Private Governance of Freedom of Expression on Social Media Platforms

Abstract

For years, social media platforms have been perceived as a democratic gain, facilitating freedom of expression, easy access to a variety of information, and new means of public participation. At the same time, social media have enabled the dissemination of illegal content and incitement to discrimination, hostility, or violence, fuelling several content regulation initiatives. From the perspective of freedom of expression, this development embraces two challenges: first, private actors govern freedom of expression, without human rights safeguards; second, this privatised governance of human rights is encouraged and legitimised by a broad range of EU policy initiatives. Informed by an analysis of Danish Facebook users’ attitudes toward public debate on Facebook, we pose the question: How do social media companies such as Facebook balance various human rights considerations on their platforms, particularly in relation to freedom of expression? We analyse the abovementioned challenges through a human rights lens, which serves as the analytical framework for this article. Further, we suggest some strategies for moving forward, drawing on recent recommendations from the UN human rights system.

Full text

51
NORDICOM REVIEW
Private Governance of Freedom of
Expression on Social Media Platforms
EU content regulation through the lens
of human rights standards
Rikke Frank Jørgensen & Lumi Zuleta
The Danish Institute for Human Rights, Copenhagen, Denmark
Abstract
For years, social media platforms have been perceived as a democratic gain, facilitating
freedom of expression, easy access to a variety of information, and new means of public
participation. At the same time, social media have enabled the dissemination of illegal
content and incitement to discrimination, hostility, or violence, fuelling several content
regulation initiatives. From the perspective of freedom of expression, this development
embraces two challenges: rst, private actors govern freedom of expression, without human
rights safeguards; second, this privatised governance of human rights is encouraged and
legitimised by a broad range of EU policy initiatives. Informed by an analysis of Danish
Facebook users’ attitudes toward public debate on Facebook, we pose the question: How
do social media companies such as Facebook balance various human rights considera-
tions on their platforms, particularly in relation to freedom of expression? We analyse the
abovementioned challenges through a human rights lens, which serves as the analytical
framework for this article. Further, we suggest some strategies for moving forward, drawing
on recent recommendations from the UN human rights system.
Keywords: human rights, social media, content regulation, freedom of expression, EU
Introduction
For years, social media platforms such as Facebook have been perceived as a democratic
gain, not least due to the potential of allowing everyone to exercise freedom of expres-
sion, including voicing opinions, reaching diverse audiences, sharing information from
a variety of sources, locating likeminded people across borders, and mobilising around
specic interests. However, with the swift growth and intense use of social media, new
challenges emerge. The widespread use of social media platforms has enabled the dis-
semination of illegal content, incitement to discrimination, hostility, or violence, and a
broad range of potentially harmful content. All of these can have damaging consequences
not only for the targeted individuals, but for public debate as well (see Dangerous Speech
Jørgensen, R. F., & Zuleta, L. (2020). Private governance of freedom of expression on social media
platforms: EU content regulation through the lens of human rights standards. Nordicom Review,
41(1), 51-67. https://doi.org/10.2478/nor-2020-0003
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Rikke Frank Jørgensen & Lumi Zuleta
Project, 2020; DIHR, 2017, 2019). In response to these challenges, EU policymakers
increasingly call upon social media platforms to regulate content. This policy develop-
ment has led to a growing concern for the human rights implications of private actors
governing the online public sphere.
From the perspective of freedom of expression, particularly two challenges are at
stake. First, individual expression, public debate, and so forth are governed by private
actors operating outside the direct reach of human rights law, placing freedom of expres-
sion in a vulnerable position. Second, EU policy initiatives combatting illegal content
on social media platforms encourage and legitimise this private regime of content
regulation – without adequate human rights safeguards. In fact, the EU policies create
a regulatory incentive for over-removal that runs counter to the “strictly necessary” and
“proportionate” principles embedded in human rights law.
Part of the human rights challenge with social media platforms like Facebook occurs
because of their dual role as both a private company and a public space playing a piv-
otal role as access points to information. The diculty in establishing the appropriate
metaphor for what Facebook is makes it equally challenging to nd the right regulatory
response to their human rights impact (Jørgensen, 2013). Facebook is not a media cor-
poration with an editor-in-chief subject to media regulation; however, its widespread
use makes it as powerful as traditional media companies in many cases. Scholars have
referred to Facebook as a public infrastructure or utility, essential for social and politi-
cal participation in the twenty-rst century and accessible for all (Balkin 2017; Plantin
et al., 2016; Van Dijck et al., 2018), but it is a privately governed sphere – and legally
a commercial service – free to dene what is allowed and what is not. While Facebook
refers to itself as a global community, it is eectively governed by commercially dened
rules and norms largely inaccessible to its community (Gillespie, 2018; Klonick, 2018;
Suzor, 2019).
