Amin Hosseini is an IPilogue Writer and an LLM Candidate at Osgoode Hall Law School.

On September 22, 2021, and its independent fact-checkers for defamation. In the , Stossel claimed that he uploaded two short video reports in which he interviewed experts about climate change, yet ��Meta (“Facebook”) publicly announced that Stossel’s reporting had failed the fact-checking process.����

In the first video, "Government Fueled Fires," Stossel stated that poor policies were the major cause of this year's fires and highlighted the importance of the role of climate change in the annual forest fires in California. Facebook examined the forest fire footage and marked it with a "missing context" label using its fact-checking tools.

��The second video, “Are We Doomed?,” questioned claims by “environmental alarmists” and elicited a similar response by Facebook’s fact-checking program — it was classified as "partly false information."

Stossel argued that the labels caused irreversible damage to his reputation, decreased the viewership of his content, and led to the loss of revenue. Regarding the first video, he claimed that Facebook attributed it to a statement that he did not produce; while for the second video, he stated that Facebook damaged his reputation by claiming he made false statements.

In response, Meta filed a motion for dismissal under and requested that the case be dismissed under (“SLAPP”). Briefly stated, SLAPP lawsuits�� seek to suppress and stifle critics to force them to cease voicing their opposition. Therefore, to safeguard freedom of speech, some jurisdictions have enacted anti-SLAPP laws.

The Court ��explained that the First Amendment protects expressions of subjective opinion and “not false statements or implied assertions of objective fact.” According to the judge, "[s]imply because the process by which content is assessed and a label applied is called a fact-check does not mean that the assessment itself is an actionable statement of objective fact.” In other words, the Court alluded that only reflects a subjective assessment of the "accuracy and reliability" of the claims and is not a statement of objective fact. �� Accordingly then, the Court dismissed Stossel's lawsuit.

It is noteworthy that the spread of disinformation is pernicious. One salient example was the , where disinformation led to noncompliance with public health measures, such as masking, and high levels of vaccine reluctance.

To combat “fake news,” governments must carefully regulate social media content. For instance, based on a , if social media businesses operating in Germany do not remove unlawful, racist, or defamatory posts within 24 hours, they risk hefty fines. Ontario addressed this issue by passing the in 2015.

Since the definition of fake news and disinformation is so broad, however, overly strict laws may and imposing limits on access to justice. Therefore, legislation must strike a balance between upholding critics' freedom of speech with others' rights to protect their reputations against false claims.

Further Reading

To balance the Constitutional rights of the parties, access to justice and freedom of speech, a Minnesota Court outlined a method for determining if the SLAPP law should be employed. You may read .

The post Stossel v. Meta Platforms: The continuous fight against disinformation appeared first on IPOsgoode.

M. Imtiaz Karamat is an IP Osgoode Alumnus and Associate Lawyer at Deeth Williams Wall LLP. This article was originally posted on�� on June 15, 2022.

On June 2, 2022, the Supreme Court of British Columbia (the Court) issued its decision in the ongoing class action matter,��Douez v Facebook, Inc.,��, holding that Facebook, Inc. (Facebook) was liable under several provincial privacy statutes for using class members’ likenesses without their consent.��

As previously reported by the E-TIPS ® Newsletter��, the representative plaintiff (Douez) brought a class action lawsuit against Facebook, claiming that Facebook used class members’ names and images in its advertising program, Sponsored Stories, without proper consent and contrary to the privacy legislation of British Columbia, Saskatchewan, Manitoba, and Newfoundland and Labrador (NFL).

Through Sponsored Stories, advertisers pay Facebook to associate their mark on Facebook’s social media website with users that performed certain social actions in connection with the advertiser (e.g. users who click the “like” button on the advertiser’s Facebook Page). ��Facebook’s software increases the likelihood that the user’s social connections would see the user’s name, image, and social interaction in association with the advertiser’s mark. ��The Sponsored Stories were not displayed on the user’s home page and Facebook did not inform the user when their name and image was part of a Sponsored Story.

