is an uncomfortable proposition for the platform to be beyond the law.

There is also a question of whether Facebook could activate the defense of advocacy or protest against a terrorism charge. This would require Facebook to concede that its statements (from last year and now) of the over-blocking being a mistake were dishonest.

There is renewed energy, in Australia and elsewhere, to think about criminal culpability for Big Tech firms who cause serious harm.

Facebook’s behavior in Australia – earlier dismissed as a matter of commercial liberty, but not so distant from an act of terrorism ­– might be just the test case we need. – Rappler.com

Julia Powles is Associate Professor of Law and Technology and Director of the Minderoo Tech & Policy Lab, an interdisciplinary research institute at the University of Western Australia Law School with a mandate to tackle lawlessness and build pro-public alternatives in the tech ecosystem. Twitter: @juliapowles

Hannah Smith is a Research Fellow at the University of Western Australia, leading work on novel governance mechanisms for responding to emerging technologies at the Minderoo Tech & Policy Lab. She received her BA in Jurisprudence, BCL, MSt in Socio-Legal Research, and DPhil in Socio-Legal Studies from the University of Oxford. Twitter: @92HSmith