In this article, we analyse these challenges through the lens of human rights standards
and suggest a way forward. When evaluating state regulation and company practices, a
human rights-based approach is used to determine to which extent users’ human rights
are protected within a given social domain and to ensure that state regulation and com-
pany practices adhere to and protect human rights standards. This perspective in the
study of internet policy is not new (see, e.g., Wagner et al., 2019; Kerr et al., 2019)1;
however, the contribution of this article is to situate the EU governance model towards
social media companies within an international human rights context and to highlight
its decits in relation to protecting freedom of expression. Arguably, the EU govern-
ance model is one of several (contrasted with, e.g., the American “hands-o” and the
Chinese “hands-on” models); yet, the EU model is an interesting case due to the EU’s
strong commitment to human rights, stipulated both in the EU Charter for Fundamental
Rights and Freedoms and in the European Convention on Human Rights2.
We begin by presenting some key ndings from a 2018 survey of Danish social media
users, highlighting how the respondents perceive the role of social media platforms like
Facebook vis-à-vis their ability to enjoy freedom of expression. On that foundation,
we next address the human rights framework and the regulatory challenges involved in
protecting freedom of expression, as well as the boundaries of freedom of expression
on social media platforms. The analysis is informed by recent EU policy initiatives in
the eld of content regulation and by international human rights law, including soft
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Private Governance of Freedom of Expression on Social Media Platforms
law. We conclude with some recommendations for moving forward, drawing upon the
recommendations of UN Special Rapporteur on freedom of expression David Kaye.
Danish survey on social media and freedom of expression
In 2018, the Danish Institute for Human Rights commissioned a YouGov survey to ex-
amine Danish Facebook users’ attitudes towards social media, freedom of expression,
and content moderation. Following a previous study, “Hate speech in the online public
debate” (DIHR, 2017), the Institute was keen to understand in more detail how Dan-
ish social media users perceived Facebook’s role as a space for exercising freedom of
expression and what expectations they had for governance of the platform. In addition
to general questions related to usage patterns and perceptions, the survey posed ques-
tions about participation in the online public debate, seeking concrete experiences of
encounters with, for example, harassment and oensive behaviour when using Facebook.
Method and data
The survey was internet-based and based on answers from 2,305 Danish Facebook users
aged 18 and older. It focused exclusively on Facebook since it is the most commonly
used social media platform by the Danish population (DIHR, 2019). In fact, a recent
study shows that 63 per cent of Danes use Facebook daily and it plays a vital role as a
source of news and information, particularly among those aged 18–24 (DR Mediefor-
skning, 2018).
To identify potential respondents, e-mail invitations were sent to those meeting
the relevant criteria in the YouGov panel3. In order to ensure that the survey captured
respondents who used Facebook actively, respondents had to have a Facebook prole
and must have posted a comment on Facebook at some point. A comparison of the re-
spondents with the Danish population in general indicates that the respondents are rep-
resentative of the population when it comes to gender and age; however, there is a slight
overrepresentation of both respondents aged 50–59 years and of those highly educated.
Key results
The growing use of social media platforms as forums for public debate implies new
conditions – as well as challenges – for freedom of expression. On the one hand, the ease
of sharing opinions with a broader public is an advancement for freedom of expression;
on the other hand, the ease of expressing hostile and discriminating attitudes can deter
others from freely expressing their views. This duality is a recurring theme in the survey,
according to which 48 per cent perceive social media to be a gain for freedom of expres-
sion. Moreover, nearly one third (28%) of the respondents indicate that social media
have had a positive impact on their exercise of freedom of expression (DIHR, 2019).
The survey conrms Facebook’s dominant position in Denmark – almost half (48%)
of the respondents found it to be “an important platform for the public debate in Den-
mark”. But the question remains: How representative and pluralistic is the public debate
unfolding on Facebook? According to the survey, gender and age signicantly inuence
whether an individual is likely to participate in the public debate on Facebook: among
the respondents, men participated far more frequently that women, and those over 50
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54
Rikke Frank Jørgensen & Lumi Zuleta
were overrepresented (64%) while 18–29-year-olds were underrepresented (8%). The
ndings also suggest that the tone of the debate has a signicant chilling eect on civic
engagement: 59 per cent refrain from posting a comment on Facebook because of the
tone, suggesting a strong connection between the tone of the debate and self-censorship
in public participation. The fact that some refrain from voicing their opinion in online de-
bates was seen as a problem for freedom of expression by 63 per cent of the respondents.
But at the same time, 62 per cent found it important to safeguard freedom of expression
despite oensive comments.
