Civil society actors and interest groups play an important role in influencing the rules that govern online content. Max Heermann highlights what the battle to adopt the EU’s 2019 Copyright Directive can tell us about the interest group politics of online content regulation.
For a long time, western democracies left the governance of online content primarily to private companies. In the late 1990s, when the foundational legal rules for the emerging World Wide Web were written, the United States, the member states of the European Union and other liberal democracies exempted intermediaries such as internet service providers (ISPs), search engines and social media platforms from legal liability for user-generated content published on their services.
This limited liability regime, enshrined in laws such as Section 230 of the US Communications Decency Act (1996) or the EU’s E-Commerce Directive (2000), has since been a cornerstone of what political scientists Henry Farrell and Abraham Newman have called the “liberal international information order”. However, the idea underpinning this order – the notion that the free flow of information online reinforces liberal democratic norms – has since lost much of its clout. Instead, online discourse has become associated with polarisation, misinformation and hate speech.
As a result, the liability exemptions of online platforms are increasingly contested. In the US, Section 230 has been attacked from across the political spectrum, although Democrats and Republicans disagree over whether platforms should be taking down more content or removing less of it. The UK government is preparing a comprehensive Online Safety Bill targeting not only illegal but also “legal but harmful” content. Meanwhile, the EU’s Digital Services Act maintains the established liability regime but sets detailed procedural roles for content moderation on platforms. This forms part of the EU’s declared turn towards “digital sovereignty”.
Civil society and interest groups
Despite these developments, the “liberal international information order” has powerful defenders. On the one hand, Big Tech firms have invested substantial resources into lobbying. Moreover, research suggests that platforms can leverage their popular brands and close connections to their users to thwart regulatory initiatives. On the other hand, civil rights groups have long defended the limited liability regime as a guarantor of free speech online.
While previous research has documented the increased contestation of social media self-regulation, we still know little about how civil society and special interest groups influence regulatory proposals during the policy-making process. In a new study, I examine the interest group politics behind a significant policy change in online content regulation: the adoption of the EU’s 2019 Copyright Directive. A highly controversial and salient reform, the Copyright Directive was the first EU law that departed from the E-Commerce Directive’s liability regime by making online platforms directly liable for copyright violations by their users.
Opponents of the Copyright Directive mobilised large public protests and were only five votes short of stopping its adoption in the European Parliament. Critics argued that the Directive effectively mandates the use of algorithmic upload filters controlling what users post online and thereby threatens their freedom of expression.
Lobbying and counter-lobbying
The Copyright Directive was opposed by a coalition of Big Tech firms such as Google and Facebook, as well as civil society organisations such as the European Digital Rights Initiative (EDRi) and the consumer association BEUC. Previous research has shown that, when salience is high, such “heterogeneous interest group coalitions” uniting business and civil society groups are more successful than homogeneous coalitions composed of only business or civil society actors.
These strange bedfellow coalitions can provide policy-makers with differentiated policy information and, by overcoming the ingrained cleavage of business and civil society, send a strong signal regarding the importance of an issue and the risk of societal backlash. From a lobbying research perspective, it is therefore surprising that this heterogeneous coalition failed to prevent the adoption of the Copyright Directive’s new liability rules.
Indeed, at first, their opposition to the European Commission’s legislative proposal, which included a content filtering obligation, seemed to be successful. In June 2018, the European Parliament rejected the draft legislation. However, in September 2018, a slightly modified text, which removed explicit mentions of filters but otherwise retained the liability reform, was adopted in the Parliament and subsequently found its way through the trilogue negotiations into the final version of the bill.
What explains the Parliament’s change of heart? I highlight the successful counter-lobbying of supporters of the Copyright Directive, notably business and rights holder associations from the music, film and press industries, and their political allies. They employed a delegitimation strategy, pointing to the unconventional coalition of NGOs and business groups to discredit civil society activists as “Silicon Valley’s useful idiots”.
Emphasising that the arguments against the Copyright Directive would help the commercial interests of Big Tech, the Directive’s supporters called into question the motivation and credibility of activists. This put civil society groups under pressure to distance themselves from their business allies. Consequently, the heterogeneous coalition disintegrated in late 2018. Civil society groups continued their campaign against the Copyright Directive on their own, mobilising public protests. Nevertheless, members of the European Parliament again used the delegitimation strategy to discredit protesters and to justify their non-responsiveness to the protests.
This delegitimation strategy was coupled with the framing of copyright as a conflict between “European culture and values” and “American wild west capitalism”, and as a question of “digital sovereignty”. By 2019, this framing had become dominant in the European Parliament, sidelining alternative frames that depicted copyright as a civil rights or consumer protection issue. The “European values/digital sovereignty” framing was attractive for and widely used by both right-wing and left-wing legislators, securing a slim majority in the Parliament’s final vote in March 2019. In particular, the framing split the social democratic group, which in past copyright debates had sided with civil society groups.
What does the copyright case tell us about the future of online content politics? First, in the techlash era, big platforms may not always be strong lobbying allies but may turn out to be a liability. Digital rights advocates therefore need to reconsider their advocacy strategies.
Second, the notion of “digital sovereignty” can be a powerful strategic frame, both to discredit and break up coalitions and to bring together new alliances. In the EU, it may serve as a “coalition magnet” securing legislative support from the centre-left and the centre-right.
However, the copyright issue also shows that “digital sovereignty” can be used to protect domestic economic interests at the cost of disregarding civil rights concerns. Beyond content regulation, it remains to be seen to what extent digital sovereignty initiatives are compatible with or undermine the liberal international information order that has shaped the internet over the last three decades.
For more information, see the authors’ accompanying paper in the Journal of European Public Policy
Note: This article gives the views of the author, not the position of EUROPP – European Politics and Policy or the London School of Economics. Featured image credit: Kaspars Grinvalds/Shutterstock.com