Prior to assessing the substantive issues, the Court addressed Facebook’s argument that the Court lacked jurisdiction to hear the case. ��Facebook argued that Manitoba’s��The Privacy Act��and the NFL’s��Privacy Act��expressly designate the superior courts of their respective provinces to adjudicate privacy claims and the Court was prohibited from deciding on the matter. The Court did not agree with this interpretation, relying on the constitutional principle that no province has the right to legislate extraterritorially and the legislatures of Manitoba and NFL lack legislative competence to prohibit the Court.

The Court addressed the liability issues by way of summary trial, determining that Douez had established a��prima facie��breach of the relevant privacy legislation and Facebook had the burden of proof to show that users provided valid consent. Facebook argued that users registering with Facebook’s social media website expressly consented to its terms of use, which included Facebook’s use of their information in Sponsored Stories. ��However, the Court found that express consent was not established because the terms of use did not clearly inform users that their information would be incorporated into Sponsored Stories. ��Further, the Court held that Facebook could not establish a basis for implied consent as users were not informed when their information was used in Sponsored Stories.�� The Court held that the issue of remedies was “fact-intensive” and not suitable for summary trial, and therefore must be adjudicated at a conventional trial.

The post Facebook Held Liable For Using Personal Information Without Consent appeared first on IPOsgoode.

On April 23, 2022, the European Parliament and Council reached a provisional political����on the Digital Services Act (DSA). Based on the principle that what is illegal offline should be illegal online, the DSA imposes digital regulations with the goal of stopping the spread of illegal content and ensuring the protection of users’ rights.

The rules set out in the DSA primarily apply to online intermediaries and platforms providing services in the European Union (EU), including online marketplaces, social networks, content-sharing platforms, and app stores. The legislation will impose obligations on regulated entities that are proportionate to the nature of their services and size of their user-base. For example, very large online platforms (VLOPs) and very large online search engines (VLOSEs) with more than 45 million active monthly users will have more stringent responsibilities than micro and small enterprises.

The DSA is set to impose a series of new requirements that will have a significant impact on online business:

1. Online Marketplaces: The DSA will impose a duty of care on online marketplaces in relation to the sellers who list items or services for sale on the platforms. These marketplaces will also have to collect and display certain information in association with listings to better inform consumers.
2. Risk Management: VLOPs and VLOSEs will be obligated to carry out an annual risk reduction analysis aimed at reducing risks associated with (i) the dissemination of illegal content; (ii) adverse effect on fundamental rights; (iii) the manipulation of services that affect democratic processes or public security; and (iv) adverse effects on gender-based violence, minors, and users’ health.
3. Dark Patterns: The DSA will prohibit the use of confusing or deceptive user interfaces and practices that are aimed at misleading users.
4. Recommendation Systems: To improve transparency, the DSA will mandate that VLOPs and VLOSEs offer systems for recommending content to users that is not based on their profiling.��
5. Crisis Response Mechanism: Influenced by the conflict in Ukraine, the DSA allows the European Commission to analyze the impact of VLOPs and VLOSEs on a crisis that is affecting public health or security. Based on this analysis, the European Commission may put in place select measures for the respect of fundamental rights.
6. Minors: Platforms will have to implement protection measures to ensure the online safety of minors, including prohibitions against targeted advertisements based on minors’ personal data.

The provisional agreement is subject to approval by the European Council and Parliament. Once adopted, the DSA will apply 15 months or from January 1, 2024, whichever is later, after entry into force. For the VLOPs and VLOSEs, the DSA will apply four months after their designation.

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When about Facebook’s plan to change its corporate name hit the internet, branding experts offered their about the driving force behind the social media giant’s decision to rebrand itself. speculated that the rebrand may be part of Facebook’s strategy to distract the public from the reputational harm it has suffered in recent years as a result of scrutiny over the on the company’s social media platforms. Others predicted Facebook’s decision to change its corporate name to be part of the company’s vision for building the - a term used to describe a shared virtual environment accessible through the internet.

