On Friday, the Wall Street Journal published information from Facebook whistleblowers, alleging Facebook (which is owned by Meta) deliberately caused havoc in Australia last year to influence the News Media Bargaining Code before it was passed as law.
Author
Rob Nicholls
Associate professor in regulation and governance, UNSW Sydney
During Facebook's news blackout in February 2021, thousands of non-news pages were also blocked - including important emergency, health, charity and government pages.
Meta has continued to argue the takedown of not-for-profit and government pages was a technical error. It remains to be seen whether the whistleblower revelations will lead to Facebook being taken to court.
The effects of Facebook's "error"
The News Media Bargaining Code was first published in July 2020, with a goal to have Facebook and Google pay Australian news publishers for the content they provide to the platforms.
It was passed by the House of Representatives (Australia's lower house) on February 17 2021. That same day, Facebook retaliated by issuing a statement saying it would remove access to news media business pages on its platform - a threat it had first made in August 2020.
It was arguably a reasonable threat of capital strike by a foreign direct investor, in respect to new regulation it regarded as "harmful" - and which it believed fundamentally "misunderstands the relationship between [its] platform and publishers who use it to share news content".
However, the range of pages blocked was extensive.
Facebook has a label called the "News Page Index" which can be applied to its pages. News media pages, such as those of the ABC and SBS, are included in the index. All Australian pages on this index were taken down during Facebook's news blackout.
But Facebook also blocked access to other pages, such as the page of the satirical website The Betoota Advocate. The broadness of Facebook's approach was also evidenced by the blocking of its own corporate page.
The most major harm, however, came from blocks to not-for-profit pages, including cancer charities, the Bureau of Meteorology and a variety of state health department pages - at a time when they were delivering crucial information about COVID-19 and vaccines.
Whistleblowers emerge
The whistleblower material published by the Wall Street Journal, which was also filed to the US Department of Justice and the Australian Competition and Consumer Commission (ACCC), includes several email chains that show Facebook decided to implement its blocking threat through a broad strategy.
The argument for its broad approach was based on an anti-avoidance clause in the News Media Bargaining Code. The effect of the clause was to ensure Facebook didn't attempt to avoid the rules of the code by simply substituting Australian news with international news for Australian users. In other words, it would have to be all or nothing.
As a consequence, Facebook did not use its News Page Index. It instead classified a domain as "news" if "60% [or] more of a domain's content shared on Facebook is classified as news". One product manager wrote:
Hey everyone - the [proposed Australian law] we are responding to is extremely broad, so guidance from the policy and legal team has been to be over-inclusive and refine as we get more information.
The blocking approach was algorithmic and based on these rules. There were some exceptions, that included not blocking ".gov" - but no such exclusion for ".gov.au". The effect of this was the taking down of many charity and government pages.
The whistleblower material makes it clear a number of Facebook employees offered solutions to the perceived overreach. This included one employee proposal that Facebook should "proactively find all the affected pages and restore them". However, the documents show these calls were ignored.
According to the Wall Street Journal:
The whistleblower documents show Facebook did attempt to exclude government and education pages. But people familiar with Facebook's response said some of these lists malfunctioned at rollout, while other whitelists didn't cover enough pages to avoid widespread improper blocking.
Amendments following the blackout
Following Facebook's news blackout, there were last-minute amendments to the draft legislation before it was passed through the Senate.
The main change was that the News Media Bargaining Code would only apply to Facebook if deals were not struck with a range of key news businesses (which so far has not included SBS or The Conversation).
It's not clear whether the amendment was as a result of Facebook's actions, or if it would have been introduced in the Senate anyway. In either case, Facebook said it was "satisfied" with the outcome, and ended its news blackout.
Facebook denies the accusations
The definitions of "core news content" and "news source" in the News Media Bargaining Code were reasonably narrow. So Facebook's decision to block pages so broadly seems problematic - especially from the perspective of reputational risk.
But as soon as that risk crystallised, Facebook denied intent to cause any harm. A Meta spokesperson said the removal of non-news pages was a "mistake" and "any suggestion to the contrary is categorically and obviously false". Referring to the whistleblower documents, the spokesperson said:
The documents in question clearly show that we intended to exempt Australian government pages from restrictions in an effort to minimise the impact of this misguided and harmful legislation. When we were unable to do so as intended due to a technical error, we apologised and worked to correct it.
Possible legal action
In the immediate aftermath of Facebook's broad news takedown, former ACCC chair Allan Fels suggested there could be a series of class actions against Facebook.
His basis was that Facebook's action was unconscionable under the Australian Consumer Law. We have not seen these actions taken.
It's not clear whether the whistleblower material changes the likelihood of legal action against Facebook. If legal action is taken, it's more likely to be a civil case taken by an organisation that has been harmed, rather than a criminal case.
On the other hand, one reading of the material is Facebook did indeed overreach out of caution, and then reduced the scope of its blocking over a short period.
Facebook suffered reputational harm as a result of its actions and apologised. However, if it engaged in similar actions in other countries, the balance between its actions being a stuff up, versus conspiracy, changes.
The Wall Street Journal described Facebook's approach as an "overly broad and sloppy process". Such a process isn't good practice, but done once, it's unlikely to be criminal. On the other hand, repeating it would create a completely different set of potential liabilities and causes of action.
Disclosure: Facebook has refused to negotiate a deal with The Conversation under the News Media Bargaining Code. In response, The Conversation has called for Facebook to be "designated" by the Treasurer under the Code. This means Facebook would be forced to pay for content published by The Conversation on its platform.
Rob Nicholls is a member of the UNSW Allens Hub for Technology, Law and Innovation from which he receives research funding. He is also the faculty lead for the UNSW Institute for Cyber Security (IFCYBER), which provides support. UNSW has received an untied gift from Facebook, which is used to fund some of Rob's research.
