An ongoing Commons Select Committee inquiry into ‘fake news’ is expected to look in detail at the role that intermediaries of information such as Facebook and Google play.  Their significance in the online landscape is not in question: it is likely that the two companies will account for more than half of all UK digital ad revenues by the end of 2017. Leighton Andrews, Professor of Public Service Leadership and Innovation at Cardiff Business School, who has previously called for European regulation of Facebook and Google, argues here that Ofcom should consider regulating the two tech giants.

During the course of 2017, the large ‘big tech’ internet intermediaries have come under an unprecedented degree of scrutiny worldwide.  Facebook posts and Google search listings have come under fire as enablers of so-called ‘fake news’ and propaganda by extremist, terrorist and hate groups, with Facebook’s role in ‘dark advertising’ by hostile foreign powers particularly in the spotlight. Google’s YouTube has been hit by a backlash from advertisers. Google is currently fighting a heavy European Commission fine for steering customers to its own platform.

But the dominance of Facebook and Google on digital and particularly mobile markets continues to grow, outpacing all others. They are the main recipients of the growth of digital and mobile advertising revenue in the UK, at the expense of the rest of the media landscape.

Yet the UK’s media regulator, Ofcom, does not currently regulate Facebook and Google, at all, despite admitting they are ‘media companies’ who have a huge impact on the media landscape where Ofcom has a legal duty both to regulate and to promote competition, investment and innovation.

Over the course of the last year, its representatives have, with different levels of nuance and emphasis, swayed around the issue like cyclists avoiding a dead squirrel in the road. Last autumn, Ofcom’s chief executive Sharon White told the Royal Television Society that she did not think Ofcom should regulate Facebook or Google (or indeed, Twitter).

There are some signs that Ofcom board members are thinking about the impact of the duopoly’s dominance of advertising and the media market. This February, when Ofcom presented its annual plan in Cardiff, I asked Ofcom board member Dame Lynne Brindley what was their view of the duopoly’s dominance of the UK advertising market. She told me that the dominant position held by Google and Facebook in respect of mobile advertising was ‘a big issue’ and that as a regulator, Ofcom would not want to be left with responsibility for regulating only a smaller area of the overall media market. She rightly said that this was a matter for the Government and for Parliament. In March, I asked Ofcom’s chief executive herself at the Oxford Media Convention whether, given the duopoly’s dominance of UK media advertising, there wasn’t a case for intervention, and that surely Ofcom would not want to be left regulating a small portion of the media market. She replied that while she was nervous of regulation, and wouldn’t be pressed into supporting it, “it was a big concern”, and she could see the case if the commercial viability of the sector was threatened.

This month Ofcom’s Chief Executive told the Royal Television Society in Cambridge that she thought Facebook and Google were media companies. But then she said:

“I don’t think regulation is the answer because I think it is really hard to navigate the boundary between regulation and censorship of the internet. I do think though that the companies need to take more responsibility as publishers as well as platforms and I also think to be frank that content providers and advertisers – as you’re beginning to see – need to be increasingly fussy about the environment in which they’re putting their content.”

Ofcom is caught in a trap of its own making. It accepts that the Big Tech duopoly’s impact on the UK advertising market is ‘a big issue’. It accepts that they are ‘media companies’. But it does not want to regulate them.

The notion that it is hard ‘to navigate the boundary between regulation and censorship of the internet’ shows just how far the big tech companies have captured the discourse around regulation. The internet intermediaries have been able to rely on provisions dating from the early days of US, EU and UK internet laws in the 1990s to shield themselves from certain kinds of regulation. But regulation and censorship are not the same thing.

We need to nail the argument that regulation equals censorship. It does not. Ofcom regulates broadcasters but no-one calls that ‘censorship’. Five years ago, former senior Ofcom regulator Robin Foster made a series of proposals which carefully avoided the danger of intermediary regulation becoming any form of censorship. As he said then “experience of media self-regulation elsewhere suggests that there are advantages in having some form of statutory underpinning”. As the former Ofcom chief executive, Ed Richards, told the House of Lords back in 2014, regulatory interest can ‘nudge’ dominant players to modify behaviours.

It is actually Facebook and Google and their algorithms that do much of the censoring of the Internet now. Last year a senior Ofcom staff member presented to the European Parliament the case of Facebook censoring the famous Vietnam War photo of a young naked girl fleeing a napalm attack as an example of the problems of algorithms acting as curators of content. The biggest censors on the Internet, outside authoritarian regimes, are the Internet Intermediaries. Their actions should not be left without some form of statutory accountability.

Of course, not all of the issues raised by the behaviours of the Internet intermediaries fall to be regulated by Ofcom. Open Democracy’s reports on breaches of UK electoral law in the Brexit referendum  raise the role of the Electoral Commission, and the LSE’s Damian Tambini and others have called for a new approach to personally targeted advertising on social media platforms. The Information Commissioner commenced an investigation of possible data breaches during the Brexit referendum. The Advertising Standards Authority has responsibility for personalised advertising. The CMA would have responsibilities in respect of competition for digital advertising. It is not clear that the scope and power of Facebook and Google has been considered by regulators on a cross-regulatory basis, and some of the issues raised by data, algorithms and advertising could cross the boundaries of regulatory knowledge and capacity.

The House of Commons Select Committee on Digital, Culture, Media and Sport has re-opened the former Culture Committee’s inquiry into fake news, and responses are due by October 31st . These issues should be raised in that committee – and Ofcom’s contradictions and evasions need to be brought into sharp focus.

This post gives the views of the author and does not represent the position of the LSE Media Policy Project blog, nor of the London School of Economics and Political Science. This post was originally published on openDemocracyUK and is republished with permission from the author.