Are Tech Giants Like Google & Meta Losing Their Legal Immunity
Do regulatory laws apply to the biggest digital platforms in the world? It is often said that tech giants such as Google, Meta and Apple are too big to regulate properly and take on, which often causes a problem in terms of regulation.
There is also a significant difference of standards in terms of regulation and accessibility. The US takes a particular view, bearing in mind capitalism and free speech, whilst China’s view is contrasting to the US and that in turn contrasts with the UK and the EU.
Many platforms used today are merely that. Platforms. Entities such as YouTube and Facebook are not responsible for the content that is posted by its users, it merely provides the ‘equipment’ to allow users to post content provided the content complies with the platform’s terms and conditions and the laws of the relevant jurisdiction.
Often the position adopted by these platforms is that they regulate as best as they can, but they are mindful of minimising free speech, and as long as it is not deliberately obvious to be detrimental, such as child sexual exploitation, sexual offences, obvious inciting of violence or against public morality, anything goes.
However, that position may be changing and it may bring about a domino effect, at least in Europe and possibly the UK.
Stuart Southall of KANGS outlines the growing regulatory scrutiny of tech giants and the increasing liability of AI-driven platforms and channel partners for online content.
Is Google Responsible for What Its AI Says?
A Court in Munich found that Google could be directly liable for allegedly false statements generated by its AI Overview feature. The Judgment confirmed that the AI Overview was a statement made on behalf of Google rather than being third party information, and therefore it was a representation made by Google. Consequently, the German Media Regulator has confirmed that Google AI Overviews is now subject to German media laws.
This decision is a marked departure from the European Union Digital Services Act, which predominately shields platforms from responsibility for illegal user generated content, with the rationale being that Google has imposed AI Overview (and Gemini) into its search functions, and the outputs are therefore Google’s outputs rather than third parties.
It means that companies such as Google are going to have to concentrate more closely on the output of its LLMs in order to ensure that it does not fall foul of media laws, the Digital Services Act and associated Intellectual Property laws.
YouTube, Gambling Advertising and Platform Liability
In a similar step, the Court of Justice of the European Union is considering an appeal by Google following the imposition of a fine of €750,000 by Italy’s communications regulator AGCOM under Italy’s 2018 legislation banning gambling advertisements.
In Italy, Google was found liable because five of its content creators used five channels to invite people of any age to submit videos of their gambling winnings in order to receive cash rewards. Google was also ordered to remove six hundred and thirty videos and similar content.
In its appeal, Google argued to the Court of Justice of the European Union that gambling is outside the EU e-commerce rules. Part of its argument is that requiring Google to review and ‘approve/reject uploaded videos would amount to a restriction on ‘freedom of expression.’
The interesting point that the Court of Justice of the European Union found was that the protection can dissipate in circumstances where the platform moves beyond being a passive host. It is likely that the Court reached this decision because Google has requirements for channels to join its Partner Programme, such as minimum viewer and subscriber and content thresholds, whilst simultaneously checking a channel’s theme, reviewing most watched and related metadata before sharing advertising revenue and so, it was held that Google participated.
The presiding Judges held that the reporting of illegal material or automated tools flag content. That is to be expected. It is also wildly different to reviewing content, making a decision and sharing revenue streams and so, considered that Google had, or was deemed to have, knowledge of unlawful activity in Italy.
A decision like this must be viewed broadly. Sufficient protections must be afforded to platforms such as Google (YouTube), so that they can deal with matters on a good faith basis in terms of investigating unlawful content whilst balanced against how a platform such as YouTube operates.
The question is should a blanket immunity be afforded to a platform when it acquires knowledge beyond what may be deemed reasonable and it therefore knows that a law has been broken, as was the case in Italy.
Whilst neutrality and protections are important, it is reasonable to suggest that Google exceeded neutrality by its own conduct.
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