Derogatory and offensive language was identified as the most prevalent type of
oensive behaviour on Facebook, with half of the respondents observing this type
of behaviour often or from time to time. One out of ve witnessed sexually oensive
comments often or from time to time, and the same number witnessed threats against
others often or from time to time. Women taking part in the public debate on Facebook
experienced derogatory and oensive comments based on their gender three times as
often as men; contrarily, men primarily experienced derogatory and oensive comments
about their political opinions.
The survey also examined attitudes towards content moderation. More than half
(53%) believe that Facebook should ensure a healthy environment for public debate
by moderating user-generated content, potentially removing content conicting with
Facebook’s community standards4. This indicates that most users do not recognise
content removal as an intervention in their freedom of expression – in fact, three out of
four do not perceive it as a freedom of expression issue at all. The respondents are more
concerned with Facebook keeping the platform free from harmful content than they are
with the potential human rights implications of Facebook’s content moderation practices.
The nature of these human rights implications is further addressed below.
The human rights framework
Human rights are legally codied norms applying to all human beings, irrespective of
national borders. International human rights law obligates states to act in certain ways
or refrain from certain acts in order to protect the human rights of individuals. Since
2012, UN resolutions have iterated that human rights, including freedom of expres-
sion, must be protected online as well as oine (UNHRC, 2012). According to article
19 of the International Covenant on Civil and Political Rights (ICCPR, 1966), states
must ensure an enabling environment for freedom of expression and protect the exer-
cise thereof (para. 1). Freedom of expression is not absolute, but any restriction must
meet the criteria: “provided by law and are necessary” for protecting individual rights
or reputations, public order, or public health and morals (para. 3). According to article
20 of the ICCPR, a legitimate restriction to freedom of expression is “national, racial
or religious hatred that constitutes incitement to discrimination, hostility or violence”
(para. 2). Likewise, the Covenant obliges states to implement and enforce appropriate
and eective measures to prevent and protect against acts of discrimination on several
grounds, including sex, race, colour, descent, or national origin (article 2, para. 1).
As part of their human rights obligations, states must ensure that human rights are
protected in the realm of non-state actors. As such, states incur responsibility not only
for human rights abuses inicted by themselves, but also those caused by third parties
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Private Governance of Freedom of Expression on Social Media Platforms
that they fail to prevent, punish, and remediate (UNHRCom, 2004: para. 8). In an on-
line domain dominated by privately owned platforms, the ability to enjoy human rights
is thus closely related to whether states have transposed them into national regulation
applicable to companies, and the willingness of companies to voluntarily undertake hu-
man rights due diligence. UN Special Rapporteur on violence against women Dubravka
Šimonovic (2018: para. 115) notes:
Internet intermediaries should uphold the principle that human rights are protected
online, and voluntary [sic] accept and apply all core international human rights
and women’s rights instruments with a view to contributing to universal human
rights protection and achieving the empowerment of women, and the elimination
of discrimination and violence against them in digital space.
In recent years, a variety of initiatives have been introduced providing guidance to
companies for ensuring compliance with human rights, most notably the Guiding Prin-
ciples on Business and Human Rights adopted by the UN Human Rights Council in
2011. According to these Guiding Principles, any business entity has a responsibility to
respect human rights. As part of this, they must avoid causing or contributing to adverse
human rights impacts and seek to prevent or mitigate such impacts directly linked to their
operations, products, or services by their business relationships – even if they have not
contributed to those impacts. Moreover, the Guiding Principles stipulate that businesses
should be prepared to communicate how they address their human rights impacts exter-
nally, particularly when concerns are raised by, or on behalf of, aected stakeholders.
While the Guiding Principles are nonbinding, the overwhelming role of social media
companies in public life globally provides a strong argument for their adoption and
implementation (Kaye, 2018). The Human Rights Council stresses that a company’s
responsibility to respect human rights is a global standard that “exists independently of
states’ abilities and/or willingness to full their own human rights obligations and does
not diminish those obligations” (UNHRC, 2011: para. 11). Former UN High Commis-
sioner for Human Rights Navi Pillay (2014: para. 43) reiterates this: “The responsibility
to respect human rights applies throughout a company’s global operations regardless of
where its users are located and exists independently of whether the state meets its own
human rights obligations”.
Since the Guiding Principles are the prevailing (and minimum) standard for dening
and assessing the responsibility of social media platforms in relation to human rights,
it is important to bear in mind the expectations to companies highlighted by these prin-
ciples. Drawing on Kaye (2018: para. 11), we group the expectations into three themes
relating to policy commitment, human rights due diligence, and remedy mechanisms:
1. Policy commitment: The company shall ensure high-level policy commitments to
respect human rights.
2. Human rights due diligence:
a. The company shall identify, address, and account for actual and potential human
rights impacts of business activities, including through regular risk and impact
assessments; meaningful consultation with potentially aected groups and other
stakeholders; and appropriate follow-up action that mitigates or prevents these
impacts.
