On Friday, the Wall Street Journal published information from Facebook whistleblowers alleging that Facebook (which is owned by Meta) deliberately wreaked havoc in Australia last year. to influence the news media negotiation code before it was passed into law.
During the Facebook news outage in February 2021, thousands of non-news pages were also blocked, including major emergency, health, charity and government pages.
Meta continued to claim that removing non-profit and government pages was a technical error. It remains to be seen whether the whistleblower’s revelations will lead to Facebook being sued.
The consequences of Facebook’s “mistake”
The News Media Negotiation Code was first published in July 2020, with the aim of making Facebook and Google pay Australian news publishers for the content they deliver to the platforms.
It was passed by the House of Representatives (Australia’s House of Commons) on February 17, 2021. That same day, Facebook retaliated by a statement said it would remove access to company news media pages on its platform — a threat it first raised in August 2020.
It was arguably a reasonable threat of capital foreclosure by a foreign direct investor, in relation to new regulations it deemed “harmful” – and which it believed fundamentally “affected the relationship between [its] platform and publishers using it to share news content”.
However, the number of blocked pages was high.
Facebook has a label called the “News Page Index”, which can be applied to its pages. News media pages, such as those of ABC and SBS, are included in the index. All Australian pages on this index were removed during the Facebook news outage.
But Facebook also blocked access to other pages, such as the satirical website’s page The Betoeta Lawyer† The breadth of Facebook’s approach was also apparent from blocking its own company page.
The greatest damageHowever, from blocs to nonprofit pages, including cancer charities, the Bureau of Meteorology, and a variety of pages from the state’s health department — at a time when they were providing crucial information about COVID-19 and vaccines.
Very disturbing to discover this morning that @StVincentsMelb‘s Facebook page has been blocked – this amid a pandemic and on the eve of the pivotal distribution of COVID vaccines. We hope that this situation can be remedied very soon.
— St. Vincent’s Health (@StVHealthAust) February 17, 2021
The whistleblower material published by the Wall Street Journal, which has also been filed with the U.S. Department of Justice and the Australian Competition and Consumer Commission (ACCC), contains several email chains showing that Facebook resolved its blocking threat through a broad strategy.
The argument for the broad approach was based on an anti-circumvention clause in the News Media Bargaining Code. The effect of the clause was to ensure that Facebook did not attempt to circumvent the rules of the code by simply replacing Australian news with international news by Australian users. In other words, it should be all or nothing.
As a result, Facebook has not used its news page index. Instead, it classified a domain as “news” as “60% [or] more of a domain’s content shared on Facebook is classified as news”. A product manager wrote:
hello everyone – de [proposed Australian law] what we respond to is extremely broad, so the guidance from the policy and legal team has been to be comprehensive and refine as we get more information.
The blocking approach was algorithmic and based on these rules. There were some exceptions, including not blocking “.gov” – but no such exclusion for “.gov.au”. The effect of this was the removal of many charity and government pages.
The whistleblower material makes it clear that a number of Facebook employees offered solutions for the perceived overrun. This included a proposal from an employee that Facebook should “proactively find and restore all affected pages”. However, the documents show that these calls were ignored.
According to the Wall Street Journal:
The whistleblower documents show that Facebook has tried to exclude government and education pages. But people familiar with Facebook’s response said some of these lists didn’t work well with the rollout, while others don’t span enough pages to prevent widespread inappropriate blocking.
Changes after the blackout
Following the Facebook blackout, there were last minute changes to the draft legislation before it was passed by the Senate.
The most significant change was that the News Media Bargaining Code would only apply to Facebook if deals were not made with a range of major news companies (including SBS or The conversation†
It’s not clear whether the change was a result of Facebook’s actions, or if it would have been introduced in the Senate anyway. In both cases, Facebook said it “satisfied” with the outcome, and ended the news blackout.
Facebook denies claims
The definitions of “core news content” and “news source” in the News Media Bargaining Code were fairly limited. So Facebook’s decision to block Pages so broadly seems problematic, especially from a reputation risk perspective.
But once that risk crystallized, Facebook denied any intent to harm. A Meta spokesperson said the removal of non-news pages was a “mistake” and “any suggestion to the contrary is categorically and clearly 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 minimize the impact of this misleading and harmful legislation. When due to a technical error we were unable to do this as intended, we apologized and worked to correct it.
Possible legal action
In the immediate aftermath of Facebook’s widespread removal of news, former ACCC chairman Allan Fels . said suggested there could be a series of class actions against Facebook.
Its basis was that Facebook’s action was unscrupulous under the Australian consumer law† We have not seen these actions.
It’s not clear whether the whistleblower material changes the likelihood of legal action against Facebook. If legal action is taken, it is more likely to be a civil case brought by an organization that has suffered damage than a criminal case.
On the other hand, one reading of the material is that Facebook did indeed put in too much out of prudence and then reduced the scope of the block in a short period of time.
Facebook has suffered reputational damage as a result of its actions and has apologized. However, when it carried out similar actions in other countries, the balance between its actions changes as mess, versus conspiracy.
The Wall Street Journal described Facebook’s approach as a “too broad and sloppy process”. Such a process is not a good practice, but once it is done it is unlikely to be criminal. On the other hand, repeating it would create a completely different set of potential liabilities and causes of action.