We have all seen them - the cookie banners that jump in our faces asking us to consent to the use of cookies the moment we visit a website. Oftentimes manipulative design choices (called dark patterns) attempt to nudge us into selecting the least privacy-friendly option. Or worse, they do not even give us a choice but just kindly inform us that by using the website we are ‘consenting’ to its privacy policy.
We are faced with a similar situation when signing up for almost any digital platform. Upon creating an account we are required to consent to the company’s terms of service, a multipage document in legalese language that details the acceptable use of the platform, all the rights that the company has against you and oftentimes it includes a clause that reserves the right to terminate the service at any time for any reason.
Supposed consent is omnipresent on the internet, and what we consent to are nothing less than the rules that govern our digital lives. However, unlike the rules that govern our real lives, they were not designed by the state through a legislative process but by companies that have one primary motivation - protecting their business interests. Assuming you live in a democracy your vote grants you a say in what rules should govern your life. But online we are presented with a binary choice: either you’re in or you’re out. If you do not like the policies of a certain platform feel free not to use it.
At least that is how digital platforms like to portray it. But is it really this easy? First of all, there is the question of whether consent is really ‘informed’ when terms and conditions or privacy policies are intentionally written in a way intelligible to most people without a legal background.
There is another - arguably bigger - issue. Saying that users are free not to use the service if they do not like its policies neglect the enormous social pressure on people to be on the same networks as their friends, families and coworkers. Students may struggle to stay informed about events when they do not join Facebook, teenagers may feel socially isolated if they cannot connect with their friends on Instagram and people may feel disconnected from their family if they do not use WhatsApp.
Even if there is an alternative service, the so-called ‘network effect’ makes it impractical to switch to that platform because the value of a social network is greater the more people are on it, giving the established tech giants an innate advantage. All this means that big tech companies are free to dictate the terms on which they provide access to their platforms and the social cost of rejecting these terms keeps rising as more and more parts of our lives moves online.
Instinctively, this sounds like a pretty unfair practice. You may even call it an abuse of market monopoly. But competition law which was developed to guard consumers against the negative consequences of monopolies has been slow to get a grasp on the problem. That is because it was traditionally only called upon when concentrated market power led to increased prices for consumers or suppressed innovation. Most digital platforms however are free of monetary cost so companies reject antitrust allegations by pointing out that users are not harmed since they can continue to use a free product.
Similarly, the vast amounts of data gathered from a large user base allow these companies to be amongst the most innovative in the data-driven economy. Only slowly are competition authorities turning their attention towards other negative externalities of monopolies in the digital sphere such as unfair terms and conditions or privacy policies.
So what are our options moving forward? One proposal is offering users the option to pay a small amount of money in regular intervals in return for more user-friendly terms of service. This works particularly well with regards to targeted advertising. Many newspapers already offer an ad and tracking free experience in return for a monthly contribution. However, users usually have to pay significantly more than their data is worth.
The solution also still leaves us with a binary choice between ‘nice terms BUT payment’ or ‘bad terms BUT free’ and does not grant any real involvement in negotiating the rules that govern the internet. Moreover, fair or even just reasonable terms of service would become a privilege for those that can afford this luxury. Many are not in a position to expand monthly contributions to the various digital platforms that we use day-in-day-out.
In wake of this, a lot of hopes amongst academics and lawmakers rest on a concept called ‘interoperability’. In informatics, this refers to a system’s ability to work with other systems to exchange information without restriction. While the details of it are quite technical, this practice essentially allows users of different platforms a similar purpose to communicate with each other without having to use the other’s platform. We already take this for granted with regards to SMS where we are able to seamlessly communicate with people even though they have a phone by a different manufacturer or service provider.
But how convenient would it be if the same was true for all our instant messaging services such as WhatsApp, Messenger, iMessage, Signal or Telegram? Not only would it allow us to have only one messenger service installed and still communicate with people that use a different app. It would also allow us to make our choice of service provider free of the ‘network effect’. Through this, interoperability would reinstate competition based on all aspects of the service provided to the user - including fair terms and conditions if this is what people value.
While large scale interoperability between digital platforms may seem a distant dream at the moment it might soon become a legally mandated reality. The forthcoming EU digital markets act, which is set to regulate the duties of big tech companies (so-called ‘gatekeepers’), will mandate interoperability for instant messaging services. This could be a first step towards paving the way for more widespread interoperability between online platforms and thus allowing users to choose their providers of online services freely again
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