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56
Rikke Frank Jørgensen & Lumi Zuleta
b. The company shall engage in prevention and mitigation strategies that respect
principles of internationally recognised human rights to the greatest extent possible
when faced with conicting local law requirements.
c. The company shall conduct ongoing review of eorts to respect rights, includ-
ing through regular consultation with stakeholders and frequent, accessible, and
eective communication with aected groups and the public.
3. Remedy mechanisms: The company shall provide appropriate remediation, includ-
ing through operational-level grievance mechanisms that users may access without
worsening their “sense of disempowerment”.
We return to the governance themes below, but rst we take a closer look at some of
the challenges that occur when trying to determine the human rights impact of social
media platforms.
The human rights impact of social media platforms
Over the past years, social media have contributed positively to individuals’ ability to
enjoy a broad range of human rights beyond freedom of expression, having a trans-
formative impact on individuals’ ability to assemble, mobilise, learn, educate, and so
forth around the globe. A growing awareness exists, however, that the digital domain
also entails negative human rights implications and might facilitate new instances of
violence, hate, and discrimination.
The fact that social media platforms provide modalities for a broad range of processes
related to public life and participation implies that there are additional intersections
between business activities and human rights other than the traditionally well-known
examples, such as human rights harm related to working conditions or impact on a local
community. In addition to having obligations towards their employees and the communi-
ties in which they operate, companies may negatively aect the human rights of billions
of users as part of the services and platforms they provide (BSR, 2014). This reality
presents signicant challenges for clarifying the human rights responsibilities of these
companies. While they may contribute to a range of more well-known human rights
abuses, the reach and impact on their users worldwide is unique to the sector. A specic
content regulation policy may impact billion of users’ ability to express themselves and
seek information; yet, it is not clear if and when such a policy would amount to human
rights abuse (Land, 2019).
As mentioned above, states incur responsibility not only for human rights abuses
inicted by themselves, but also those caused by third parties which they fail to prevent,
punish, and remediate. In relation to freedom of expression, state action has traditionally
been an essential element of alleged human rights violations. For example, if a state
orders a private platform to remove content, this constitutes a violation of the right to
freedom of expression under human rights law unless the order is provided by law and
necessary to pursue a legitimate aim; however, when a platform decides to remove
content because it violates its terms of service, this is private action outside the direct
reach of human rights law (Jørgensen, 2018). Legally speaking, the relationship between
the platform and the user is governed by the terms of service (contract law), rather than
human rights law. While Facebook’s practices may aect individuals’ ability to exercise
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Private Governance of Freedom of Expression on Social Media Platforms
freedom of expression, it does not have a legal obligation to protect this right. Scholar-
ship has only recently begun to address the broader societal implications of having the
online public sphere based on privately owned platforms – and the challenges raised by
this governance gap (Callamard, 2019; Gillespie, 2018; Jørgensen, 2019; Klonick, 2018;
Laidlaw, 2015; Suzor, 2019; Zubo, 2019). Eectively, private actors with strong human
rights impacts steer in the soft regime of guidelines and corporate social responsibility.
The UN Guiding Principles on Business and Human Rights (UNHRC, 2011), as
previously discussed, requires businesses to assess their human rights impacts as part
of a due diligence obligation. This requirement applies to all companies, but contrary
to many other sectors, human rights impact assessment is still a relatively new concept
for social media companies (Jørgensen et al., 2019). The prevailing industry initiative
is the Global Network Initiative (GNI), established in 2008 to guide companies when
states make requests that may violate international human rights standards of freedom
of expression and privacy (Maclay, 2014). The GNI’s approach has been to help com-
panies enact policies that anticipate and respond to situations in which host country law
and practice dier from international human rights standards. As part of this eort, the
companies publish annual transparency reports in which they reveal aggregate numbers
about state requests for interference in user communication. Moreover, the participat-
ing companies commit to undergo periodic assessment by an independent third party to
evaluate their compliance with the GNI principles (these assessments are not publicly
available except for a summary report).
Research on Facebook’s human rights approach suggests that the company tends to
focus on its role vis-à-vis suppressive states and less on the human rights impacts of its
own business practices; for example, its enforcement of community standards (Jørgens-
en, 2017; Ranking Digital Rights, 2019). The focus on state overreach is not surprising,
as these cases have attracted much attention in public debate. Moreover, the emphasis
on state overreach provides the company with an element of discretion when deciding
which internal processes to include or exclude in its human rights impact assessment.
