Should corporations *really* be the arbiters of free speech?

Facebook, Twitter, YouTube and Microsoft – in partnership with the European Commission – have unveiled a new code of conduct regarding hate speech.  This commitment is part of the response to the Brussels terrorist attacks, and is explicitly targeted at countering what can best be described as “terrorist propaganda”.

Hate speech, for these purposes, is set out in Framework Decision 2008/913/JHA of 28 November 2008, and is focussed on “racism and xenophobia”, which are recognized as “direct violations of the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of law, principles upon which the European Union is founded and which are common to the Member States.”

The Framework Article 1 sets out the offences:

(a)  publicly inciting to violence or hatred directed against a group of persons or a member of such agroup defined by reference to race, colour, religion, descent or national or ethnic origin;

(b)  the commission of an act referred to in point (a) by public dissemination or distribution of tracts, pictures or other material;

(c)  publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7, and 8 of the Statute of the International Criminal Court, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group;

(d)  publicly condoning, denying or grossly trivialising the crimes defined in Article 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 August 1945, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group;

Under the Code of Conduct, these technology and social media companies commit to reviewing and acting upon notifications for removal of hate speech—removing or disabling access to such content within 24 hours. 

They also commit to educating and raising awareness with their users about the types of content not permitted under these rules and community guidelines.

Call me a cynic, but while I applaud the idea, I don’t have a lot of faith in its implementation.  We’ve witnessed years of vitriol and hatred based on sex, gender, gender identity and expression, and sexual orientation play out online, without much progress in disrupting or addressing it. Certainly the various platforms and companies haven’t been particularly effective in either educating or protecting users. Even when reporting tools and standards are in place, their application has tended to be fairly arbitrary and unreliable.

Apparently I’m not the only one with concerns about this – European Digital Rights (EDRi) and Access Now released a contemporaneous statement announcing the “…decision not to take part in future discussions and confirming that we do not have confidence in the ill-considered ‘code of conduct’ that was agreed.”

EDRi and Access Now’s concerns are not with effectiveness – they cut deeper, questioning both the process by which the code was developed, and the effect of the code:

• creation of the code of conduct took place in a non-democratic, non-representative way; 
• the “code of conduct” downgrades the law to a second-class status, behind the “leading role” of private companies that are being asked to arbitrarily implement their terms of service; 
• the project as set out seems to exploit unclear liability rules for companies; and 
• there are serious risks for freedom of expression since legal but controversial content could be deleted as a result of this “voluntary” and unaccountable take-down mechanism.

The two organizations emphasize that their separation from the project (and process) should not be construed as indicating a lack of commitment to the underlying aims – as they state:

[c]ountering hate speech online is an important issue that requires open and transparent discussions to ensure compliance with human rights obligations. This issue remains a priority for our organisations and we will continue working for the development of transparent, democratic frameworks

How do we do this going forward?

Must we keep technology companies on the boundaries of the protection battles?  Or keep their efforts separate from those of under law?

Could tech companies work with (and within) the law?  Can they do so without effectively becoming agents of the state? 

And no matter how we organize ourselves, how can we make such codes and commitments more than lip service – how can we create and encourage efficacy in their application?  Perhaps more to the point, how do we inculcate a real understanding of the price and prevalence of hate speech (of all sorts) in these spaces such that strategies and solutions are developed with an accurate understanding of the issue? 

It IS time to address issues of hate speech and risk/danger online.  It is also time, however, to do so appropriately – to go back to the drawing board and, via broad consultation an authoritative, transparent and enforceable process should be developed and implemented.  One that, at a mimimum:

• Recognizes the key role(s) of privacy Identifies civil rights and civil liberties as key issues 
• Builds transparency and accountability into both the development process and into whatever strategy is ultimately arrived at 
• Ensures a balanced process that includes public sector, private sector, and civil society voices are heard. 

So…let’s start by establishing a multi-stakeholder engagement process tasked with defining the parameters and needs of hate speech protection and developing attendant best practices for privacy, accountability and transparency within that process.   Once that design framework is agreed to, it will be much clearer how best to implement the process; and how to ensure that it is appropriately balanced against concerns around freedom of expression.

Oh, and while we're at it?  If we're going to finally come up with an effective way to address these issues, then let's include sex, gender, gender identity and expression, and sexual orientation into our definition of hate speech while we're at it.  We know we need to!