Blocking the Trump Social Media Account and Competition Law

Adv. Ofer Argov examines the issues surrounding the blocking of Donald Trump’s account on Facebook.

It was recently reported that Donald Trump is trying to stir up Facebook’s supervisory board, which will soon decide whether to allow the former President to re-activate his Facebook account.

As you may recall, after the raid by Trump supporters on the Capitol, a number of social networks – including Facebook – announced the suspension of Trump’s account.

Facebook’s actions over Trump are uncomfortable and don’t sit well: a unilateral decision by one person (Mark Zuckerberg) has denied the former U.S. President the possibility of using an important platform to spread his messages.

Is there a justification for allowing an account to be blocked, because of the content uploaded to it? Shall we block the account of a person who lied? Of a person who incited? Who is to decide if this was indeed a lie? Should an “ordinary” person and a political leader be treated differently? Who is to set the rules of what is forbidden and what is allowed: the owners of the social network, or the public through the legislature?

These are all questions that go to the core of the values of a democratic society.

This brings us to competition law, which may provide insights and perhaps solutions to the conduct of social networks in these matters.

Competition law imposes prohibitions on anyone who has a monopoly, so as not to exploit their dominant position in a way that could harm competition or the public. For example, a monopoly is prohibited from refusing an unreasonable refusal to supply their products. Also, the DG of the Competition Authority is authorized to instruct a monopoly if the DG sees that because of monopoly conduct the public has been harmed.

According to Israeli competition law, a monopolist is one who holds a market share of more than 50% in the relevant market or holds significant market power.

Facebook, for example, has about 3 billion users worldwide, and a market share of over 60% in the United States. In Israel, Facebook has 6 million users, about 75% of the population.

The apparent conclusion is that Facebook has a monopoly in the market of individual social networking services in both the United States and Israel.

Competition law can provide initial answers to some of the questions we have raised. For example, blocking a Facebook account can be considered an unreasonable refusal to provide the product in the monopoly. It seems there is no obligation on a monopolist to allow a person to use their social network if that person preaches violence. It is less clear, however, whether a permanent ban on account can be considered reasonable. Is it right to force a social network owner to ban a user account, even if network owner is interested in maintaining that account due to the economic value it generates for the network, but still harms the public?

These are examples of a discussion that should have taken place in Israel as well. In the absence of such a discussion, these events take place with no clear regulation to guide them.

Facebook, for example, does have rules about banned content, but it was alleged that these rules were not transparent enough. These rules, which could have a dramatic impact on the public, were set by Facebook itself and their enforcement sometimes appeared inconsistent. Facebook’s approach was against interference with political content, against blocking fake posts and against preventing political leaders from using Facebook.

One may wonder whether this approach stemmed from noble conceptions of political freedom of expression, or whether from the economic motives of Facebook. Blocking the Trump account is a sharp change.

Is it desirable that a monopoly could deny  at the push of a button, a political leader using a social network that is an “essential facility” for spreading their messages? Even those who believe that Trump is a bad hit should ask themselves if they would accept such conduct toward another, less controversial leader.

The general sense of relief from banning Trump’s account may prove to be a mistake: a “license” to prevent freedom of expression, according to the occasional discretion of a social network.

Therefore, clear and transparent rules are necessary, which are not “material in the hands of the creator” in the hands of a monopolist.

A few countries around the world have taken steps to regulate the rules of this new ball game. Unfortunately, Israel is still delaying, even though the election campaigns that take place here every few months indicate the problematic nature of a situation where there are no clear rules of the game for using social networks during such times.

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