“This is a case about unduly large power of an unduly large corporation with an unduly large impact on society.”
“This is a case about unduly large power of an unduly large corporation with an unduly large impact on society.”
Part One of a conversation with Joel Bakan and Sujit Choudhry about “new” corporations, the power of Big Tech, and suing Twitter and the Canadian government
Sujit Choudhry1 practices constitutional law in Canada and around the world. He frequently appears as counsel, including in the Supreme Court of Canada. He is an internationally recognized authority on comparative constitutional law and has been an advisor to democracy support, constitutional reform, and peace processes for over 20 years, including in Cyprus, Egypt, Ethiopia, Jordan, Libya, Myanmar, Nepal, South Africa, Sri Lanka, Sudan, Tunisia, Ukraine, Yemen, and Zimbabwe.
Joel Bakan2 is a professor of law at the University of British Columbia and an internationally renowned legal scholar and commentator. He is the author of the critically acclaimed books “The Corporation: The Pathological Pursuit of Profit and Power” (2004) and “The New Corporation: How ‘Good’ Corporations Are Bad for Democracy” (2020). He wrote and co-created two feature documentary films by the same names.
This is the first of a two-part interview. Read the second part here. To listen to the complete audio of our conversation, head here, or search for “Reframe Your Inbox” wherever you get your podcasts. The excerpts below have been condensed significantly and edited for clarity.
ADAM: Tell me about the documentary, “The New Corporation,” which, Joel, is based on a fantastic and very important book that you wrote by the same name.
JOEL: We made “The Corporation” in the early 2000s. It’s a critique of the corporation as an institution. It essentially argues that because it’s legally constituted always to serve its own interests—namely, the collective interests of its shareholders—and because it’s a person, it makes sense to talk about it as a psychopath.
Around 2014, at the tenth anniversary screening of the first film, we were all celebrating, Wow, we made this film ten years ago. And I realized there was absolutely nothing to celebrate. Everything we talked about in the first film—climate change, racial and economic injustice, exploitation of workers, species extinction, toxic chemicals, the whole nine yards—everything had gotten worse. Corporations had become bigger and more powerful. Now they were presenting themselves as having changed, as now being the solution to the world’s problems, rather than the problem.
This really hit me like a ton of bricks. On the one hand, the world was getting much worse in all of these ways, not least because of how corporations were acting. At the same time corporations were saying, We’re the new saviors. We’ve changed our game. We’ve become better now. We’re sustainable. We’re woke. We care. All of that stuff. I thought, Wow, that’s a strange contradiction that needs to be looked at a little more deeply.
The [latest] film [“The New Corporation”] came out in 2020, as did the book. It got a lot of great critical reviews. We played at a lot of festivals. We had a Canadian distribution deal, and we mounted a campaign to try to get a U.S. distribution deal and distribution deals around the world so that people in other places could see the film.
Twitter is a very, very important platform for promoting films, especially independent films where you don’t have a big studio backing you. We were shut down by Twitter, in effect. We tried to promote the trailer for the film on Twitter so that it would get out to people and start creating some buzz, and Twitter stopped that.
ADAM: Can you tell folks a little bit about the contradictory and unclear and what sounded like very arbitrary messages that you got from Twitter, and a few of the details about why you decided to file the suit and where things are right now?
SUJIT: The marketing company hired to promote the film on social media, including on Twitter, submitted the trailer electronically through a portal, as is the standard way to do things on Twitter. It got turned down by an A.I. bot for no reason at all. It got turned down a couple more times that way until the marketing company reached a person [at Twitter].
The person said, Well, I’m sorry, but this ad contravenes our political advertising policy. The ad is basically a series of clips from this movie. It’s not for a political party. It’s not for a candidate. It’s not even for a specific legislative initiative. It’s just about corporate power, ironically enough.
[Our] response was, How do you define politics? Because this really isn’t political. Then they respond[ed] and [said], It’s not that it’s political, but we have a prohibition on cause-based advertising, and we basically will not allow this type of advertising to come forward unless you are a certified company of some kind. This film has been funded by all sorts of Government of Canada agencies. It’s appeared on Crave.3 It’s not a marginal thing. So we thought, This is good enough. Then they said, It’s inappropriate. We said, In what way is it inappropriate? They said, It’s sensitive. Each of those “noes” relied on a different Twitter ad policy.