On October 28, 2021, Facebook’s founder, Mark Zuckerberg, that the company will change its corporate name to “Meta”. The recent shift in the technology conglomerate’s brand identity has introduced a great opportunity to discuss the intellectual property implications of rebranding a business. Given the significance of a company’s trademarks to its brand identity, this post is dedicated to providing some insight about trademark considerations for a corporate rebrand.

Trademarks

Under of the (“Act”) in Canada, a trademark is a sign or combination of signs that distinguishes a person’s goods or services from those of others in the marketplace. A sign, amongst other items listed in the Act, includes a letter, word, numeral, figurative element, three-dimensional shape, or moving image. Changes to a company’s name, logo, or slogans often engage trademark rights.

Throughout history, numerous companies have changed their names to cater to a larger audience; swapped their original logos for a more modern look; and abandoned controversial slogans. In 1991, Kentucky Fried Chicken, in an effort to cultivate a more health-conscious image for the company, Apple, formerly known as “Apple Computer”, depicting Isaac Newton sitting under an apple tree to a more minimalistic design. In 2012, Reebok, following public criticism of its marketing campaign in Germany, : “Cheat on your girlfriend, not on your workout.”

While unregistered trademarks receive , the scope of protection for an unregistered mark is narrow and enforcement is often difficult. Trademarks may be registered under the Act in Canada. Registration confers to the owner the exclusive right to use the trademark across Canada in association with the specified goods or services for 10 years beginning on the day of registration and for subsequent periods of 10 years upon . The exclusivity of use granted to a mark-owner under the Act makes registration essential to a successful rebrand.

When brainstorming a new name, logo, or slogan for a business, it is important to keep in mind the registrability and availability of the proposed mark.

First, to find out whether a mark is registrable in Canada, a careful review of the set out in section 12(1) of the Act is necessary. To avoid registrability issues, it is important to avoid choosing individuals’ names or marks that are descriptive or deceptively misdescriptive of the company’s products or services. From a , aside from the statutory requirements for registrability, it is important to opt for marks that are simple, recognizable, and flexible to allow for future growth in the market.

The availability of a mark can be found through a comprehensive search of in the trademarks database of each jurisdiction in which the business plans to operate. A thorough search of each database will be extremely helpful in narrowing down the business’s options with respect to marks and limiting costs associated with registration down the line.

Finally, consulting with seasoned trademark professionals and branding experts is key to a successful rebrand strategy.

Conclusion

Although an effective rebrand does not necessarily require abandoning the company’s old trademarks, a proactive approach to registering the new marks is a crucial element of a successful rebrand. Aside from meeting registration requirements, a smart rebrand often involves careful consideration of whether the new marks resonate with the intended market. After all, a rose by any other name may smell as sweet but a business with a new name may not be as successful.

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The post “What’s in a name?”: Trademark Considerations for Rebranding a Business appeared first on IPOsgoode.

Photo by Brett Jordan ()

Meena Alnajar is an��IPilogue��Writer, IP Innovation Clinic Fellow, and a 2L JD Candidate at Osgoode Hall Law School��

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On October 4, 2021,��it was publicized that Facebook Inc.����the U.S Federal Trade Commission’s (FTC) antitrust case that aims to force Facebook��to��sell Instagram and��WhatsApp. The FTC initially filed a complaint that����and��requested the sale of Instagram and��WhatsApp��to prevent a monopoly over the social media market. Does Facebook��have a monopoly over the market?��Or��simply��a strong foothold?����

What is Antitrust��

The FTC’s Bureau of Competition enforces antitrust laws. These laws��. The market is said to be ‘free’ and active when there is aggressive competition. This competition is productive for society because it gives��such as lower prices, higher quality products and services,��and��greater��innovation.��

Antitrust laws try to����which are those monopolies obtained, preserved,��or attempted by a firm that tried to destroy its competitors on purpose. Under��, attempted monopolization is an antitrust offence if it meets certain criteria. The defendant must have employed����to obtain a monopoly in a defined relevant market. Second, there may be a dangerous probability that a��defendant will succeed in obtaining a monopoly unless��. While the FTC may appear to be blocking Facebook’s ability to maximize wealth by acquiring Instagram and��WhatsApp, this FTC case may be trying to preserve the competition and economic activity in the social media marketplace. In this particular case, the����and that Facebook controls 60% of the relevant market.����

Antitrust and Monopolies in the Tech Sphere��

Social media may be a broad, general marketplace and thus fail��to meet��one of the criteria under Section 2. Most social networks exist��in a niche, trying to����like Facebook once did, connecting people from around the world and writing on each other’s walls. This unique niche can then become a market on its own, but how exactly are these unique markets dominated by one defendant? Current suggestions focus on����in which case����over��WhatsApp��and Instagram. However, antitrust cases are few in high-tech industries, so FTC’s current complaint is difficult to compare in outcome due to limited jurisprudence.����

Facebook’s rebuttal����

Facebook has requested the FTC’s case be��. Facebook argues that the����with Instagram and��WhatsApp��which may demonstrate a limited factual basis that Facebook��since it acted with FTC’s approval. Further, social media is a rapidly changing market and Facebook still has��including��TikTok, Twitter,��and��Google.��

Conclusion����

People experienced the primary issue with Facebook’s mergers firsthand with the����outage on October 4, 2021. When a monopoly emerges, consumers have less choice and lose out on earnings. Consider the lost advertising revenue with influencers and companies unable to post on��Instagram, or��concerned loved ones who rely on��WhatsApp��to communicate. Perhaps if the app trifecta was separated, the outage would not have affected us at all. However, Facebook is a corporation,��and��corporations aim to maximize wealth.��The FTC once agreed with this when����Facebook’s purchases of����in the first place. It may be hard for the FTC to go back on their word and undo these��-dollar deals.

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Nikita Munjal is the IPilogue Content Manager, an IP Innovation Clinic Fellow, and a third-year JD/MBA Candidate at Osgoode Hall Law School.

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In January 2021, the then-acting president of the United States, Donald Trump, from Facebook for statements he had made in the immediate aftermath of the violent insurrection which took place at Capitol Hill. Trump’s comments were seemingly the last straw for the social media giant who had repeatedly cited its commitment to upholding free speech in defending its stance on Trump’s use of inflammatory language on the platform.

However, Facebook’s decision in January was not final. When accounts are banned or posts are removed from Facebook or its subsidiary, Instagram, users can appeal the decision to the quasi-judicial body, Alternatively, Facebook can refer cases to FOB to determine whether its decision had been fair, as was the case here.

FOB’s Decision

In early May 2021, the that Facebook was justified in suspending Trump’s accounts. However, they stated that it was “not appropriate” for Facebook to impose an indefinite suspension, which contravened Facebook’s standard operating procedure. Facebook’s penalties usually pertain “removing the violating content, imposing a time-bound period of suspension, or permanently disabling the page and account” (at p.1). FOB gave Facebook six months to reexamine its arbitrary penalty and give an appropriate penalty based on the gravity of the violation and the prospects of future harm.

Facebook’s Response

In June 2021, approximately a month after FOB’s decision and within the six-month time period, Facebook : Trump’s suspension from Facebook and Instagram will last for two years, effective from the initial suspension date. However, at the end of the two-year period, Facebook will reassess whether the risk to public safety has receded.

Unsurprisingly, this set of decisions has garnered mixed reactions. Some writers have stated that this is a victory for Trump, who could return to the social media platform in time for a potential 2024 presidential run. Others have argued that this is a victory for Facebook since it could decide whether to continue to the suspension or allow Trump back on its platforms ��based on the political landscape at the time while hiding their rationale behind the risk posed to public safety.

Broader Implications for Free Speech on Social Media

Trump’s social media presence during his presidency exacerbated the discourse around regulation and moderation of content posted on social media. Specifically, questions have arisen as to whether corporations or governments are better positioned to regulate content on social media.