In the following, state initiatives aiming to remove content from the online domain
are referred to as content regulation (Cooke, 2007; Frydman et al., 2009; Jørgensen &
Pedersen, 2017), whereas the companies’ enforcement of their community standards
is termed content moderation (Gillespie, 2018; Klonick, 2018; Roberts, 2019; York &
Zuckerman, 2019). While content regulation is largely concerned with removal of illegal
content – thus enforcing the boundaries for freedom of expression – content moderation
typically involves both legal and illegal content, as dened by companies in their terms
of service. Since human rights law provides legal standards for the former, and limited
guidance for the latter, the distinction is important to understand. Moreover, as you shall
see below, the two are increasingly blurred.
The EU model – from limited liability to proactive measures
Content regulation has been on the EU policy agenda since the mid-1990s, and the
ramications for freedom of expression are addressed in several studies and reports
(Jørgensen et al., 2015; Keller, 2018; Tambini et al., 2008). However, it has gained new
momentum recently, not least as a state response to counter illegal content on social
media platforms.
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Rikke Frank Jørgensen & Lumi Zuleta
For the past 20 years, the Directive on Electronic Commerce (EC, 2000) has provided
the basis for the EU regime for intermediary liability in situations of “mere conduit”
(article 12), “caching” (article 13), and hosting (article 14). These articles exempt inter-
mediaries from liability in cases where the users of the platform, network, and so forth
infringe the rights of others (Riis & Schwemer, 2019), while article 15 establishes that
states shall not impose a general monitoring obligation on providers. The exemption
from intermediary liability is conditioned on a) the provider having no actual knowledge
of illegal activity or b) the provider, when obtaining such knowledge, acting expedi-
tiously to remove or disable access to the information. In other words, a platform is
lifted from liability provided it removes illegal content quickly when notied, and it shall
not monitor its users’ activities. However, it remains unclear how quickly a platform is
expected to react to illegal content to be exempt from liability (Riis & Schwemer, 2019).
As part of the increased policy attention towards illegal content – not least on social
media platforms – regulation is now introduced that supplements the limited liability
regime of the Directive on Electronic Commerce, with expectations of “proactive meas-
ures” for user-generated content (Riis & Schwemer, 2019) to make the takedown regime
more ecient. In 2017, the European Commission issued a Communication, “Tackling
illegal content online”, that aimed to establish an “enhanced responsibility of online
platforms” (EC, 2017). This was followed, in 2018, by a Recommendation “on measures
to eectively tackle illegal content online” (EC, 2018a), which stipulates that “hosting
service providers should be encouraged to take, where appropriate, proportionate and
specic proactive measures in respect of illegal content” (Ch. II, point 18). In line with
this, the Terrorist Content Regulation currently being negotiated (EC, 2018b) mentions
proactive measures, including by using “automated means” to eectively identify and
remove “terrorist content” (EC, 2018b: 17). Likewise, the recently adopted Audiovisual
Media Services Directive (EPCO, 2018) demands that video platforms use “appropriate
means” to ensure that their services do not contain any incitement to violence or hatred.
The combination of a limited liability regime and the call for proactive measures eec-
tively demands social media companies to operate within a blurred mix of expectations
and demands. On the one hand, they are expected not to interfere with content and to
keep their status as mere conduit, caching, or host; on the other hand, they are expected
to proactively detect, identify, and remove content (we shall return to this below).
Adding to this complexity, the European Commission and Facebook, Microsoft,
Twitter, and YouTube have agreed on the “EU Code of Conduct on countering illegal
hate speech online” (EC, 2016). The agreement includes the development of internal
procedures to guarantee that the companies review notications for removal of illegal
hate speech in less than 24 hours and remove or disable access to such content if neces-
sary. It also includes partnerships with civil society organisations (so-called “trusted
reporters”) who should help ag content promoting incitement to violence and hate-
ful conduct. The Code of Conduct denes illegal hate speech according to European
Council’s Framework Decision on combating certain forms and expressions of racism
and xenophobia: as all conduct “publicly inciting to violence or hatred directed against
a group of persons or a member of such a group dened by reference to race, colour,
religion, descent, or national or ethnic origin” (European Council, 2008; quoted in EC,
2016: para. 2). Currently, there is no uniform denition of what constitutes hate speech
around the world, and the Framework Decision has been criticised for lack of compliance
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Private Governance of Freedom of Expression on Social Media Platforms
with international standards on freedom of expression, as pointed out by the UK-based
organisation ARTICLE 19 (2016).
Since its adoption, the Code of Conduct has been supplemented with various na-
tional initiatives. In 2017, Germany introduced the Network Enforcement Act in order
to tackle “hate speech” on social media platforms (see German Law Review, 2017).
The Act obliges owners of social media platforms with more than two million German
users to remove illegal content within 24 hours or risk sanctions with fines up to 50
million euros. In the UK, former Prime Minister Theresa May has encouraged industry
to “go further and faster” in removing terror-related content, including by developing
automated filters to detect and suppress it automatically (Hope & McCann, 2017).
