Freedom of Expression Online

The Declaration jointly developed by Access Now, ARTICLE 19, Mnemonic, the Center for Democracy and Technology, JustPeace Labs, Digital Security Lab Ukraine, Centre for Democracy and Rule of Law (CEDEM), and the Myanmar Internet Project, sets out guidelines to help platforms protect human rights before, during, and after a crisis. The motivation for the Declaration stemmed from an understanding that “[i]n situations of armed conflicts and other crises, people use social media and messaging platforms to document human rights abuses or war crimes, access information, mobilize for action, and crowdsource humanitarian assistance. But governments and other actors leverage these same platforms to spread disinformation and hate speech, incite violence, and attack or surveil activists, journalists, and dissidents.” The partner organizations hope that the Declaration will help “advance consistent and rights-respecting principles for companies to respond appropriately to crises and meet their obligations and responsibilities under international human rights law.”

In this segment of the MOOC created by Columbia Global Freedom of Expression, Dinah PoKempner talks about surveillance and human rights today.

“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.”

“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.”