Some industry members including FOB member and former prime minister of Denmark, Helle Thorning-Schmidt, are calling for . These proponents cite its funding, autonomy from Facebook, and diverse membership as reasons for its potential success in regulating the space. However, not everyone agrees with that position. For one, FOB seems powerless in for its role leading up to the insurrection. This is not to suggest that Facebook is the only social media platform grappling with finding an appropriate balance between promoting free speech and preventing harm; however, its role cannot be understated.

Critics argue that FOB’s decisions by focusing too much on corporate oversight. Instead, the focus should be placed on passing legislation that curtails Big Tech’s business models and protects users from their voraciousness.

Currently, the Canadian federal government is preparing to unveil legislation regulating social media content. The legislation to be modeled after Germany’s NetzDG law, which requires social media platforms to remove illegal content under tight deadlines or face severe fines.

warn that following Germany’s precedent could be problematic for two reasons. First, it won’t effectively deal with content that is “lawful but awful”, that is, content that is legal but is known to create real-world harm. Given the Charter of Rights and Freedoms’ broad protections for freedom of expression in Canada, it will be difficult for the government to curb the expression of harmful ideas in public spaces. Second, the legislation could set a bad example for countries that criminalize forms of expression protected under international human rights law. Laws that impose severe penalties on social media companies for failing to remove illegal content under a nation’s laws could increase the criminalization of political dissenters and minority communities. To address these concerns, scholars suggest Canada adopt a multilateral approach by working with other rights-respecting democracies to prevent the internet from “splintering into a series of national networks.”

Ultimately, until the federal government unveils the legislation and holds consultations, it is difficult to predict its effectiveness. However, online content requires regulation, whether that be from corporate entities, governments, or something in between.

The post Facebook Bans Donald Trump for Two Years, but the Discussion on Regulating Free Speech on the Internet is Just Beginning appeared first on IPOsgoode.

On April 3, 2021, Business Insider����that information relating to over 530 million Facebook accounts had been made publicly available online. It is����that 3.49 million accounts belong to Canadians and the leaked data included names, locations, birthdates, email addresses, and other identifying information.��

In response, Facebook issued a����that stated that the information was not leaked through a recent hack, but was the resurgence of data that was taken from the platform in 2019. Facebook claimed that the information was obtained via data scraping, where automated software is used to obtain public information from the internet and distribute it to online forums. The company believes that malicious actors took advantage of the vulnerability in Facebook’s contact importer feature, which is designed to help users easily find and connect with friends through their contact lists. Through exploiting the feature, the malicious actors were able to obtain information from users’ public profiles. Facebook has assured the public that the malicious actors had limited access to users’ information and the leaked data did not include financial information, health information, or passwords.

The news release also stated that Facebook made changes to its contact importer feature in 2019 to address the issue. More specifically, it modified the feature to prevent malicious actors from imitating the Facebook app and uploading a large set of phone numbers to find matching Facebook users. Facebook stated that it will work to get the data set taken down and that it will continue to combat the misuse of its platform’s features.

Written by M. Imtiaz Karamat, Osgoode Alumnus and Student-at-Law at Deeth Williams Wall LLP.

The post Facebook Addresses Resurgence Of Information From 2019 Data Breach appeared first on IPOsgoode.

This data contains personal information specific to each user. Without proper protection, social media companies may mishandle, lose, or leak the data to cybercriminals. Social media companies already widely – and legally – mine customer data for profit-boosting details or sell their information to third parties. To increase protection, governments often develop and enforce stricter regulations.

However, not all countries keep up with consumers’ wants and needs. For example, or protection regulations. Companies in China must obtain consent to interact with their users’ data. However, government officials often block access to sites or monitor how residents use them, raising surveillance concerns. Data privacy rules are further complicated as they vary across platforms.

Social Media Privacy Rules

Registration for any social media site initially requires you to accept their terms and conditions. These conditions detail how the platform will use your data, including your interactions and preferences. Even if your account is “private”, to your information.

