the Irish for rights

YouTube, Facebook, and the responsibilities of intermediary gatekeepers

YouTube logo, via YouTubeIn my previous post, I argued that, as a matter of principle, the controversial American anti-Islamic video should not be censored. The most obvious form of censorship comes from government action, such as legislation banning speech, but that does not arise in this case. Less obvious, but no less insidious, was the White House request to to re-consider whether the video breached YouTube rules. This was not a formal ban, and Google declined to take the video down in the US, but it did block access to it in in Egypt and Libya. This raises two important questions about the structure of free speech. First, in the online world, where most of us access the through a range of intermediaries, government censorship does not necessarily need to target the disfavoured speech; it need only target the intermediaries. Very few US companies would feel able to decline a request like that from the White House, and Google are to be commended for standing firm in those circumstances. Second, these intermediaries now have a great deal of practical power over online expression – not only can they be co-opted by government as agents of state censorship, but they also have the capacity to act as censors in their own rights, as Google did in their unilateral action to block access in the Middle East.

Such intermediaries are effectively gatekeepers are those who enable – and control – our access to that information, and this raises profound issues of principle about the role of intermediary gatekeepers in the structure of free speech about which I have written on this blog (here | here | here). At present, such intermediary gatekeepers are all private entities, operating to their own rules, and it is not at all clear how they can be made accountable to their users or the wider public for their private actions. Given the practical, social and legal issues that arise in policing content in such a quasi-public sphere (pdf), it has been argued that search engines and other intermediaries should have public interest obligations, perhaps by analogy with common law duties that govern public utilities (pdf). In particular, free speech norms should not only be about protecting speakers against a heavy-handed state but also about protecting speakers and readers against heavy-handed intermediate gatekeepers. This debate is now being played out online and on the op-ed pages of US news papers. Take, for example, the Washington Post:

Google’s restricting of anti-Muslim video shows role of Web firms as free-speech arbiters

Google lists eight reasons on its “YouTube Community Guidelines” page [here] for why it might take down a video. Inciting riots is not among them. But after the White House warned Tuesday that a crude anti-Muslim movie trailer had sparked lethal violence in the Middle East, Google acted.

… Legal experts and civil libertarians, meanwhile, said the controversy highlighted how Internet companies, most based in the United States, have become global arbiters of free speech, weighing complex issues that traditionally are the province of courts, , and occasionally, international treaty.

The legal experts quoted in the article include Tim Wu (whose masterful book, The Master Switch, examines just these kinds of issues), Andrew McLaughlin (formerly of Google and the White House), Jennifer Granick (Director of Civil Liberties at the Center for Internet and Society at Stanford ) and Jonathan Zittrain (whose prescient book, The Future of the Internet — And How to Stop It, examines just these kinds of issues). Their collective point is this: intermediary gatekeepers represent a new potential for censorship, both by states acting on them, and by them acting on their own initiative; legal principles have evolved to cope with the former; they need now to evolve to cope with the latter.

Facebook logo, via FacebookThese issues arises many many times every day. By of further example, more humourously, but perhaps even more seriously, a similar spat occurred between The New Yorker magazine and Facebook. Both YouTube and Facebook require membership before data can be posted on the site, but YouTube can be searched by anyone, whereas access to most Facebook content is restricted to members. In many ways, this affords Facebook even greater scope for censorship than YouTube: not only can it control what is posted in the first place, it can also control what its users get to see. The facts of The New Yorker spat with Facebook are funny in all sorts of ways, but the issue relating to the structure of free speech is profound:


… we got temporarily banned from Facebook for violating their community standards on “Nudity and Sex,” by posting [a] Mick Stevens cartoon [featuring Adam and Eve, with dots for their nipples] … while female nipple bulging … is a potentially serious problem, with as yet no known cure, it also has no known victims. That is, unless you count freedom of expression, common sense, and humor.

You’ll have to head over their story to see the cartoon, but it is very innocent (as well as clever and funny). As Paul Alan Levy comments, this takedown “stands as a stark reminder of the fact that when so many members of the public have made Facebook “a key platform for expression,” we should remember how easily the arbitrary application of guidelines by relatively low-level staff can cut off important expression”. As Andrew Sellars points out, writing about the structural weakness of internet speech, intermediary gatekeepers have set the bar for free speech lower than America’s First Amendment, without much by way of a formal remedy against them where users feel aggrieved about access bans, take-downs, and other forms of censorship.

