Why Mark Zuckerberg should face the threat of jail

The UK government is about to do something that will make Silicon Valley shudder, or at least make social media executives think twice about flying over British airspace.

Prime Minister Rishi Sunak looks all but certain to strengthen the UK's Online Safety Bill with criminal sanctions for social media bosses, after fierce lobbying from the country's ruling Conservative party. The bill aims to protect under-18s from harmful content; so if regulators find that Instagram has been steering British kids toward material encouraging suicide, Mark Zuckerberg could face up to two years behind bars.

Harsh as it sounds, politicians across the main parties are eager for stricter rules. The amendment will likely go in when the bill goes to the House of Lords, probably this spring. Barring any major events — like the prime minister being replaced again — the Online Safety Bill should pass before November 2023, when the UK's current session of Parliament ends.

Naturally, none of this has gone down well with some tech leaders. Jimmy Wales, the co-founder of Wikipedia, called the move a form of tyranny, while others suspect a Silicon Valley vendetta by British politicians.

But it is actually a prudent move. "Tyrannical" criminal sanctions have been part of regulatory life in Britain's banking and construction industries for years, and their existence has helped keep lines of accountability clear and the process of regulation easier. In the last six months, jail sentences have been handed out to at least four people from the building trade because of fatal accidents, including the deadly fall of a 69-year-old builder who was working on a house extension last year; the manager overseeing the builder's work was jailed for nine months after inspectors found the scaffold he'd been working on had no guardrails.

Convictions have been more rare for financial rules that were introduced after the 2008 credit crisis to deter misconduct, but they have created a clearer chain of accountability for banks, which have been forced to draw maps of executives' roles and responsibilities to give to the country's financial watchdog.

Social media companies by contrast aren't required to divulge who is in charge of what, even though they have entire divisions devoted to critical jobs such as stopping incitement to violence, harassment, and misinformation on their networks.

In fact, we only know that Facebook's head of safety reports to its chief lobbyist Joel Kaplan because a British MP asked the executive multiple times during a hearing in late 2021. That chain of command doesn't inspire huge confidence in the company's concerns for user safety, since Kaplan is charged with improving Facebook's political standing. 

Facebook whistleblower Frances Haugen revealed that Instagram knew its app made body image issues worse for young women and that Meta's engagement-based ranking systems steered more people toward outrage to keep them on Facebook. For years, Meta has prioritised profit over and safety, but it has mostly received slaps on the wrist from regulators — multimillion-dollar fines that are rounding errors for the company's gargantuan revenue.

Frustrated that tech firms haven't delivered on promises to stop harming kids' mental health, British child-protection groups like the NSPCC are rightly behind the push for more daunting personal outcomes for social media executives.

And the idea is not so outlandish from a legal perspective. Stephen Bainbridge, a professor of law at UCLA, points out that punishing an entire company for the bad behavior of its directors — like most regulatory action against Meta and other Big Tech companies until now — unfairly penalises innocent parties. Shareholders lose money and employees might suffer job cuts.

Personal sanctions against company leadership are a more effective deterrent to bad behavior, he argues. Corporations, after all, aren't moral actors. "The corporation is simply a nexus of contracts between factors of production," Bainbridge says. "There is no moral basis for applying retributive justice to a corporation. There is nothing there to be punished."

Will an amendment threatening jail actually see Zuckerberg spend two years eating beans on toast with other British prisoners? Meta and its peers will likely do whatever they can to prevent such a scenario, but the threat itself will almost certainly push firms to cooperate with greater enthusiasm when they are audited by Ofcom, the UK's new online regulator and the rules come into force. That would be a big improvement on the status quo.

It's also apt that the law comes just when Big Tech leaders are cutting thousands of jobs, reining back their culture of expensive perks, and telling staff they need to work harder. That's a culture shift that Big Tech has needed for some time.

Now it's time the people in charge lose some luxuries too, including the legal protections they have enjoyed for years.

Parmy Olson. Illustration: TBS

Parmy Olson is a Bloomberg Opinion columnist covering technology.

Disclaimer: This article first appeared on Bloomberg, and is published by a special syndication arrangement.