No matter how you use social media, you should understand two applicable topics: copyright and how your relationship with a company dictates the way its representatives can collect data. Both of them will likely come up regularly as you learn more about social media privacy — or the lack thereof.

First, copyright is critical for creators and observers. A copyrighted work receives protection once the creator distributes it in a fixed format. For example, posting an original image on social media is enough to . Therefore, users can’t post any picture they find online without permission. Attributing the work is not synonymous with asking the creator for approval.

Most images used legally on the internet fall into several categories:

• Pictures the poster owns and can use how they wish.
• Rights-managed images, which allow people to purchase photos and use them per a specific license. This includes many items offered through the Creative Commons organization.
• Royalty-free images, which enable people to use the pictures in unlimited, multiple and nonexclusive ways.
• Public domain/Creative Commons Zero (CC0) images, which have no restrictions because creators waive their rights under copyright law.

Any original content posted on social media is royalty-free, but social media platforms generally offer users protection against infringement.

Instagram, for instance, provides instructions on on your copyrighted content. This protection means anything you originally create belongs to you, letting you pursue action against any violation of Instagram’s policy. Facebook, the owner of Instagram, has almost identical rules. Twitter may have some exceptions.

It is essential to protect your own data and avoid infringing on others’ original works. However, the second set of rules focuses on your relationship with the platform itself. Historically, data collection has been controversial around the world. Take Facebook, for instance. The big tech company had to clarify after countless scandals emerged. Thus, these instances sparked broader societal discussions about big tech’s growing power and its potential detriment to user privacy.

Personal Data Collection Controversies

Data protection regulation and compliance vary by country. Some territories have federal guidelines in place, like the European Union’s General Data Protection Regulation (GDPR).

The United States has no unifying federal law for cybersecurity compliance. However, the posts its own guidance, alongside each state’s own compliance rules.

Each set of regulations aims to ensure that tech companies protect consumer data and provide users with the correct rights. Unfortunately, despite these laws, data collection controversies continue to arise. Companies find loopholes and use the data in questionable ways. Facebook is notorious for attracting bad press, whether related to misinformation, social justice, or individual rights.

Another example is WhatsApp. After Facebook acquired WhatsApp, the messaging platform updated its conditions to indicate that the platforms would automatically link datasets. Facebook could then use this data for marketing purposes. The EU for violating the law and misleading users.

Facebook again found itself at the center of a data-centric legal case at the end of 2020. This time, the big tech company pursued an action against two smaller companies that it , or taking data from another source for their own use. While Facebook was not the accused, this case again raises the question of big tech’s power and responsibility.

TikTok has also received public and government backlash. After the platform grew exponentially, U.S. officials became wary of due to its Chinese ownership. They were mainly concerned about what TikTok might do with the data it gathered, raising possible national security threats to the United States. However, in September 2020, a deal split TikTok’s ownership between China and the U.S.

Moving forward, countries must re-examine how social media companies use data. Though individuals can take legal action against offending corporations in court, these companies often overpower them, meaning the government must step in. For example, Canada’s Privacy Commissioner can investigate how public and private-sector organizations handle data. They also try to resolve disputes through mediation, negotiation and reconciliation.

Changing Priorities

In the United States, the lack of an overarching federal cybersecurity compliance law has left a legal gap. The California Consumer Privacy Act (CCPA) is a good U.S.-based example that the government should follow. It gives a person the right to access all the information a company has about them or ask that it delete their details. Consumers can also request that companies do not sell their data to third parties or find out which categories of businesses have content about them.

Elsewhere, the GDPR has not effectively maintained these platforms as honest with users about data collection and usage as legislators may have hoped. A 2020 study of central government data protection officers in the United Kingdom found that many of them to deal with the growing number of data protection requests.

Once the GDPR came into effect, internet users were bombarded with cookie preferences windows that let them specify what data companies collected about their internet visit. Many clicked “I accept” without reading the specifics because they were impatient to view the websites in question.