Most recently, an Online Harms White Paper sets out the British government’s plans
for a “world-leading package of online safety measures” comprising legislative and
non-legislative measures to make companies more responsible for their users’ safety
online (GOV.UK, 2019).
Scholars and commentators have repeatedly warned that the EU approach to content
regulation uses intermediaries (in this case social media platforms) to implement public
policy with limited oversight and with severe implications for freedom of expression
(Brown, 2010; Jørgensen et al., 2015; Keller, 2018; Kor, 2014; Mackinnon et al.,
2014). When companies may be sanctioned for not rapidly identifying and removing
illegal content, this creates an incentive for over-removal (“better safe than sorry”) and
may lead to a disproportionate takedown of legal content in order to target a smaller
amount of illegal material, which contradicts the “strictly necessary” and “proportion-
ate” principles embedded in human rights law. In response to the EU draft of Terrorist
Content Regulation (EC, 2018b), several UN special rapporteurs stated their concern
for the short amount of time platforms have “to comply with the sub-contracted human
rights responsibilities that fall to them by virtue of State mandates on takedown” (Kaye
et al., 2018: 6). The rapporteurs note that the short timeframe and the threat of penal-
ties are likely to “incentivize platforms to err on the side of caution and remove content
that is legitimate or lawful” (Kaye et al., 2018: 6), profoundly eecting users’ human
rights and undermining the potential for meaningful remedies to be quickly activated.
Likewise, proactive measures such as upload lters would enable the blocking of content
without any form of due process even before it is published (Kaye et al., 2018). Such
practice would reverse the human rights standard that states – not individuals – bear
the burden of justifying restrictions on freedom of expression, and it would make it
practically impossible to uphold the “strictly necessary” and “proportionate” principles
of international human rights law. Moreover, such proactive measures seem to conict
with the obligations of the Directive on Electronic Commerce – to not interfere with
content nor monitor it (EC, 2000). Anticipating this potential conict, the Explanatory
Memorandum to the draft Terrorist Content Regulation states that “any measures taken
by the hosting service provider in compliance with this Regulation, including any pro-
active measures” will not lead to the provider losing the liability exemption under the
Directive for Electronic Commerce. (Kaye et al., 2018: 9). However, as such recitals are
not binding, this may lead to legal uncertainty, impacting both platforms and individuals,
and potentially undermining the protection of human rights (Kaye et al., 2018).
Eectively, social media platforms operate in a legal grey-zone with conicting ex-
pectations related to their role vis-à-vis content regulation. In practice, they are asked
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Rikke Frank Jørgensen & Lumi Zuleta
to navigate between three set of norms. First, limited liability schemes that expect them
to not monitor content but remove illegal content when notied in order to benet from
“safe harbours” provisions (EC, 2000). Second, expectations of enhanced responsibility
and proactive measures (Code of Conduct, Terrorist Content Regulation, Audiovisual
Media Services Directive). And third, conducting human rights impact assessments to
mitigate negative human rights impacts, as stipulated in the UN Guiding Principles on
Business and Human Rights.
This zone of unclear expectations, norms, and liability provisions is partly due to
the character of the online domain. With private companies in control of social me-
dia platforms, it is no surprise that EU regulators and member states have turned to
these actors to regulate content, as it is outside their direct sphere of control. Looking
through the prism of the right to freedom of expression, however, this practice is prob-
lematic and calls for standards from EU regulators to ensure that fundamental rights
are protected when regulatory action is delegated to private actors. In the absence of
such standards, the legal grey-zone presented by regulation and codes of conduct are
transposed to national level in the EU member states. Consequently, social media plat-
forms are left with self-devised standards while carrying out practices that aect users’
human rights. This privatised law enforcement challenges international human rights
standards whereby states, as duty bearers, have an obligation to respect and protect
individuals’ human rights.
The company model – community standards rule
While content regulation is concerned with removal of illegal content mandated by
states, content moderation refers to company practices involving both legal and illegal
content, as dened in the terms of service and community standards (Gillespie, 2018 ;
Roberts, 2019; York & Zuckerman, 2019). In recent years, the content moderation prac-
tices of social media companies increasingly evoke attention. Social media companies
such as Facebook are subject to continuous criticism for not doing enough in terms of
policing their platforms, for example in relation to hate speech, and for doing too much,
such as removing legal content. In relation to the criticism of “not doing enough”, this
perception is illustrated by the Danish YouGov survey, where more than half (53%) of
respondents believe that Facebook should take responsibility for the public debate and
moderate user-generated content (see Key results above).
In contrast to this position, several UN special rapporteurs (Kaye et al., 2018: 7) have
noted that social media platforms’ terms of service and community standards frequently
impose limitations beyond what states could do in compliance with their obligations
under international human rights law:
Such standards are commonly drafted in terms that lack sufficient clarity and
fail to provide adequate guidance on the circumstances under which content may
be blocked, removed or restricted, or access to a service may be restricted or
terminated, thereby falling short of the legality requirement under international
human rights law.
