Perspective: ExtremismNew UN Report on Online Hate Speech

Published 28 October 2019

Mark Zuckerberg, Facebook’s CEO, recently gave a highly promoted speech about the importance of protecting freedom of expression online—which was immediately criticized as taking too binary a view of the issues and presenting a false choice between free expression and Chinese censorship. Evelyn Douek writes that by contrast, David Kaye, the United Nations special rapporteur on the promotion and protection of the freedom of opinion and expression, in a 9 October report, offered a very real reckoning with the trade-offs involved in protecting free speech while dealing with the real harm caused by some forms of expression, and is an attempt to find guiding, consistent standards. “There is still a lot of work to be done, not least by the companies themselves, to make this a reality,” Douek writes. “But this latest report will be a useful and influential guide in that process.”

David Kaye, the United Nations special rapporteur on the promotion and protection of the freedom of opinion and expression, recommended in June 2018 that social media companies adopt international human rights law as the authoritative standard for their content moderation. Before Kaye’s report, the idea was fairly out of the mainstream. But the ground has shifted. Since the release of the report, Twitter CEO Jack Dorsey responded to Kaye agreeing that Twitter’s rules need to be rooted in human rights law, and Facebook has officially stated that its decisions—and those of its soon-to-be-established oversight board—will be informed by international human rights law as well.

Evelyn Douek writes in Lawfare that now Kaye has a new report, released Oct. 9—a timely evaluation of one of the biggest challenges in the regulation of online speech. She writes:

Despite some tech companies expressing openness to Kaye’s approach, in general these companies continue to manage “hate speech” on their platforms, as Kaye notes, “almost entirely without reference to the human rights implications of their products.” And it remains unclear how these standards, developed for nation-states, can be put into practice in the very different context of private companies operating at mind-boggling scale and across a wide variety of contexts. These questions are the central concern of Kaye’s latest report, which evaluates the human rights law that applies to regulation of online “hate speech.”

She adds:

International law permits the limitation of freedom of expression only where necessary to protect the rights or reputations of others, national security, public order, or public health or morals (Art. 19(3) ICCPR). How companies are to assess these interests remains an open question. Importantly, Kaye clarifies that “companies are not in the position of governments to assess threats to national security and public order, and hate speech restrictions on those grounds should be based not on company assessment but legal orders from a State.” This essentially means that companies should restrict hate speech only where that speech interferes with the rights of others, such as incitement to violence that “threatens life, infringes on others’ freedom of expression and access to information, interferes with privacy or the right to vote.” To give users greater notice and transparency about how these interests are accounted for and company rules are applied in practice, Kaye again urges companies to develop a kind of “case law” of examples of how their policies are enforced.

Douek concludes:

Mark Zuckerberg, Facebook’s CEO, recently gave a highly promoted speech about the importance of protecting freedom of expression online—which was immediately criticized as taking too binary a view of the issues and presenting a false choice between free expression and Chinese censorship. By contrast, Kaye’s report is a very real reckoning with the trade-offs involved in protecting free speech while dealing with the real harm caused by some forms of expression, and is an attempt to find guiding, consistent standards. There is still a lot of work to be done, not least by the companies themselves, to make this a reality. But this latest report will be a useful and influential guide in that process.