Censorship Creep Is Setting In As Social Media Companies Try To Stay Ahead Of European Lawmakers

from the all-the-speech-you-want,-except-maybe-far-less-than-that,-actually dept

Law professor Danielle Citron -- best known at Techdirt for her attacks on Section 230 immunity -- has written a paper attacking Google, Facebook, etc., but not for the reasons you might think. Her paper [PDF] points out policy changes that have been made by several tech companies not in response to users or US government activity, but to get out ahead of increasing regulatory pressure in Europe. In the recent past, these platforms routinely defended the rights of everyone around the world to engage in free speech, even if that meant offending local governments. Now, with the internet headed towards enforced Balkanization backed by hefty fines, US companies are now routinely engaging in preemptive censorship of content perfectly legal in the US (and arguably legal elsewhere).

More recently, social media companies have revised their speech policies concerning extremist and hateful expression. Unlike previous changes, however, these revisions were not the result of market forces. They were not made to accommodate the wishes of advertisers and advocates. Instead, they were adopted to stave off threatened European regulation. After terrorist attacks in Paris and Brussels in late 2015, European regulators excoriated tech companies for failing to combat terrorist recruitment on their platforms. Their message was clear: online platforms would face onerous civil and criminal penalties unless their policies and processes resulted in the rapid removal of extremist speech.

As Citron points out, much of the content being taken down by Google and others isn't even illegal under more extreme speech laws passed in European nations. The laws written in response to tragedies have managed to turn social media platforms into tools of government oppression.

All of this might enjoy some justification if EU regulators focused their efforts on speech proscribed in their countries. But this has not been the case. Calls to remove hate speech have quickly ballooned to cover expression that does not violate existing European law, including “online radicalization” and “fake news.” EU officials have pressed a view of hate speech that can be extended to political dissent and newsworthy developments. At risk is censorship creep on a global scale.

Companies headquartered in the nation with the most free speech protections are turning their back on protecting free speech. Overblown fears of radicalization have resulted in the removal of content with inherent journalistic value (not to mention possible investigative value) and efforts to clamp down on something no one can seem to define ("fake news") is turning American companies against American values. While there is something to be said about taking steps to prevent the spread of terrorism, the attack on "fake news" presents a real threat to free speech, when all that's at stake there is the careers of politicians and their spin doctors.

The paper notes that it isn't just current laws forcing this change. It's the threat of even more direct regulation of internet service providers. To head off more draconian measures, platforms are trying to guess what lawmakers might find offensive, often aided by moderation-via-heckler's-veto: policing content reported by users. The results have already been disastrous, turning European regulation of speech into darkly-comic embarrassments.

What's being targeted by these haphazard efforts are topics of conversation where more speech, rather than less, would be extraordinarily useful. Terrorism is worldwide problem but a bunch of memory-holing isn't going to make it go away. Convincing those inclined to radicalization to step away from the precipice takes social interaction, as much of it public as possible. If nothing else, a social media paper trail can help track down those who've decided to do harm to others.

The same goes for "fake news." It needs fact-checking, debunking, and rebuttals. Simply making it vanish only further convinces those already swayed by fake news that the content of removed articles must be so full of truth, the government/Big Tech/George Soros paid to have it deleted from the public consciousness. Efforts like these breed conspiracy theorists, rather than deter them.

And it's not just about what's already happening, no matter how disturbing that is. It's what will happen if tech companies don't reverse course and stop acquiescing to every request to engage in further content moderation. Mission creep will set in, pushed along by legislators who'd like to see all sorts of speech they don't like removed from the internet.

Without clear guidelines and specific examples, vague terms are vulnerable to revision and expansion. Consider the Code’s definition of “illegal hate speech”: speech inciting violence or hatred against a group or a member of such a group based on race, religion, national, or ethnic origin. Inciting hatred against a group is an ambiguous concept. It could be interpreted to cover speech widely understood as hateful, such as describing members of a religious group as vermin responsible for crime and disease. But it could also be understood as covering speech that many would characterize as newsworthy. Given the term’s ambiguity, incitement of hatred could extend to criticism of Catholics for covering up priests’ sexual exploitation of children. It could be interpreted as applying to speech challenging Islamic fundamentalism for its homophobia or suppression of women. It could be extended to speech exposing hatred faced by racial minorities.

The lawmakers who've set this system in motion can't be trusted to rein it in before it causes real damage. As Citron notes, they haven't been honest and open about their intentions to this point. There's no reason to believe honesty and transparency are just over the horizon.

Despite the protestations of EU regulators, they are neither voluntary nor the product of meaningful public-private partnerships. Instead, they are the result of government coercion occurring outside the rule of law. What is different about the pressure from states now is that it has brought about changes that risk worldwide censorship creep. Because governments are using terms of service to achieve their ends, the resulting suppression of speech will be global.

The internet is the world's greatest communications tool. It's no wonder so many governments seek to control it. That part isn't surprising. What is both surprising and horrifying is how accommodating major platforms have become. While it's understandable they're uninterested in losing large numbers of users in other countries, they've made decisions to block or delete content that isn't illegal in many of the countries affected by these moderation efforts. What is blocked as "clear" violations of some country's law isn't so clear when given a second look. Even the most heinous terrorism-related posting has value outside of its recruitment drive purpose. The public deserves to know what's being done to humans around the world in the name of major religions.

Hate speech -- something nearly as poorly defined as "fake news" -- has its own value, although little of it is in the words said. It helps those targeted identify possibly dangerous bigots. It lets everyone else know how little value this person adds to a discussion. If it's deleted and its purveyors' accounts suspended, it only serves to harden their hatred and inflate their perception of themselves. Instead of being ignorant and useless, they'll feel they threaten the status quo with the powerful truths, hence the censorship and "persecution" by powerful corporations and governments.

More speech is always better than less speech. But the snowballs rolling downhill from Google, Facebook, and Twitter are gathering speed. And those who feel the only speech worth protecting is speech they like are winning, in some cases without even having to lift a legislative finger.

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Filed Under: censorship, censorship creep, danielle citron, eu, free speech, hate speech, intermediary liability, social media