Was Elon Musk’s banning of rival social-media links on Twitter illegal?

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Vass Bednar is the founder of Regs to Riches, a senior fellow at Centre for International Governance Innovation (CIGI), and the executive director of McMaster University’s master of public policy in digital society program.

Late last week, Elon Musk again modified Twitter’s moderation policy on a whim. While Mr. Musk was making headlines for arbitrarily suspending the accounts of journalists who have been critical of him, Twitter users discovered that it was suddenly no longer possible to post web links to a platform called Mastodon. The fast-growing rival is a free and open-source software for running self-hosted social-networking services, and it has microblogging features that are similar to those of Twitter.

Then on Sunday, Twitter announced it would now be expanding this practice of banning the sharing of links or user names to six other social media sites – Facebook, Instagram, Truth Social, Tribel, Nostr, and Post – claiming that such sharing amounted to “free promotion.”

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That policy was abruptly reversed just hours later, followed by Mr. Musk asking in a Twitter poll whether he should step down as head of Twitter. It’s not hard to see why. Twitter’s move could have been illegal in certain jurisdictions – and where it isn’t, where the lines are blurrier and where authorities are slower to act, it may well invite further regulatory scrutiny.

While the link-blocking may seem like a form of editorial censorship, the action ultimately raises the question of whether thwarting web links to a competitor is an anti-competitive action. In a bricks-and-mortar context, a shop owner has no obligation to stock, display or advertise comparable brands. But a more apt analogy here would be if Google banned Microsoft Office from its Android app store so as to favour Google Docs.

And the muting of rivals is much murkier in a digital context, where content is user-generated – especially given that such content essentially serves as a micro-advertisement and is normally subject only to the content-moderation policies of the platform.

Under Canada’s existing competition guidelines, Twitter’s obstruction of Mastodon links and those of other social media would not necessarily meet that threshold for abuse of dominance, largely because the company doesn’t have dominance over the microblogging marketplace. It is the same in the United States.

But setting size aside, what Twitter did could certainly be considered anti-competitive on the face of it – an activity that stops or substantially reduces competition in a market because it is exclusionary – the action is trying to attempt to cut off access to an input (in this case, audiences and unpaid advertising).

At this moment, the reality is that some jurisdictions may be better positioned to react. As political economist Francesco Nicoli has pointed out, censoring Mastodon social IDs could be a major violation of EU competition law, prompting billions in fines (or up to 20 per cent of Twitter’s annual revenue).

This recent move by Twitter is another reminder that in a digital context, it may be as important to pay attention to business behaviours as it is market dominance. Some jurisdictions have been proposing or introducing new antitrust laws that are specifically drafted to deal with the largest technology companies. It may be that Canada needs complementary legislation that recognizes that anti-competitive acts can be executed by non-dominant, but important players as well.

A Canadian perspective is valuable because regulators all around the world are working to define the difference between behaviour that is anti-competitive and behaviour that is simply savvy business in a digital context. This could mean that Canada winds up as a policy maker – not just a cautious policy taker.

After making initial amendments to the Competition Act earlier this year through the budget bill, Canada has continued the Herculean task of modernizing the law with the recent launch of an open consultation on the Future of Competition Policy in Canada. No doubt, policy makers have been paying attention to the Twitter drama.

Sudden changes like Twitter’s arbitrary blocking of Mastodon provide rich case studies to test the flexibility of our existing law and its ability to interpret such interventions, providing an important opportunity to consider whether and what changes to our laws may be needed to properly capture this kind of digital power. The Act was last modified in 2008, two years after Twitter was founded and long before it was seen as a proxy for a digital public square.

Twitter’s banning of rival links could – and should – be a teachable moment for Canadian policy makers. It is a reminder that we require a much more responsive and entrepreneurial regulatory environment that keeps way better pace with digital realities without just singling out the most dominant firms in digital and platform markets.

Modelling a policy practice that is as decisive as Mr. Musk’s but less emotional and quixotic would allow the bureau to offer same-day comment on the activity, instead of chewing on it for a few years only to conclude when Twitter as we know it no longer exists.