The reason we decided to launch a lawsuit is that we had exhausted Twitter’s internal mechanisms to appeal this process. If the government had done this—let’s say Twitter was a public utility and it had these policies—if a bureaucrat had given these reasons in series, this would be facially unconstitutional. There’s just no question.
ADAM: This last point you made gets to something the two of you wrote together in an op-ed in the Toronto Star in September. You asked, “Why is an American corporation, based in California, whose user agreement is governed by American law and enforced by U.S. courts, setting the rules for campaign videos in a Canadian federal election?”4 Let me turn that question back to you. Why is an American corporation setting the rules in Canada—and, for that matter, countries around the world?
JOEL: A lot of people don’t know that U.S. First Amendment law is a bit of an outlier in terms of the free speech regimes of countries around the world [and] in the rigidity of the distinction between government and other actors. What Twitter’s trying to do is it’s trying to impose that rigid distinction on Canada and every other country because our free speech law is more nuanced.
SUJIT: The clauses that are in the user agreement say that the agreement is governed by American law. It also says that disputes about the agreement can only be heard in California courts. We anticipate that Twitter will bring a motion to try to have the case adjourned in a Canadian court on the basis that it really should be heard in a court in San Mateo County.
ADAM: [This case reflects the] tension between the power of national governments [and] the power of global corporations. [That tension] seems especially relevant right now when so much of the power of these tech companies is concentrated in one very specific jurisdiction. I’m wondering a) if you have any thoughts on that tension, and b) if you can talk a bit about what the overall goal of the suit is? It seems to me that it’s about more than just running promoted tweets on Twitter. It’s about accountability, it’s about transparency, it’s about corporate impunity.
JOEL: One of the central issues in my book and film is the way that democratic sovereignty of nations is being severely eroded in the face of rising corporate power.
One of the tools that corporations use to gain this power are these kinds of clauses and contracts that say that if you’re in Nigeria, Canada, Germany, India—wherever you are, you’re going to have to play by the rules of our home jurisdiction. You’re going to have to play in our courts. [That] immunizes these corporations from legal accountability. The other thing it does is—it’s kind of a colonial thing. It globalizes the legal system of the United States. It imposes it on every other country.
What this is all looking at in a larger way is the intuition that I think we all have, that these platforms have an immense amount of power and… very few responsibilities or duties under law. There is a huge gap that is happening between the power they exercise—over our lives, over our democratic debate, over our public institutions—and the fact that they are virtually unregulated.
SUJIT: What we’re saying is that Twitter has to provide fair access to those different services because of Twitter’s unique status as a public forum. We’re not challenging the business model in a radical way.
ADAM: Joel, I was listening to an interview that you did on the “Tech Insights” podcast, and you said, “It feels like this case walked straight out of the film.”5
JOEL: This is a case about unduly large power on the part of an unduly large corporation to have an unduly large impact on society, on the economy, on politics, on democracy. It’s about the fact that it does all of that with complete impunity. There are simply no guardrails. There are no rules. There are no ways to rein it in.
It does all of this purporting to self-regulate. It does it in a way that effectively privatizes democratic discourse by putting it all on this private, for-profit platform. It does it in a way that is discriminatory, that violates free speech values. And on the other side, it does it in a way that amplifies speech that is harmful, while at the same time it’s diminishing speech that isn’t.
In all kinds of ways, it’s having a profound impact on our society and on our democracy, while at the same time being unaccountable and... operating on a model that prioritizes returns to shareholders. That is its lodestar, and everything else has to fit into that. And if it doesn’t, it’s not taken account of. That’s a very dangerous place to be.
In the film and in the book we do a critique of Big Tech on the ground that it has this undue power, [and] that it’s dangerous for democracy in these ways. Here we are effectively being victims of the same things that we criticize in the film, and now having to take on Twitter in this David and Goliath fight.
Read the second part of our conversation here. Visit thenewcorporation.movie to learn more about the film and the lawsuits against Twitter and the Canadian government.
https://www.sujitchoudhry.com; @sujit_choudhry
https://www.joelbakan.com; @joelbakan
https://www.crave.ca/en/tv-shows/the-new-corporation-the-unfortunately-necessary-sequel
https://www.thestar.com/business/opinion/2021/09/04/were-fighting-to-hold-twitter-accountable-under-canadian-law.html
https://anchor.fm/techinsights/episodes/The-New-Corporation-v-Twitter-and-Canada-e14tqst