This week, the Internet and its governance experienced a significant accountability failure. This failure had two faces: the first one concerned the Australian government’s choice to put pressure on tech companies to strike a deal with traditional publishers, led by NewsCorp. The second one was Facebook’s drastic move to block news’ content, essentially preventing the ability of its users to see and share news on its platform.
Let’s take things from the beginning.
Earlier this year, the Australian government drew legislation “to level the playing field” on profits between technology platforms and traditional publishers. The Mandatory Code of Conduct would compel technology platforms with significant market power to enter in negotiations with registered publishers that earn over $150,000 AUS a year and are in compliance with the Australian news and media codes of ethics. On Wednesday, the law passed the lower house of the parliament and, with cross-party support, it is expected to pass the Senate next week.
Google complied with the law. Facebook decided not to.
This is not a first. Last year, the French government, in a similar move, instructed Google to negotiate in “good faith” with publishers, which resulted in Google negotiating a reported $76 million payout deal. The deal was the outcome of France’s attempt to enforce article 11, often referred to as the “link tax”, of Europe’s controversial copyright directive.
There are a lot of issues with the “link tax”. Public Knowledge’s Harold Feld provides a very good account of what these are, here. Other sources also have pointed to the concerns over the uncertainty of its effectiveness.
But, here, I want to talk a bit about the Internet. Not a lot of people talk about what all this is doing to the Internet.
In 1997, Tim Berners-Lee wrote:
“Normal hypertext links do not of themselves imply that the document linked to is part of, is endorsed by, or endorses, or has related ownership or distribution terms as the document linked from. However, embedding material by reference (sometimes called an embedding form of hypertext link) causes the embedded material to become a part of the embedding document.”
So, the hypertext link is nothing more than a reference.
Further down, Berners-Lee continues:
“Meaning in contentSo the existence of the link itself does not carry meaning. Of course the contents of the linking document can carry meaning, and often does. So, if one writes "See Fred's web pages (link) which are way cool" that is clearly some kind of endorsement. If one writes "We go into this in more detail on our sales brochure (link)" there is an implication of common authorship. If one writes "Fred's message (link) was written out of malice and is a downright lie" one is denigrating (possibly libellously) the linked document. So the content of hypertext documents carry meaning often about the linked document, and one should be responsible about this. In fact, clarifying the relative status of the linked document is often helpful to the reader.”
The reason everything is wrong with the “link tax” is stated above. It treats the hyperlink as something that carries a specific meaning. When hyperlinks are shared through platforms and search engines, they neither “endorse” nor “claim authorship”.
The “existence of the link itself does not carry meaning”.
This changes fundamentally the meaning and scope of hyperlinks. It ascribes to them a meaning they are not meant to have.
This debate not just about Facebook or the Australian government or publishers. This is about the web.
And, the implications of the “link tax” go further down the architecture stack.
Here’s what Internet Society’s (and my boss) Andrew Sullivan said about the “link tax” in 2018:
“The link tax, as described, well, to the extent it's ever been described, is actually impossible. It's technically impossible because nobody will ever deploy it. The only way that it will ever get deployed is if everybody agreed that I really want to be taxed.”
That does not seem plausible.
“And since it's unlikely that people are going to sign up to be taxed, then they're never going to click on a link that causes them to be taxed. All of the clients will simply not implement the necessary technical requirements to, you know, to cause the tax to take effect. And there are only two possibilities at that point. Either the government authority can say, well, you're not allowed to use a board compatible mechanism in which case the ‑‑ backward compatible mechanism in which case the internet is over. Or, you are allowed to use a backward compatible linking mechanism in which case only the backward compatible mechanism is going to be deployed by clients. Those are the only two possibilities and I've yet to have anybody explain to me how we get out of that. On the internet if you actually want people to deploy things you have to give them a reason to deploy it. “
So, this whole debate is not only about Facebook or governmental policy. It is about the Internet’s goal to be trustworthy, open, secure and global. Conditions like integrity, reliability, availability, accessibility matter for the Internet. They should matter in any policy. And, in the case of Australia, they evidently don’t.
The Australia and France cases are not going to kill the Internet. They are deep cuts to its architecture, but they are not fatal. If the Internet dies, it will die of a thousand cuts. The BBC has reported that Scott Morrison, Australia’s Prime Minister, has already spoken with India’s Narendra Modi and is seeking international support. Here’s your thousand cuts – the possibility of the ‘link tax’ exploding as an international policy.
So, to sum up: Australia’s Code is a terrible policy. Facebook’s decision was out of self-interest. The Internet is the casualty.