In the end of last year, specifically, during and in the aftermath of the US presidential elections, big technology companies censorship practices caught a wide and intense attention. This was especially true when Twitter suspended the account of the former president Donald Trump, after his tweets questioned the integrity of the voting process, claiming that it was subject to manipulation and forgery. Earlier, Twitter has suspended the New York Post’s accounts after posting links to reports published on the newspaper’s website alleging deals between the son of Joe Biden, the current USA president, and the Democratic candidate then, and Ukrainian companies with interests inside the US. Twitter had also constrained posting these links by other users, and eventually blocked them entirely. Facebook had also followed Twitter, blocking links to the reports.
Lately, during the Israeli aggression against the Gaza strip, and the Palestinians both withing the West Bank and territories occupied since 1948, Palestinian activists and their supporters all over the world have, as it became usual in the last few years, turned to social media websites for publishing their contents documenting the crimes of the Israel Defense Forces (IDF) and Israeli colonists, including air strikes, attacking protesters and civilians, etc. As well as raising awareness of forced evictions of the people of occupied Jerusalem, and Sheikh Jarrah neighborhood in particular. While Palestinian activists and their supporters have previously experienced difficulties where some of their posts were removed and some pages or personal accounts were suspended, this time the rate of such practices, especially on photos and videos application Instagram, as well as on its parent company website Facebook, was much larger than any similar period before. This was in parallel with an outcry of Middle East Facebook users experiencing a considerable increase in the rate of censorship practices, leading to partial or total suspension of many users’ accounts for varying periods and up to a whole month in many cases.
The tremendous importance gained by social media and their applications throughout the last years, especially with the rapid spread of smartphones, has created a new reality lived by billions of people around the globe, thus affecting all aspects of their lives, and in particular enjoying their basic rights and freedoms, with the right to privacy and the right to freedom of expression in the forefront. The incidents mentioned above raise many questions about the power wielded by big tech companies owning and running the most used social media platforms, over the ability of their users to practice the right to freedom of expression through these platforms.
How to judge a practice to be a preach of the right to freedom of expression?
In principle, judging a practice to be a preach of a right, has nothing to do with who practiced it. This means that, whether the practicing party is the state through its laws or by one of its institutions, a private entity, a group, or an individual, the criteria used to categorize the practice as a preach of a right are the same. What differs is whether the preacher is obliged by law not to preach that right, and thus is liable to pursuant procedures.
The major source for a definition of the right to freedom of expression is the International Covenant on Civil and Political Rights of which Article 19 states in its second paragraph that:
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
A violation of the right to freedom of expression is committed specifically when preventing or obstructing the practice of such acts by a person, and when preventing or obstructing access to their products. That is to say that in principle, not allowing a person to publish a text, a photo, or an audio or video clip through a social media website is considered a violation of his/her right to freedom of expression, unless whatever he/she published fits the conditions for constraining this right as per the third paragraph of the same mentioned article of the covenant:
The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order, or of public health or morals.
As content publishing platforms are transnational, their owning tech companies are either obliged by local laws of their home country, or the laws of the country where the content creator lives. Accordingly any practice by the company managing one of the content publishing platform, should not exceed the constrains imposed by the laws of either its home country or the one where the content creator lives. However, as laws regulating the practice of the right to freedom of expression are different throughout the world, and usually constrain it in different ways, it is our concern that any regulations used by content publishing platforms are, at least, compatible with the basic rules and values of the international covenants, charts, and treaties.
Non-binding international treaties
The major framework protecting human rights is the one developed by the UN, first, through its General Assembly, of which the Human Rights Council is a subsidiary, and through the Office of the High Commissioner of Human Rights (OHCHR), as well as, the committees of the major human rights covenants and treaties, which play a consulting and monitoring roles as per the treaties and their extending protocols, and subject to their ratification by different states.
This framework is basically oriented toward states. Up till the moment there are no binding human rights tools in general, and of freedom of expression in particular, applicable to other entities especially corporations and business enterprises. Till the seventies, there were no much interest on this level of rights protection work in looking into the practices of corporations, especially the transnational ones, and their impacting individuals and groups enjoyment of their rights, supposedly protected by international covenants and charts.