Amidst all the controversies, priorities are changing. People want more security and privacy when using social media services provided by bigger companies. As the U.S. government continues to debate regulations around big tech brands, data collection will continue.

However, data collection can benefits consumers. Social media companies can curate enjoyable, personalized experiences for each user. Issues occur when companies mishandle data or overstep their boundaries. As seen with Facebook, this happens all too frequently.

Since many of the biggest social media companies are U.S.-based, calls for stricter regulation often fall on the United States, in the hopes that consumers will feel more comfortable sharing their data online.

Written by Shannon Flynn, IPilogue Contributor and law technology writer discussing topics such as AI, media, and commercial law.

The post Social Media Privacy: Legalities of Personal Data Collection appeared first on IPOsgoode.

The Background
In late 2017, an by the Australian Consumer and Competition Commission (ACCC) found a where large digital platforms have “substantial market power” in online advertising. The report indicated that digital platforms use outsourced news to gain “consumer attention and consumer data in order to sell advertising opportunities.” In 2020, on the Australian Government’s behest, the ACCC the draft Code for public consultation.

The Code
proposed changes to Australia’s Competition and Consumer Act 2010 provisions which affect digital platforms. The Code requires digital platforms to enter commercial agreements with news companies before sharing their news items online and resolve any impasse through arbitration. Section 52S of the Code requires digital platforms to notify news companies in advance about changes to their news referral algorithm. Non-compliance would invite penalties up to $10 million.

Both sides
The Australian Government wants to balance the traditional news media’s “” with digital platforms and loss of advertising revenue. In 2019, . The Australian Government believes that digital platforms have built their advertising market power by using outsourced news items on their websites.

In response, while Facebook to block its news viewing and sharing service, Google ran a against the draft Code and issued an about “supporting Australian journalism”. Their surround the risk that sharing algorithm changes with the news publishers could allow some entities “to appear higher in rankings… disadvantaging all other creators.” They also complained about possible disproportionate revenue sharing demands from news organizations and claim that the Code is at odds with the principle of “free and open web”, risking freedom of information.

Cutting through the Clutter
As digital platforms speed up the digitization of news content and increase its accessibility, users are increasingly using services like Facebook Newsfeed to access news articles from traditional media companies. While some platforms, like YouTube, offer revenue sharing arrangements with video content creators, articles from news publishers’ websites have no such system. Online platforms use these articles to collect viewership data for targeted advertising. Critics have raised concerns about Facebook and Google monopolizing digital advertising to preferentially promote and advertise their own products and services.

Nevertheless, the Code’s ability to resolve the advertising revenue gap and monopoly of digital platforms remains unclear. ��Advertisers prefer online promotions, especially on big social media platforms, because of their high viewership. The argument that Google and Facebook’s large userbase and consequent online advertisement income is only from sharing news items from other media organizations seems untenable. Both companies attract viewership using various internet-related services, such as social networking, private messaging, personal content sharing, web searches, and cloud storage, which make them desirable for advertising.

The Code is currently silent about calculating the quantum of financial payment to news companies during negotiations. Would they receive a percentage of online advertising revenue or a fixed rate for each click on their articles? Without clear standards for calculating revenue sharing, digital platforms can justify unfair pay structures. If a stalemate goes to arbitration, only then would an arbitrator, under , apply specific criteria: namely, the ways in which digital platforms benefit from making content from news companies available, the reasonable costs which news companies and digital platforms incur, and preventing an undue burden on digital platforms.

Current Status
The Australian Parliament tabled the in December 2020 and, after both Houses considered the Bill, Parliament passed it on February 25, 2021. Facebook, in protest, its news sharing services. Facebook later restored its news pages upon reaching an with the Australian Government that included giving digital platforms two months to negotiate a deal with news companies before triggering mandatory arbitration.