If intermediary gatekeepers are able to rely on free speech norms to resist government censorship, then they should respect exactly the same norms vis-a-vis their users. Until regulation exists to ensure this, the best way to achieve this end might well be to allow the users to rely directly upon constitutional rights as against the intermediary gatekeepers. Ironically, whilst this may be increasingly possible in European legal orders (see O’Cinneide (2003) 3(1) HLJ 77), but perhaps less so in the US, where the absence of state action on the part of the gatekeepers would preclude such a claim. It would be a fitting recognition of the importance of free speech online if the regulation of gatekeepers proved to be the context in which the US courts modified the state action bar for the emerging quasi-public sphere.

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4 Responses to “YouTube, Facebook, and the responsibilities of intermediary gatekeepers”

  1. Eoin says:

    By John Naughton in the Observer for Sunday 23 September 2102:

    When the cybermen serve as censors

    We can’t rely on YouTube and co to stand up for free speech

    What this means, as the legal scholar Yochai Benkler has pointed out, is that the safeguards to free speech ensured by the first amendment to the US constitution might not count for much in a public sphere built entirely of privately owned infrastructure.

    Facebook – or YouTube, for that matter – may look like public spaces but when it comes to the crunch they offer no more freedom of speech than the average shopping mall.

    There’s also a link to my post above, and I’m very very chuffed about that!

    Of the continuing torrent of commentary, two further pieces also stand out. First, in The New Republic, Tim Wu suggests a mechanism by which YouTube could police hate speech:

    When Censorship Makes Sense: How YouTube Should Police Hate Speech

    … A better course would be to try to create a process that relies on a community, either of regional experts or the serious users of YouTube. Community members would (as they do now) flag dangerous or illegal videos for deletion. Google would decide the easy cases itself, and turn the hard cases over to the community, which would aim for a rough consensus. Such a system would be an early-warning signal that might have prevented riots in the first place. …

    Second, in Slate, Eric Posner suggests that the problem may be that the US tolerates too much hate speech, rather than that the rest of the world tolerates too little:

    The World Doesn’t Love the First Amendment

    The vile anti-Muslim video shows that the U.S. overvalues free speech.

    … Americans need to learn that the rest of the world—and not just Muslims—see no sense in the First Amendment. Even other Western nations take a more circumspect position on freedom of expression than we do, realizing that often free speech must yield to other values and the need for order. Our own history suggests that they might have a point. …

  2. Eoin says:

    David Keane writes about The Innocence of Muslims on the Human Rights in Ireland blog:

    The Innocence of Youtube

    It is frankly astounding that the trailer has not been removed by Youtube. An analysis in the Digital Journal highlights the fact that Youtube is a private corporation and not a censor as such. It can therefore receive requests to remove material but is not obliged to accept them. If it does not, government Youtube bans can result.

    The Human Rights Committee recently issued a General Comment 34 on freedom of expression. It makes an important point in relation to internet sites and Article 19(3) of the International Covenant on Civil and Political Rights, which allows interference with freedom of expression for the protection of the reputation or rights of others:

    “Any restrictions on the operation of websites, blogs or any other internet-based, electronic or other such information dissemination system, including systems to support such communication, such as internet service providers or search engines, are only permissible to the extent that they are compatible with paragraph 3. Permissible restrictions generally should be content-specific; generic bans on the operation of certain sites and systems are not compatible with paragraph 3.” [paragraph 43]

    This seems to indicate that a generic ban on Youtube cannot be justified under Article 19(3). An interesting question is if a government has requested the removal of specific content, as is the case with The Innocence of Muslims, which the server or provider has refused, whether it is then justified in imposing a generic ban.

    His point about the HRC’s General Comment 34 is a good one, which re-inforces much of what I say in the post above. On the other hand, David seems less concerned than I am about YouTube’s private capabilities to take the material down, even if it cannot be compelled to do so. It is an interesting post, well worth reading in full.

  3. […] law lecturer, Eoin O’Dell, on YouTube, Facebook, and the responsibilities of intermediary gatekeepers (and here are the two pieces of research he refers to: “policing content in such a […]

  4. […] UP, 2015; summary), which I have discussed on this blog in the past (here | here | here | here | here). Laidlaw argues that these digital developments need a new system of human rights governance that […]

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Me in a hatHi there! Thanks for dropping by. I’m Eoin O’Dell, and this is my blog: Cearta.ie – the Irish for rights.

“Cearta” really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.

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