These shortcomings become particularly problematic when states expect companies to
take on quasi-regulative and quasi-enforcement functions (as discussed above); hence,
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Private Governance of Freedom of Expression on Social Media Platforms
it is crucial to ensure that such sub-contracting of state obligations are compliant with
human rights (Kaye et al., 2018).
In practice, companies’ content moderation policies are continuously revised to reect
legal standards (in particular US law) and ever-evolving company norms for the types of
expressions allowed within their services. As such, a diverse mix of legal and non-legal
standards guide the numerous decisions taken on content each day. The justications
for content removal (and account deactivation) range from content illegal under US law
(e.g., child exploitation, terrorism, copyright violations, fraud, and criminal activity)
to content that is legal but outlawed by the community norms (e.g., pseudo-identity,
harassment of others, harmful content, nudity and sexually explicit content, and certain
categories of graphic content). The content categories are not clearly demarcated, and
their enforcement continues to evoke public debate in specic cases as illustrated, for
example, by the removal of the “napalm girl” photo posted by the Norwegian newspa-
per Aftenposten (BBC News, 2016). While the companies’ handling of state requests
for takedown of content is governed by human rights standards, enforcement of their
community standards is not. In practice, the incentive to uphold freedom of expression
standards is countered by the mixed set of norms that make up community standards.
Regarding enforcement, Facebook relies on a combination of software and users to
ag “inappropriate” content, which is then reviewed and decided upon by a globally
distributed team of content reviewers. In short, content moderation implies that social
media companies set the boundaries for their users’ freedom of expression based on their
community standards rather than the criteria prescribed by human rights law.
Transparency, or lack thereof, is therefore an important theme in relation to con-
tent moderation practices; for example, in relation to numbers and types of content
removed and the decisions and practices informing those removals. The powerful role
Facebook has in governing public debate has prompted calls for an increased level of
transparency to enable some level of public oversight. In 2018, for example, a group of
scholars, freedom of expression advocates, and platform representatives gathered at the
rst “Content Moderation & Removal at Scale” conference to examine the operational
challenges of content moderation and how companies are addressing them. As a result,
the participants agreed on the “Santa Clara principles on transparency and accountabil-
ity in content moderation”, which demand that companies should publish the number
of posts removed and accounts suspended; provide notice and explanation to each user
aected; and provide a meaningful opportunity for appeal of any content removal or
account suspension (Santa Clara Principles, 2018).
In 2018, Facebook – for the rst time – decided to publish its internal guidelines
on how it enforces its community standards (Bickert, 2018), as well as a preliminary
transparency report related to community standards enforcement (Facebook transpar-
ency, 2020). The company has also started an appeal process to enable users to object
to individual content decisions. Despite such initiatives, it remains an open question
how freedom of expression concerns raised by corporate policy, design, and engineering
choices should be reconciled with the freedom of private entities to design and customise
their platforms as they choose (Kaye, 2016: para. 55).
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Rikke Frank Jørgensen & Lumi Zuleta
Protecting freedom of expression on Facebook
Part of the regulatory challenge with social media platforms like Facebook occurs be-
cause their services resemble a public sphere (Jørgensen, 2018; Moore, 2016; York &
Zuckerman, 2019) yet operate purely within the remit of private law. As illustrated by
the Danish YouGov survey, Facebook has established itself as a signicant venue for
public debate in the country, with almost half (48%) of the respondents stating that they
nd Facebook to be “an important platform for the public debate in Denmark”. However,
while it provides an open, widely accessible space for debate and news consumption,
this space suers from some of the same aws as its normative ideal5; for example, by
enabling public debate in which men participate far more frequently than women and
with an age bias towards the “older” (50+ years old), while the “younger” (18–29-year-
olds) are underrepresented. Further, the survey ndings suggest that it is a public sphere
in which the tone of the debate has a signicant chilling eect on its participants, since
it keeps more than half (59%) of the respondents from sharing their opinions, in par-
ticular due to derogatory and oensive language. The chilling eect is gender biased
since women in the survey experienced derogatory and oensive comments based on
their gender three times as often as men. The male respondents, to the contrary, primar-
ily experienced derogatory and oensive comments based on their political opinion.
