There was an interesting story by Michael Posner in The Globe and Mail yesterday on Apple’s decision not to allow the sale of books and apps telling the story of Danish hippies on its commercial platforms, iBookstore and the App Store, because they contain some photographs featuring naked men and women. Apple says the pictures breach its policy against sexually explicit images. Mr. Posner accuses the company of hypocrisy, because it has not banned other books “filled with pictures of naked bodies [and] continues to sell apps for Playboy and Sports Illustrated, which feature partially naked women.” So does the author of the books, who points out that Apple’s founder, Steve Jobs, claimed to be a spiritual descendant and to share some of the ideal of the hippies movement, which he accuses Apple of betraying. The publishers, for their part, insist that the books are in no way pornographic or arousing, so that they do not breach Apple’s guidelines.
Be that as it may, the Danish authorities are not amused. Mr. Posner writes that
[l]ast week, Uffe Elbaek, the country’s culture minister, wrote to his European counterparts, and to European Union commissioners Neelie Kroes and Androulla Vassiliou, seeking to have the issue debated within the EU.
“This is a history book,” Elbaek said in an interview. “It documents how we behaved in those days. Is it fair that an American company without any real dialogue … can apply American moral standards to a product that only interests a Danish audience with vastly different moral standards?”
The minister worries that corporations “will decide how freedom of speech will be arbitrated and who is allowed artistic freedoms” and argues that “it’s important that we have these discussions at regional and national levels.” Mr. Posner too worries about freedom of speech. Indeed, he accuses Apple of “de facto censorship.”
This brings to mind several issues about which I have already blogged. One is the dual and ambiguous position of technology companies as speakers and censors, about which I have written about in Google’s case. Apple might argue that a decision not to allow the sale of a book it deems offensive or otherwise unsuitable is a form of editorial judgment and, thus, protected speech, just as Google argues its decision to disfavour copyright-infringing websites in ranking its search results is. At the same time, as the provider of a platform through which others express themselves, Apple takes on a speech-regulating role; and the importance this role is proportionate to that platform’s popularity.
But there is a crucial difference between Google removing content from, say, YouTube at the request of a government agency, and Apple removing content from its stores on its own, without any government involvement. In my view, it is not fair to refer to such decisions as censorship. A private company, at least so long as it is not a monopolist, has no power to prohibit speech. If a speaker is not allowed to use one private platform, he or she can turn to another. As Mr. Posner notes, the books Apple has banned from its stores are best-sellers in print. Their author is not exactly being silenced.
Besides, we accept that newspapers or publishers do not print everything that is submitted to them. The question, then, is whether there is a reason for holding technology companies to a different standard. Dominant market position or, a fortiori, monopoly might be one such reason. But I doubt that Apple actually has a dominant market position, even in the app market (considering Android’s popularity); it surely doesn’t have one in the book market. And I’m not sure I can think of anything else that would justify, even as a matter of morality, never mind law, saying that Apple (or Google, or whoever) has more onerous duties towards freedom of expression than traditional media companies, as Ms. Elbaek, the Danish minister, seems to think.
As always in the face of such disagreement, there also arises the question of who (if anyone) ought to be making the rules, and how―the question of the appropriate “mode of social ordering,” to use Lon Fuller’s phrase, about which I blogged here, here, and here. Ms. Elbaek seems to think that the rules regulating the ability of platforms such as Google’s or Apple to select and “censor” their contents should be said by national governments (by legislatures presumably, or maybe by executives through international treaties) or by supra-national bodies such as, presumably, the EU. (Note that she spoke of “discussions at regional and national level”―not at the UN, which she probably knows is not too keen on certain kinds of offensive speech the Danes see nothing wrong with.) But it’s not clear that governments, at whatever level, should be making these rules. As wrote in my earlier posts, legislation is often a clumsy tool for dealing with emerging technologies and new business models, because the latter develop faster than the former can adapt. And private ordering through the market might be enough to take care of the problem here, if there even is one. Apple is not a monopolist; it has competitors who might be willing to give the books which it does not like a platform, and profit from them. Authors and readers are free to use these competing platforms. Apple will remain a prude―hypocritical (as prudes often are) or not―if it thinks there is a profit to be made in prudishness, or it will convert to more liberal ways if that is more profitable.