📧 The reproaches addressed by the White House to Facebook in August 2021 about disinformation are a means of helping it to carry out its Compliance obligations

An August 10, 2021 New York Times article chronicles the relationship presented as "tumultuous" between President Biden and Facebook, the president, in person or through his closest administration, blaming Mark Zuckerberg, in person or through his closest collaborators, for the Facebook insufficient action against vaccine misinformation: ➡️📝Inside the White House Facebook Rift Over Vaccine Misinformation. 

The article insists on the opposition between the two entities: " Frustrations grew behind the scenes among top leaders on both sides, potentially hurting the government's efforts to overcome the pandemic ".

And reports many facts for this conclusion.

But is it not possible to propose  another reading of these events?

A reading that would be more strategic and more optimistic with regard to what is the obligation of digital operators obliged by Compliance Law.

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In fact, if we come back to the subject itself, it is a question of fighting against disinformation, including that which is raging about vaccination against Covid (the causes of the spread of the virus, its modes of spread and the effects of different vaccines, in particular) is just one example.

To stem the health crisis, public policies for economic issues do not encounter the same major difficulty as public policies for health care: disinformation.

On this major question, see the presentation of the May 2021 colloquium organized by the Journal of Regulation & Compliance (JoRC) and the Faculty of Law of Montpellier on ➡️📅 Public Norms and Compliance in time of Crisis: Monumental Goals put a test, the work being the basis of contributions in the book ➡️📘 Compliance Monumental Goals. 

Faced with the spread of disinformation, especially during a health crisis, not only the jurisdictional Ex Post, certainly legitimate to sanction disinformation, is not enough in such a fight but the administrative action is not enough either. because the digital space has for characteristic not so much the novelty of these manipulations (which do not differ from the preceding methods) but their speed of propagation  and their dissemination which until now had never reached such dazzling and such dust.

Faced with this, only a mechanism which entrusts, willingly or by force (the " free will" referring to the points of contact between Compliance Law and Corporate Social Responsibility, the "force" referring to the repression strongly present in the Compliance Law) to companies in a position to do something (what the banking sector referred to as "systemic firms" and which can be qualified more generally as "crucial companies" (➡️📝 Frisian- Roche, M.-A., "Proposition for a notion: the "Crucial Operator", 2006), the function of blocking or even destroying the crucible of disinformation is concretely possible (➡️📓 Frison-Roche, M.- A., The contribution of Compliance Law in the Governance of Interne, 2019).

But many protest before such a mission which, under the pretext of "necessity" and under the guise of "weight" given to these companies, also gives them considerable powers over people: thus many have criticized the closure of Donald Trump's account as being an illegitimate political act and many saw the May 5, 2021 Facebook Oversight Board decision as an intolerable takeover of power, with the company allowing itself to become a complete legal system on its own : for one analysis of this very important decision, and commented on, often in a severe manner, but for a more approving approach because in the perspective of Compliance Law, the internalisation of repressive and jurisdictional functions is more of a principle: ➡️📧 " By its decision of May 5, 2021, the Oversight Board imposed a Compliance program on Facebook, May 2021; for a perspective that remains critical ➡️📝Heymann, J.," The Legal Nature of the "Supreme Court" of Facebook ", in➡️📘 Compliance Jurisdictionalisation, 2022).

These criticisms are on several levels; they can be summarized as follows:

• a company maintaining a platform on which contents may be published by anyone and controlling these contents would exercise "censorship", which would be unacceptable with regard to the freedom of speech;
• a company controlling the contents carries out an activity of judgment, while only a judge or at least a public authority could do it, therefore it would be unacceptable;
• a company controlling contents would exercise control over what is socially admissible, which would be a political activity, and a company is not politically legitimate to govern us.

These arguments are solid, especially from a judicial perspective.

Even if it is possible to articulate the fight against the disinformation which rages thanks to the digital novelty (), and the constitutional freedom of expression (Minow, M., "How the government can support a free press and cut disinformation ", 2021), the risk of a weakening by courts, whether American or other, for example in France where judges have criticized the companies powers, even in China where it is in the name of privacy that the new control on the technological sector is taking place ....

If the federal government of the United States, because it wants to carry out its public health policy and has little influence on the policies of the states, some of which are hostile to vaccination or believe that all of this is there Everyone's business, wants Facebook to exercise its power to deactivate the accounts of those who practice disinformation, especially in vaccine matters, or even exercise it in political matters (Timothy Snyder having shown that the practice of disinformation in the matter put endangering the American political system itself: ➡️📧 "Listening to Timothy Snyder: the United States like Europe defend democracy, but Europe uses Compliance Law more for that", June 2021), then it is necessary but enough that the Government accuses Facebook of "killing people" by not doing it.

So, the Government allows the company to do it.

This is what President Biden has just done.

This is to be compared with the position taken in May 2021 by the US federal administration allowing companies to require employees to both return to work on sites and be vaccinated. This was already a sign that it is indeed the federal administration which, in order to make its public vaccination policy "effective", relies on companies, with the necessary powers for them to play their role:  see the analysis of this communication from the US Equal Employment Opportunity Commission (EEOC) of May 28, 2021 ➡️📧 "In Compliance Law, the political authority must clearly tell the company the extent of its power; fault from which the company will pass from the status of executor to that of Legislator ", June 2021.

It is therefore not an "opposition" but a strategic alliance.

Moreover, Facebook has just deactivated a series of accounts which systematically practice disinformation in matters of vaccination.

The fact that the President of the United States characterized their inaction as "murder" makes it much easier for them when their action will be challenged in court. Because in front of a judge vis-a-vis whom it will be reproached for violating, by its too offensive action, the freedoms of the people the company will be able to take advantage of the fact that it was made accused of "murder" for not having had enough offensive action, and this by the Head of State.

We are legally close to the hypothesis of "the order given by the legitimate authority".

This reinforces an opinion expressed in March 2020 according to which Facebook, when it refers people to public information centers for the fight against the virus, is not acting either as a publisher or as part of its social responsibility but executes purely and simply its obligations arising from Compliance Law: ➡️📝Frison-Roche, M.-A., "Facebook, Facebook, le coronavirus et la Compliance", March 2020.

In addition, as in any Compliance Law mechanism, such execution of their Compliance obligation by Facebook and all others who follow the exchanges between the crucial digital company and the Federal Executive, is supervised by the Regulatory Authorities, administrative authorities before which the operator can be prosecuted for failure, for example for not only for having done too much but also for having not done enough.

This is particularly true in France, where the Conseil Supérieur de l'Audiovisuel - CSA French Superior Audiovisual Council) supervises digital operators in their obligations to limit the spread of infox, specifically questioning operators on the due diligence carried out and the results obtained, a specific annual report being published each year (see the report published on July 30, 2020 on the "application and effectiveness" of the fight against disinformation to be carried out by the platforms, in its English version).

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