Big Tech Poses a threat to Free Expression

-- By AbdullahiAbdi - 12 Mar 2022

Introduction

In this essay, I will explore how big technology companies such as Facebook, are undermining the right to freedom of expression especially in relation to their inconsistent moderation policies.

Freedom of expression is one of the most protected human rights by both domestic and international laws, not only because of its particular importance to enhance democratic norms but also as a key right that makes other freedoms including the freedom of assembly and association possible.

Article 19 of the Universal Declaration of Human Rights (UDHR) states “everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. Article 19 of the International Covenant on Civil and Political Rights (ICCPR), states “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.”

The First Amendment of the US Constitution also protects freedom of expression including free speech. It guarantees freedom of expression by prohibiting Congress from restricting the press or the rights of individuals to speak freely.

The First Amendment prohibits the State from restricting freedom of expression, but not from non-state actors such as private companies like Facebook. The evolution of media technology including the internet and how it transformed public square is proving to be problematic. This is because most of the main communication platforms where people rely on to access information and express opinion, are controlled by a number of technology companies who seem to wield a lot of power in controlling, managing and restricting free expression. One can argue that the current legal framework in the US regulating free speech is inadequate because it assumes the government to be the only regulator of the marketplace of ideas. The private actors such as Facebook are themselves governors of the marketplace of ideas. They control and choose who can speak and how those who use their platforms may speak.

Problems of the moderation policies

Because the current legal regime under the First Amendment does not apply to these big tech companies, they seem to have a free license to censor content, limit diversity of expression and manipulate public opinion at their own will. The tech companies often do so by using content moderation policies which are formulated and interpreted by the owners of companies. In the case of Facebook – the Facebook oversight board. In this essay, I will focus only on Facebook and will describe the shortcomings of its moderation policy and how it curtails free expression.

Before I joined Columbia Law School, I worked on a project that documented how authorities in Somalia manipulated Facebook by reporting journalists who were critical to the Somali government. Facebook responded by permanently deleting the accounts of those journalists. In all the cases, the suspension of the journalist’s accounts was final and there was no appeal against that decision. Journalists were informed that they violated Facebook Community Standards which almost all of them were not familiar with. I found that the accounts of those journalists were the main source of independent information to the Somali public. The deletion of their accounts hindered public access to information. This is problematic because censoring critical views on broad interpretation of community standards grounds that are not subject to public scrutiny limits free expression. The fact that in this case, government officials were involved in reporting the accounts to Facebook shows that there can be overlap in Facebook actions when it acts as a private company and when it colludes with States to censor free expression specially in jurisdictions outside of US. In that case, the question is whether we need government regulation and oversight over such behavior?

Another way Facebook uses to limit free expression is on incitement to violence grounds like their decision to ban former President Donald Trump following the insurrection at the US Capitol on January 6, 2021. While incitement to violence could be a ground to limit free expression there is inconsistency on how Facebook applies its content moderation policy. A few days ago, Facebook decided to allow some calls for violence against Russian invaders in Ukraine. This new policy also allows users to call for the death of Russian President Putin in some countries. This is not the only time Facebook changed its content moderation rules. It previously created an exception to its hate speech rules for world leaders but was never clear which leaders got the exception or why.

Recommendations

Since Facebook is an important forum of mass communication and its policies could impact millions of people across the word, there should be some transparency mandate about their policy formation. Such mandate should require Facebook to share more information to the public, researchers and government on how they are making content moderation policies. Their ability to allow their platforms to be used to call for incitement and spread misinformation should also be subjected to scrutiny.

Facebook should also not allow itself to be manipulated by government officials to restrict free expression of critical voices to governments. There should be increased due diligence when assessing purported infringement of Community Standards. Lastly, there should be a clear appeal process for individuals including journalists, human rights activists and even politicians whose Facebook accounts are suspended or permanently deleted.

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