Ripples in other countries, including Canada
Digital platforms are anxious about other countries introducing similar regulations. Facebook already ��pays licensing fees to news outlets in the and recently agreed to do the same in the . The report remarks that “the digital duopolies’ [read Facebook and Google] combined share of the online advertising market reached 80%.” Steven Guilbeault, , recently opined that Canada should introduce similar regulations. Facebook responded sharply, with its Canada Public Policy Head, , saying “…we’re unable to accommodate” such payments.

Looking Forward
Undoubtedly, digital platforms imminently need to maintain fair competition, advertisement verification, unbiased news feed algorithms, journalistic support and independence, and equal online advertising opportunities. While digital platforms should not monopolize internet freedom and access to information, or avoid paying news creators their fair share, they need clear revenue-sharing and anti-competition standards. No government can correct the disquietude on Facebook and Google’s rising monopoly or strong market control by forcing commercial, revenue-sharing deals with news outlets. Counterintuitively, increased regulation, such as this Code, would create entry barriers for nascent digital news-sharing platforms who might lack the fiscal bandwidth to enter commercial arrangements with large news publishers. Governments should also focus on promoting competition by supporting agile, smaller digital service providers and social media companies.

Gurbir Sidhu is an IPilogue Contributing Editor and LLM candidate at Osgoode Professional Development.

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What is the Facebook Oversight Board?

Since at least early 2018, when the scandal, Facebook has faced heavy criticism for the way the social media empire operates. Founder and CEO Mark Zuckerberg before Capitol Hill and released a statement promising to “.” The FOB seems to be the endeavor in fulfilling that promise.

A quick scan of the FOB’s makes it clear the FOB’s framework emulates a quasi-judicial system. For instance, the board is independently funded to ensure its autonomy from Facebook. Further, the board’s decisions are binding upon Facebook unless the decisions could violate the law.

The current board is comprised of an impressive 20 members, including law professors, the former Prime Minister of Denmark, and a Nobel Peace Prize Laureate. Some of the , like Professor , have historically Facebook’s methodology. The appointment of renowned critics, combined with fixed terms for board members, lends credence to Facebook’s assertions of the board’s autonomy.

Yet, people are that the FOB will have any lasting impact. One of the reasons for the skepticism is that the members of the board are . Realistically, for a platform like Facebook, which has more than one billion users worldwide, it’s highly unlikely to have a board that reflects all its users’ needs. That does not excuse the lack of representation for LGTBQ+ advocates or people from certain regions – such as the Middle East, North Africa, and Southeast Asia. The lack of diversity highlights the more significant underlying problem Facebook and the board face, finding the line between freedom of expression and hate speech for people with vastly differing values. ��

Freedom of expression, at whose expense?

Facebook’s unwillingness to moderate or censor what content is available to its users has had severe offline consequences. By championing “free expression,” Facebook allowed the spread of hate speech against and and and division in the United States.

The FOB will begin hearing cases later this year. They will listen to appeals of cases where Facebook or Instagram, owned by Facebook, reviewed and removed content reported as offensive. In the meantime, harmful information is still disseminating on Facebook’s platform without much censure. Even those within the company are displeased with the company’s and .

Critics of the company had repeatedly stated that real changes necessitated a threat to the company’s bottom line. Indeed, once companies such as , , , and announced they would be pulling advertisements from Facebook to combat the amount of hate speech online, Mark Zuckerberg quickly announced changes to the company policy. Under the new policy, “Facebook will ban ads that target people from a specific race, ethnicity, nationality, caste, gender, sexual orientation or immigration origin are a threat to the health or safety of anyone .”

This policy was quite the turn-around from earlier in the summer when Facebook was adamant it its current policy on free speech. Ultimately, we will have to wait until the FOB releases its first set of decisions, and until we see Facebook’s response to these decisions, to determine what values will be upheld in the name of free expression. As one of the leaders in technology, the precedent Facebook sets with the FOB could have lasting implications on how technology companies operate and are regulated.

Written by Nikita Munjal. Nikita is an IPilogue Editor, Clinic Fellow with the Innovation Clinic, and a JD/MBA Candidate at Osgoode Hall Law School.

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