In 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 Google 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 internet 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. (more…)