Le blocage de « Parler », le droit antitrust et le libre marché des idées

Following the removal of the social media platform Parler from the Play Store, the App Store, and the AWS Cloud in early 2021 for a lack of content moderation, an antitrust lawsuit was filed against Amazon. The claimant notably alleged that the defendant conspired with Twitter, violating Section 1 of the Sherman Act. In support of its claim, Parler argued that there was a differential treatment between itself and Twitter, where there was similar violent content such as the trending topic ?Hang Mike Pence.? In fact, Twitter and Amazon signed a pluriannual contract in December 2020, and despite the presence of hateful speech on Twitter, AWS did not put a term to this contract. By taking Parler offline and removing it from the AWS Cloud, the latter could have helped Twitter to foreclose the market for microblogging social media platforms. However, ?to state a claim under Section 1, a plaintiff must allege facts that, if true, will prove: (1) the existence of a conspiracy, (2) intention on the part of the co-conspirators to restrain trade, and (3) actual injury to competition? (Coalition for ICANN Transparency, Inc. v. VeriSign, Inc. 611 F.3d 495, 501-02 (9th Cir. 2010). It is very doubtful that these three elements would have been reunited in this case. Indeed, in the presence of such circumstantial evidence, the plaintiff ?must present evidence ?that tends to exclude the possibility? that the alleged conspirators acted independently. Thus, respondents here must show that the inference of a conspiracy is reasonable in light of the competing inferences of independent action or collusive action that could not have harmed respondents? (Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). Such evidence was not brought by Parler, as shows the rejection of the preliminary injunction seeking for the reinstation of AWS?s web-hosting services, on the January 21, 2020, the court stating that ?Parler has failed to demonstrate that it is likely to succeed on the merits of its Sherman Act claim? (Case 2:21-cv-00031-BJR, Doc. 34). Furthermore, as courts have already accepted social justifications relevant to a rule of reason analysis, such as in United States v. Brown University (5 F.3d 658 (3d Cir. 1993), it could have been plausible for AWS to assert that the moderation of hateful content was necessary to improve the quality of its services, this improvement being subsequently analyzed as a procompetitive justification. Even though this lawsuit was then?logically?withdrawn on March 2, Parler failing to sufficiently prove the presence of a conspiracy, it raises questions about Big Tech companies? increasing role in controlling the circulation of information and antitrust?s part in the ?marketplace of ideas.? This theory, articulated by Judges Brandeis and Holmes, in dissident opinions notably in International News Service v. Associated Press (248 U.S. 215 (1918) and American Column & Lumber Co. v. United States (257 U.S. 377 (1921) conveys the idea that ?the ultimate good desired is better reached by fair trade in ideas? (Abrams v. United States, 250 U.S. at 630 (1919). Thus, free speech and free competition are closely intertwined, a functioning market of ideas guaranteeing a functioning market of services and products. As a result, ?this supposedly maximizes social welfare [since] the market promotes good ideas and condemns bad ones better than the state can? (G. DAY, ?Monopolizing Free Speech,? Fordham L. Rev., vol. 88, 2020, p. 1315). These days, however, because of Big Tech?s ability to regulate speech and in the absence of sufficient legislation, many believe that the suppression of speech is anticompetitive. This case could be an example, with the risk of foreclosure for the microblogging social media service for Parler. Nevertheless, the conditions of a conspiracy are not required in this case, as much as public enforcement, private enforcement, and antitrust intervention cannot take the form of a claim of violation of Section 1 of the Sherman Act. Nonetheless, as the control of ideas seems to be falling into the hands of a few Big Tech companies, assuming the position of private regulators, a threat for free speech as well as for free competition appears to arise. Antitrust laws should thus be a tool to promote the free circulation of ideas, the goods and services market ultimately benefiting from a better marketplace of ideas.