Freedom of Expression Online

“Once hailed as beacons of democracy, social media platforms such as Facebook, YouTube and Twitter now find themselves credited with its decay. Amidst a rising global techlash and growing calls for digital constitutionalism, this article develops a typology of the diverse forms of governance enabled by social media platforms and examines the contestability of human rights law in addressing the accountability deficits that characterize the platform economy. The article examines two interrelated forms of social media governance in particular: content moderation, encompassing the practices through which social media companies determine the permissibility and visibility of online content on their platforms; and data surveillance, encompassing the practices through which social media companies process personal data in accordance with their extractivist business models. Recognizing that human rights law is a vocabulary of governance with the potential to both restrain and legitimate particular relations of power within the platform economy, this article critically examines two rival conceptions of human rights law – marketized and structural – that may be relied upon to address the accountability shortfalls that pervade the contemporary social media ecosystem. The article ultimately argues in favour of a more structural conception of human rights law, one characterized by an openness to positive state intervention to safeguard public and collective values such as media pluralism and diversity as well as a systemic lens that strives to take into account imbalances of power in the social media ecosystem and the effects of state and platform practices on the social media environment as a whole.”

Published by Tech Global Institute, this white paper s a result of 12 digital rights organizations convening in Kathmandu, Nepal, last year to share lessons in combating digital authoritarianism in South Asia. The paper analyzes the digital rights challenges in the region – state control, imposition of external regulatory models, among others – and focuses on Bangladesh, India, Nepal, Pakistan, and Sri Lanka. The authors stress the urgency of forming a South Asian digital rights coalition: “Such a coalition would facilitate regional collaboration, enabling civil society to collectively advocate for a more equitable, locally relevant approach to digital rights.”

The Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR) published a thematic report on the digital age challenges to inclusion and public debate, focusing specifically on digital literacy and content moderation processes. Premised on the international human rights principles, the report offers normative guidance – in essence, a content governance framework – to states and other relevant actors “​​in promoting an internet that is truly accessible to all persons, without discrimination.” The report concludes with a list of recommendations, one of which urges states to adopt policies that tackle “hate speech or disinformation coming from public figures” but warns that “[s]uch policies should be aligned with international human rights standards, especially the three-part test of legality, legitimate aim, and necessity and proportionality.”

“In this essay, Professor Balkin argues that digital technologies alter the social conditions of speech and therefore should change the focus of free speech theory, from a Meiklejohnian or republican concern with protecting democratic process and democratic deliberation, to a larger concern with protecting and promoting a democratic culture. A democratic culture is a culture in which individuals have a fair opportunity to participate in the forms of meaning-making that constitute them as individuals. Democratic culture is about individual liberty as well as collective self-governance; it concerns each individual’s ability to participate in the production and distribution of culture. Balkin argues that Meiklejohn and his followers were influenced by the social conditions of speech produced by the rise of mass media in the twentieth century, in which only a relative few could broadcast to large numbers of people. Republican or progressivist theories of free speech also tend to downplay the importance of nonpolitical expression, popular culture, and individual liberty. The limitations of this approach have become increasingly apparent in the age of the Internet. By changing the social conditions of speech, digital technologies lead to new social conflicts over the ownership and control of informational capital. The free speech principle is the battleground over many of these conflicts. For example, media companies have interpreted the free speech principle broadly to combat regulation of digital networks and narrowly in order to protect and extend their intellectual property rights. The digital age greatly expands the possibilities for individual participation in the growth and spread of culture, and thus greatly expands the possibilities for the realization of a truly democratic culture. But the same technologies also produce new methods of control that can limit democratic cultural participation. Therefore, free speech values – interactivity, mass participation, and the ability to modify and transform culture – must be protected through technological design and through administrative and legislative regulation of technology, as well as through the more traditional method of judicial creation and recognition of constitutional rights. Increasingly, freedom of speech will depend on the design of the technological infrastructure that supports the system of free expression and secures widespread democratic participation. Institutional limitations of courts will prevent them from reaching the most important questions about how that infrastructure is designed and implemented. Safeguarding freedom of speech will thus increasingly fall to legislatures, administrative agencies, and technologists.”

“The present report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye, is being submitted to the Human Rights Council pursuant to Council resolution 34/18. In the report the Special Rapporteur registers alarm that some efforts to combat the coronavirus disease (COVID-19) pandemic may be failing to meet the standards of legality, necessity and proportionality. The Special Rapporteur highlights five areas of concern, showing that access to information, independent media and other free expression rights are critical to meeting the challenges of pandemic.”

“In the present report, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression examines the threats posed by disinformation to human rights, democratic institutions and development processes. While acknowledging the complexities and challenges posed by disinformation in the digital age, the Special Rapporteur finds that the responses by States and companies have been problematic, inadequate and detrimental to human rights. She calls for multidimensional and multi-stakeholder responses that are well grounded in the international human rights framework and urges companies to review their business model and States to recalibrate their responses to disinformation, enhancing the role of free, independent and diverse media, investing in media and digital literacy, empowering individuals and rebuilding public trust.”