Should We Be Building Online Prior Restraint Machines?

Graham Smith warns of threats to freedom of speech from a rush to judgment that ignores any need for due process

We are living in an age in which there is intense pressure from every direction to make online intermediaries – or at least the social media platforms – police their users’ content and behaviour.

The demand is not merely to police. The European Commission’s Communication on Tackling Illegal Content Online, published in September 2017, wants platforms to act as detective, informant, arresting officer, prosecutor, defence, judge, jury and prison warder: everything from sniffing out content and deciding whether it is illegal to locking the accused material away from public view and making sure the cell door stays shut.

‘Accused’ is the vital word. Nowhere in the Commission’s scheme do we find a requirement for a competent authority to determine that the content in question is actually illegal.

Quite the opposite, in fact. The Communication kicks off by saying that online platforms should be able to take swift decisions on action about illegal content without a court order or administrative decision.

This stance contradicts the EU Council’s Human Rights Guidelines on Freedom of Expression Online and Offline (2014), which speak of the ‘need to promote international standards, including standards protecting intermediaries from the obligation of blocking internet content without prior due process’. The emphasis is not just on due process, but prior due process: before takedown, not after.

The Communication does not stop there. It wants platforms to:

  •  apply fully automated removal where the circumstances leave little doubt about the illegality of the material (for example where the removal is notified by law enforcement authorities)
  • remove content notified by so-called trusted flaggers without verifying legality themselves
  • adopt proactive measures to detect and remove illegal content, rather than reacting to notification
  • use fingerprinting tools to filter out content that has already been identified and assessed as illegal (by whom is not specified).

At no stage in any of this, let alone prior to takedown, is there a requirement for legality to be evaluated by a competent authority. The nearest the Communication comes is a suggestion that in cases of difficulty platforms could obtain third-party advice.

This approach goes against long-standing principles, forged in the offline world, in favour of due process and against prior restraint. It replaces those principles with a presumption of illegality: that content is guilty because accused.

Evaluation by a competent authority is an institutional matter. The police and similar bodies may be familiar with subject matter, but in the offline world we do not entrust them with the power to make binding decisions about what is and is not illegal. For good reasons we confer that power on the courts, or other independent institutions embodying due process.

One of those reasons is that human beings – let alone algorithms – legitimately disagree over what is and is not illegal. Especially with speech, potential illegality is hedged around with defences. In most areas there is no definitive right or wrong answer to the question of illegality that can be arrived at simply by examining content. Context – background information – is often determinative.

Many offences are vaguely defined. This is especially true of areas such as terrorist content and hate speech, where definitions are notoriously vague. Sometimes they are deliberately drafted over broadly, relying on prosecutorial discretion to prevent overreach (a safeguard that is lost in a scheme that does no more than consider the wording on the face of the statute).

We empower courts to make decisions with which, for better or worse, we can all abide. Why? Because courts and other independent tribunals have the necessary social legitimacy to make binding, enforceable decisions on questions of legality. That kind of legitimacy is something that commercial social media platforms can never attain, however much in the way of transparency, put-back and appeal procedures they are told to implement.

In response to the current barrage of criticism, the platforms are falling over themselves to be seen to be doing more, and to do it more quickly. And we now hear demands for content to be taken down within two hours of notification.

Independent due process is a hallowed principle offline, which we are in danger of abandoning online.

If the Commission’s Communication represents the future direction of policy, we are moving closer to a regime in which:

  • gateways are compelled to act as gatekeepers
  • prior restraint – suppression either prior to publication or prior to an independent determination of illegality – is institutionalised
  • content is assumed to be guilty because accused.

We are all familiar with the refrain that what is illegal offline is illegal online. But rather than transposing offline to online, a regime such as that advocated by the Commission abandons commitments to independent due process and against prior restraint that have characterised our historic attachment to freedom of speech in the offline world. We are at risk of building an online prior restraint machine, powered by speech suppression engines running on ‘due-process-free fuel’, the like of which has never been seen offline.

It was precisely to prevent that happening that the Electronic Commerce Directive was enacted nearly 20 years ago. Far from the Directive being obviously out-of-date or superannuated we, the users of the Internet, are now more in need of its protections than ever before.

The issues around online illegal content deserve better than simply repeating the mantra: ‘Here is something awful, something must be done, Silicon Valley must do it’. In particular, we should look at practical ways of introducing due process at source instead of shifting the responsibilities of government onto platforms.

Of course, due process at source, like any other approach, has to meet the challenge of scale. The perceived enormity of that challenge does not mean we should abandon foundational offline principles that are equally applicable online.

Graham Smith is a partner in Bird & Bird LLP and specialises in IT, internet and intellectual property law.

This article, which was first published on DigitalBusiness.Law (curated by Bird & Bird) is based on a talk given to the Westminster eForum on 16 January 2018. A fuller discussion of the European Commission’s Communication on Tackling Illegal Content Online can be found on Graham’s Cyberleagle blog here.

Published: 2018-01-22T12:50:00

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