Despite Facebook’s seemingly public functions, its legal status as a private service
provider aords it the freedom to design, conduct, and govern this public sphere on
the basis of commercial priorities rather than public interest. In terms of freedom of
expression, Facebook has no legal obligation to protect its exercise, since such an
obligation would require national regulation, which is not the case in Denmark, nor
elsewhere. The challenge is thus to devise a way forward, whereby users’ human rights
are protected, considering recent developments both regarding content regulation (state
initiatives) and content moderation (company practices). In the nal section, we propose
three recommendations for moving forward, drawing upon the governance themes of
the UN Guiding Principles on Business and Human Rights and recommendations from
the UN’s authoritative source on this matter, the UN Special Rapporteur on freedom of
expression David Kaye.
First, states must ensure that any content regulation measure is in accordance
with human rights standards
As part of their human rights obligations, states should ensure that standards of legal-
ity, necessity, and proportionality are adhered to in any content regulation measure they
introduce or suggest, and in order to avoid a chilling eect on freedom of expression,
they should refrain from imposing disproportionate sanctions on intermediaries (Kaye,
2018: para. 66). Any automated measure must be specic and proportionate to ensure
that the tackling of illegal content does not violate users’ right to freedom of expression.
Also, states should avoid delegating responsibility to companies as adjudicators of con-
tent, which empowers corporate judgment over human rights values to the detriment of
users (Kaye, 2018: para. 68). Finally, they should publish detailed transparency reports
on all content-related requests (Kaye, 2018: para. 69) and ensure ecient complaint
mechanisms.
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63
Private Governance of Freedom of Expression on Social Media Platforms
Second, social media platforms must demonstrate a commitment to human rights
While the UN Guiding Principles (UNHCR, 2011) are not legally binding, they represent
the authoritative global standard for business and human rights and should set the direc-
tion of legal obligations as soft law norms that may crystallise to hard law obligations
over time (Kaye et al., 2018). Until hard law obligations are in place, states should re-
quire companies to demonstrate a top-level policy commitment to human rights grounded
in the Guiding Principles. As part of this, companies must demonstrate that human rights
standards form the baseline for their terms of service, community standards, and other
policies governing the use of their platforms (see below). Moreover, given their impact
on the public sphere, social media platforms must open themselves up to public account-
ability. This entails, among others, transparency reporting including granular data on
the volume and types of requests the company receives, actions taken, the volume and
types of users’ appeals, response times, and the rate at which such appeals are granted
(Kaye, 2018: para. 72).
Third, social media platforms must prove human rights due diligence across
their operations
Human rights due diligence begins with “rules rooted in rights”, continues with rigor-
ous human rights impact assessments for product and policy development, and moves
through operations with ongoing assessment and follow-up action that prevents or miti-
gates identied negative impacts including meaningful consultation with aected groups
and stakeholders (Kaye, 2018: para. 70). One element in human rights due diligence
is ensuring that enforcement of the platform’s content rules is based on international
standards of freedom of expression (ICCPR, 1966: article 19) and providing meaningful
due process. As part of due process, companies should provide notice to users whose
content is taken down or account is suspended, revealing the reason for the removal or
suspension and providing an eective opportunity for appealing any such decision, as
iterated by the Santa Clara Principles (2018).
Conclusion
The position of social media platforms as public sphere, social infrastructure, and
governors of public debate has resulted in a range of policy challenges, leading EU
legislators and member states to propose various forms of content regulation to tackle
illegal content. Tackling and hindering the spread of illegal content online is important
and necessary; however, these legislative responses eectively encourage privatised law
enforcement and support self-regulatory practices based on company community stand-
ards rather than human rights standards. Moreover, company enforcement of community
standards eectively provides for a public sphere governed by commercial priorities
rather than public interest and human rights law. Currently, the ecosystem of social
media platforms represents a governance gap in human rights protection, and it falls
upon the states – as human rights duty bearers – to secure legislative responses rmly
anchored in human rights law. With its declared commitment to human rights, the EU
has a special responsibility to ensure that the policy and governance models it suggests
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64
Rikke Frank Jørgensen & Lumi Zuleta
provide for eective human rights protection – including in the private realm. This is
especially urgent, as platforms like Facebook increasingly constitute the primary, if not
exclusive, point of access to information for many people. Unfortunately, the debate on
content regulation within the EU continues to show limited attention to the freedom of
expression issues evoked by these arrangements, thus leaving it to private companies
to set the boundaries for freedom of expression online.
Notes
1. For a summary of the human rights and technology literature, please refer to Jørgensen, 2019: xxiv-xxvii.
2. The European Convention of Human Rights is anchored within the Council of Europe, which has for
the past 20 years been instrumental in devising human rights standards related to internet governance
(see Jørgensen 2013: 53–56).
3. The YouGov panel is a user panel with more than 90,000 self-registered Danish respondents.
4. These ndings are part of the survey but not included in the report (DIHR, 2019).
5. Jürgen Habermas’s normative and inuential ideal of the “public sphere” has been widely criticised for
its lack of attention to structures of inequality; for example, the absence of women, and private matters
of public concern in the public sphere.
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