Caribbean needs to tell big tech wild west days are overSunday, September 12, 2021
Early enthusiasts of the Internet believed that the Internet should be a wild west without any laws or rules. Since those early days, big tech companies like Facebook, Google and YouTube came to dominate the Internet, making hundreds of billions of dollars in revenues every year.
For years these companies also argued that they should not be required to follow any local laws. However, the growing list of scandals and abuses by the big tech platforms and mounting evidence of crushing small competitors and the spread of hate speech, disinformation, and conspiracy theories by them have led many countries to introduce laws and regulations to protect society.
The Caribbean needs rules to protect against online harms also. The Cambridge Analytica scandal revealed that Facebook data was used to influence democratic elections in the region and the Caribbean has witnessed an explosion in hate speech, ISIS terrorist content, anti-vax conspiracy theories and other harmful and illegal content spread and amplified by big tech platforms.
There are examples of new laws in the EU, the UK and other countries that the Caribbean can now look to but a key problem for the Caribbean is scale. While the EU and UK have large resources the individual countries of the Caribbean are much smaller.
We also have different rules and regulations in each country, and countries with relatively small regulatory bodies with limited resources. This approach has served the region well but is totally inadequate for the global digital economy which has accelerated rapidly since the start of the novel coronavirus pandemic and is rapidly becoming the economy.
Without a different approach in this region every service imaginable, from food and grocery delivery, to medical consultations, to media, to communications, to transport and tourism will be provided by big tech platforms. There will be no local companies left to regulate.
Big tech might ignore the laws of individual Caribbean countries but they cannot ignore the region if it acts together. Sharing resources is also important so that regulators have the scale required to ensure that big tech giants follow local rules.
A harmonised approach across the Caribbean is needed and the development of a Caribbean single ICT space where the same rules apply in every Caribbean country is now very pressing. This can be achieved at a Caribbean level by agreeing a set of principles based on best international practice. Caribbean nations could then apply these principles in their local laws.
Looking at the laws in other jurisdictions, there are seven important principles that the Caribbean can include in its legal framework.
First, amend local ICT law to require the local registration of big tech platforms above a certain threshold. South Korea introduced such an obligation in late 2020 for platforms including Google and Facebook which requires them to appoint a local representative for user complaints and to respond to regulatory inquiries.
Second, make provisions of ICT law mandatory for big tech platforms. For example, a duty to cooperate with the police and a duty to file accounts with the regulator and details of traffic usage annually (as happened in South Korea).
Third, make it easier to request the identity of anonymous posters of hate speech and defamatory statements from big tech by providing for straightforward orders from local courts which big tech platforms must comply with.
Fourth, competition law has emerged as a key tool in tackling market abuses and enable regulators to act to protect local consumers and entrepreneurs. The Caribbean needs to equip itself with a modern competition law framework. While Jamaica and Barbados have modern competition laws, other countries should include competition law provisions in their ICT laws that apply to all providers of digital services regardless of their location. Legislation should also provide a role for the Caricom Competition Commission where resources can be focused to support regulators across the region.
Fifth, mandate that digital services to consumers are subject to local law (ie platforms cannot avoid the law by stating that their services are subject to the law of California).
Sixth, there needs to be a clear requirement that illegal content such as terrorist content or child abuse images must be removed within a given time frame. A schedule of other harmful material that is prohibited could be agreed regionally and published by ministers. Big tech should be subject to a duty to report illegal content to regulators and provide an annual 'Transparency report' obligation setting out how they have dealt with complaints, illegal and harmful content.
Seventh, introduce credible, uniform penalties for non-compliance: eg fines of up to 10 per cent of regional turnover plus daily fines for non-compliance, with the possibility of courts applying blocking orders in cases of non-compliance.
The Caribbean ICT space cannot be a free for all that allows big tech companies to experiment on Caribbean consumers. The answer is to create a true Caribbean Single ICT Space with laws that apply in every Caribbean country that big tech must follow similar to the rules now in place in other jurisdictions. The region needs to send a clear message to the big tech platforms that the wild west days are over and that the Caribbean has the laws and rules needed to protect its people.
— David Geary is general counsel at Digicel.
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