An appeals process for online giants

Private entities should not be heavily regulated and we should rely on competition to kick out anyone that doesn’t treat their customers right.

However, competition doesn’t always work — there are monopolies, oligopolies and cartels where you can’t rely on competition to fix the behaviour of businesses.

And such is the case with online giants like Facebook and Google. Their market dominance makes them almost immune to competition and the network effect (especially for facebook) doesn’t allow you to just leave and switch providers if you are unhappy.

When you want something done by the government, but it refuses, or does it incorrectly, you can appeal. There’s an official appeals process that can ultimately go to the court system for resolution.

I think we need a regulated appeals procedure for online giants, especially where peoples’ rights are concerned and where competition isn’t a good enough motivation. Let me give a few examples.

Facebook bans people for periods ranging from a few days to a month. The bans are allegedly for posting content that infringes the facebook policies. However, especially recently, journalists and opposition figures have been banned in many countries due to an organized reporting effort — if you want someone to be shut down from using facebook, just report their content repeatedly and facebook will ban them. It can be anything, or it can be some mild offense — like using rude slang words, or posting caricatures with sexual innuendo — things perfectly normal in a mature society, but ones that can be used as a reason for reporting. Recently in my country there were numerous journalists and bloggers that were banned for no apparent reason, some for 30 days.

And no, facebook isn’t just “an online service”. It’s THE medium for expressing your personal view, so I would equate a ban there with limiting the freedom of speech —one shouldn’t be able to get someone’s personal profile closed because of their opinions.

Another example is Google’s YouTube. If you upload content, it can get removed (allegedly based on copyright claims), even if it constitutes fair use (according to copyright legislation). A striking recent example is a two-hour video of an official government conference on open data being taken down because a deputy minister plays a 30-second excerpt from a movie on his laptop during the conference. Sounds absurd, but the uploader of the video is still struggling to get it back online.

Another example is banks and payment giants that can ban new businesses from operating. This may seem slightly offtopic, but not only banks close the accounts of cryptocurrency exchanges (with no legal grounds), but also two of the big payment providers barred my startup from getting payments, because they did not understand what it is about. No matter how much I tried to explain to them that it is not actually what they think it is, both Braintree and 2Checkout were adamant and denied the service. And while you may think there’s plenty of competition in that area, if you are not in a western country, your choices are limited.

We can’t rely on algorithms or the “best efforts” of incompetent people for important things like freedom of expression, the ability to share knowledge or (less importantly) the ability to start an online business. We can’t have unaccountable online giants.

On the other hand we can’t go “the socialist way” and either privatize or impose too strict regulations on how businesses operate, because bureaucracy is always inferior to technological innovation.

That’s why I would propose to have an unified appeals process that some businesses should be following. Not all businesses, of course — only those that have a significant impact on public life, defined both by their market share (over a certain percent) and by their domain.

How would this appeals process look like? It has to be transparent and predictable. It should have deadlines and multiple stages of appealing. First stage — the company, second stage — some form of alternative dispute resolution, and final stage — an administrative court. The fees would normally be covered by the losing side.

The goal is for most appeals to be handled by the company itself, but it should have to answer in a predefined time, should give an adequate answer. If it fails to comply with the procedure, it can be fined by a customer protection body (not necessarily in the country of origin of the user, because it might be hostile to them).

Sounds like a lot of bureaucracy, but it isn’t. It literally means that the giants should have some decency when dealing with people. For example if you get banned from Facebook for allegedly breaching the terms of use, Facebook must cite which term was broken by which post exactly. Then if that has been wrongly flagged, you have the right to appeal within two days of seeing the ban. The company should assign a person to review it and handle it within a certain period of time (depending on the duration of the ban). In most cases that would mean the ban will be undone in no time, as a human will clearly see that there is no reason for the ban. If the employee confirms the ban, then the user can appeal to one of several arbiters, but if they are proven wrong, they have to pay the arbitration fees. Same goes for the administrative courts, where the fees can be even higher.

Won’t that make it too expensive for companies? First, it will only apply to a few — apart from Facebook and twitter, I don’t think any other social network has such a significant market share to be considered impactful on the freedom of speech. If a hosting company deletes your blog, you can just go to another one. But you can’t go to another facebook. As there is none.

Second, it would mean more effort is spent on detecting reporting campaigns. If suddenly a hundred people report a photo of yours from 3 years ago, then a few red flags should be there for the algorithm that decides to ban you. Ideally, such an official appeals process should be a nudge for big online companies to handle their users more responsibly, as they may be limiting their fundamental rights. Limiting “false positives” should not be such a hard task, especially for companies that claim to be doing self-driving cars. And sometimes guaranteeing the freedom of expression (and freedom of enterprise) is more important than a new cool gadget.

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