There have been many trials for establishing different frameworks for holding corporations responsible toward human rights. In 2000 the UN issued the Global Compact, that included 10 non-binding principles guiding corporations to develop socially and environmentally sustainable practice. Two of these principles were on human rights. The first states that business should respect and support the protection of internationally proclaimed human rights, the second states that corporations should make sure they are not complicit in human rights abuses.
The UN sub-commission (the body later replaced in 2006 with the Human Rights Council) tried to work on binding principles for business relationship with human rights. In the early 2000s it drafted the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (UN Draft Norms). However, this Draft Norms was not binding, and the commission has also scuppered them later. It still has been the first trial of issuing binding norms for business.
After the failure of the UN Draft Norms, the UN Secretary-General, Kofi Annan, appointed John Ruggie as UN Special Representative on Business and Human Rights (UNSR on BHR). During his first term Ruggie worked on developing the Protect, Respect, and Remedy framework, which set out a state duty against human rights abuses, a corporate responsibility to respect human rights, and the need for victims’ access to judicial and non-judicial remedies. In his second term, Ruggie managed to develop the UN Guiding Principles on Business and Human Rights (UNGPs), non-binding guiding rules that were endorsed by the UN Human Rights Council in 2011.
In 2014, a number of states led by Ecuador, proposed that the UN Human Rights Council establish an open-ended intergovernmental working group “to elaborate an international legally binding instrument to regulate, in international human rights law, the activities of transnational corporations”. The proposal passed with majority of 20 votes in support, against 14 votes in opposition, and 13 abstaining. The division among different states over this proposal actually reflects their interests. The countries of the South are mostly targets and arena for big companies activities that in many cases harm their citizens’ rights. On the other hand, countries of the North are home to most of these companies and thus benefit from maximizing their profits. Accordingly their interests imply absence of any constrains to companies’ practices that might affect their profits. Later on, the working group developed a Zero Draft of a binding treaty in 2018, that was reviewed in 2019, and 2020.
In conclusion the efforts for proposing a binding treaty that holds corporations in general to specific obligations concerning human rights still have difficulties. The fate of the current draft is obviously not guaranteed. It might follow the previous failing attempts. In case it succeeds, such treaty would take a long time to be ratified by enough states to become activated. There will always be a chance that essential states would refuse to become party to it, especially the homes of big corporations, thus not committing them to the obligations stated in the treaty. However, what concerns us here is the fact that the idea of holding corporations to respecting human rights in general, through an international treaty is feasible, even though it still faces several obstructions right now. It should take a lot more pressure by interested states to achieve this goal, besides the UN relevant bodies, and concerned NGOs.
Many non-governmental entities make a lot of efforts for working on the protection of Internet users rights and especially their right to freedom of expression. Such entities include academic institutions, especially those specialized in law, technology and human rights, rights NGOs, and human and digital rights defenders. The field of work for these efforts differs from that of the UN system for human rights, as they necessarily can’t reach treaties or principles binding to any party especially big companies. They however depend on the principle of good faith, on one hand, and the incentive on the side of corporations to preserve and enlarge their users base, on the other. So, such efforts usually work through conferences and forums where representative of various parties are invited to reach together understanding about the norms of best practices that may be voluntarily adopted by corporations.
One of the most prominent similar conferences is the Content Moderation at Scale conference, held by the Law School of Santa Clara university, first in 2018. In its second year the participants issued the Santa Clara Principles which outlines the first steps that the corporations moderating content created by its users, should take to offer an acceptable course of action to the users affected by content removal, or suspension and removal of accounts, and to guarantee that the implementation of such corporations guidelines for content can be just, unbiased, proportionate and respects users’ rights. These principles cover three essential aspects: numbers, notice and appeal.
