Freedom of Expression Online

“Artificial intelligence (AI) – a broad concept used in policy discussions to refer to many different types of technology – greatly influences and impacts the way people seek, receive, impart and access information and how they exercise their right to freedom of expression in the digital ecosystem. If implemented responsibly, AI can benefit societies, but there is a genuine risk that its deployment by States and private companies, such as internet intermediaries, could have a deteriorating effect on human rights… [This Paper] maps the key challenges to freedom of expression presented by AI across the OSCE region, in light of international and regional standards on human rights and AI. It identifies a number of overarching problems that AI poses to freedom of expression and human rights in general, in particular: (a.) The limited understanding of the implications for freedom of expression caused by AI, in particular machine learning; (b.) Lack of respect for freedom of expression in content moderation and curation; (c.) State and non-State actors circumventing due process and rule of law in AI-powered content moderation; (d.) Lack of transparency regarding the entire process of AI design, deployment and implementation; (e.) Lack of accountability and independent oversight over AI systems; and, (f.) Lack of effective remedies for violation of the right to freedom of expression in relation to AI. This Paper observes that these problems became more pronounced in the first months of 2020, when the COVID-19 pandemic incentivized States and the private sector to use AI even more, as part of measures introduced in response to the pandemic. A tendency to revert to technocratic solutions, including AI-powered tools, without adequate societal debate or democratic scrutiny was witnessed. Using four specific case studies (“security threats”; “hate speech”; media pluralism and diversity online; and the impact of AI-powered State surveillance on freedom of expression), this Paper shows how these problems manifest themselves. This Paper concludes that there is a need to further raise awareness, and improve understanding, of the impact of AI related to decision-making policies and practices on freedom of expression, next to having a more systematic overview of regional approaches and methodologies in the OSCE region. It provides a number of preliminary recommendations to OSCE participating States and internet intermediaries, to help ensure that freedom of expression and information are better protected when AI is deployed.”

This video was a part of the ERA’s Conference on Artificial Intelligence (AI) and Human Rights, convened in Brussels in March 2020. In this live-stream, Dan Shefet (Lawyer, Cabinet Shefet, Paris) presents and discusses the advantages of AI decision-making to the justice system. He further discusses the “accountability of private corporations for human rights violations and the challenges in enforcing judgments against them abroad.”

“[The Report] uses the term ‘disinformation’ to describe false or misleading content with potentially harmful consequences, irrespective of the underlying intentions or behaviours in producing and circulating such messages. The focus is not on definitions, but on how States, companies, institutions and organisations around the world are responding to this phenomenon, broadly conceived. The work includes a novel typology of 11 responses, making holistic sense of the disinformation crisis on an international scale, including during COVID-19. It also provides a 23-step tool developed to assess disinformation responses, including their impact on freedom of expression. The research concludes that disinformation cannot be addressed in the absence of freedom of expression concerns, and it explains why actions to combat disinformation should support, and not violate, this right. It also underlines that access to reliable and trustworthy information, such as that produced by critical independent journalism, is a counter to disinformation.”

“In this public talk hosted by the Center for Media, Data and Society at the CEU School of Public Policy, UN Special Rapporteur David Kaye discussed global threats to freedom of expression. He was introduced by Sejal Parmar, Assistant Professor at the CEU Department of Legal Studies. The agenda of the talk and themes discussed in his lecture and in the ensuing Q&A spanned the following: global threats to freedom of expression; how to promote protective measures to free speech, hate speech and access to information; protection of whistleblowers; role and liability of intermediaries and social media companies; surveillance; digital security; transparency; the Bernstein case, Apple v. FBI; code speech; different national security measures on freedom of expression, and the UN standard on the issue; Facebook posts as reasons for prosecution for incitement; Article 19; the right to be forgotten; content discrimination in relation to freedom of expression; Article 19 to promote government transparency and access to information; the Boycott, Divestment and Sanction Movement and its academic implications; academic freedom; how the Special Rapporteur prioritizes over requests and communications; and, contempt of court in relation to freedom of expression.”

“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.”

“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.”

“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.”

“The International and national laws recognize that extraordinary circumstances require extraordinary measures. This means that certain fundamental rights, including the right to freedom of expression and opinion and the right to seek and impart information, may be restricted to address the current health crisis as long as governments apply basic democratic principles and a series of safeguards, and the interference is lawful, limited in time, and not arbitrary. Governments, companies, NGOs, and individuals alike have a responsibility to do their part to mitigate the consequences of the COVID-19 health crisis and to show solidarity and respect for each other. In this paper, we provide recommendations for protecting freedom of expression and opinion and the right to impart and receive information to enable governments​ to fight the COVID-19 health crisis in a rights-respecting manner. There will be an aftermath to the COVID-19 outbreak and the measures governments put in place right now will determine what it will look like. The recommendations outlined below will help ensure that the rule of law, and the rights to freedom of expression and opinion, as well as the right to receive and to impart information, are protected throughout this crisis and in the future. Under no circumstances should any government allow people’s fundamental rights to fall victim to this pandemic.” 

“The Transatlantic High Level Working Group on Content Moderation Online and Freedom of Expression was formed to identify and encourage adoption of scalable solutions to reduce hate speech, violent extremism, and viral deception online, while protecting freedom of expression and a vibrant global internet. This report recommends a flexible regulatory framework that seeks to contribute to trust, transparency, and accountability. It is based upon: (1) transparency rules for platform activities, operations, and products; (2) an accountability regime holding platforms to their promises and transparency obligations; (3) a three-tier disclosure structure to enable the regulator, vetted researchers, and the public to judge performance; (4) independent redress mechanisms such as social media councils and e-courts to mitigate the impact of moderation on freedom of expression; and (5) an ABC framework for dealing with disinformation that addresses actors and behavior before content.”

The report “provides a new perspective on the social and political dynamics behind the threats to expression. It develops a conceptual framework on the ‘ecology of freedom of expression’ for discussing the broad context of policy and practice that should be taken into consideration in discussions of this issue.”