The Number principles cover the need to the transparency of content moderation practices. The corporations moderating their users’ content should publish periodically clear and detailed statistics of the number of posts that were flagged or removed, as well as the accounts that were suspended or removed, along with categorizing these as per the rules violated and the source of the procedure taken, whether it was the management of the corporation itself, a request by a government, or a complaint by one or more users. The principle of Notice covers the necessity of notifying the user against whose content or account the procedure was taken, with the procedure, its causes, and the rule or rules requiring it. Generally, the corporation should offer its users, clear and accessible information about its content moderation rules, and the procedures taken in case of their violation, as well as the limits of its cooperation with governmental requests or complaints by other users’, individuals or entities that might be concerned with the published content. Finally, the corporation should offer the user affected by any moderation procedure a clear course of action for appealing this procedure with the possibility of canceling or modifying it, all withing clear, and accessible rules.
As previously mentioned, the similar voluntary work paths depend on good faith on the side of the corporations in the first place, but more importantly they depend on the effect of voluntarily committing to these principles on the users base. This in turn depends on the level of awareness of the content publishing platforms users concerning the impact of content moderation practices, especially censorship ones over their enjoyment of the right to freedom of expression. The practical and direct source of such awareness is of course are the procedures such users are experiencing such as having their posts removed or their accounts suspended. But their feeling of the need to have a proper reaction also depends on their appreciation of their right to freedom of expression, besides being annoyed by some procedure. This actually belongs to the area of the NGOs concerned with advocacy, and their responsibility to spread the needed information that make the users aware of their rights and what they should expect of the platforms they used in respect of such right.
On the other hand, there is a very important factor concerning the ability of the users to react effectively. This usually depends on how centralized are the content publishing services. Only a few platforms have the majority of the users. The more users a platform has the more attractive it is for new users, and the more difficult it becomes for users to move to another platform, even if they felt that it violates their essential rights. In the end, the act of content creation is based on the community feeling, i.e. the feeling of being a part of some community. The centrality of content publishing services or social media, is a problem of its own with many aspects that deserve a separate discussion.
Besides the formal international charts and treaties, by the UN and its institutions concerned with human rights, and the informal voluntary charts and principles on international level, there is the local framework related to the laws regulating the right to freedom of expression. This local framework differs according to the ability of enforcement, as the power of home countries over the companies registered in them differs from other countries power although the impact of these companies practices is not limited by borders as much as their platforms are used throughout the world. Some countries can only impose commercial sanctions or block access to platforms within their territories when in preach of their laws. The impact of such sanctions differs according to many criteria, and thus there are no real guarantees for the efficiency of local laws. On the other hand the centrality of content publishing platforms over the Internet has recently raised the concerns of legislators and executive officials in important countries like the USA, being home of most big tech companies, the failure of legal attempts to dismantle the monopoly of companies like Facebook over the market of content publishing through buying the competition, has led to awareness of the limits of the current laws when it comes to dealing with this phenomenon. A new approaches are being explored to modifying the laws. Once again there are so many details in this area that is worth a separate discussion.
The purpose of this paper was to answer the question: is it possible to enforce clear principles for protecting the right to freedom of expression, under the almost full control of big companies of the platforms through which the network users practice this right? We have explored the current situation of making such potentiality a reality, whether within the formal international framework and through the rights system of the UN, as well as withing the non-binding voluntary, and local frameworks. The present scene is surely not pleasing. In principle, the traditional legal frameworks are obviously limited, whether they were international or local which prevent them from dealing effectively with the challenges posed by the technologies of communications and content publishing through the Internet websites and applications. There is differently a need to developing legal frameworks taking into consideration the new conditions and relations created by these technologies which differ tremendously from the former ones. There are many obstacles relevant to economic and political interests, in the way of setting up a binding framework for protecting the right to freedom of expression and the principles and values of human rights in general, as well as the resisting the absolute power of big tech companies over the Internet users enjoyment of such rights. The persistence of efforts, some of which we explored in this paper, might give us hope of the coming true of the promise of the Internet to become a major factor of the expansion of the public sphere, allowing everybody access, where they can equally enjoy their right to express their ideas, aspirations, and hopes, and participate in creating a better future.