Who should limit freedom of expression on social media?

What does it mean to live in a democracy, if not to collectively decide the rules that govern our life in society and to have collective control over the means of enforcing these rules?

18 September 2023

We may have many different visions of how this idea of democracy should be translated into our constitution, but it seems to me that at least on this definition in the form of an objective to be achieved (what I call “the democratic ideal”), there can be agreement.

But if for many years I have been warning against the growing power left to the Web giants in our freedom of expression, it is precisely because I fear that we are neglecting what this power implies for our democracy.

It seems to me that in order to achieve the democratic ideal, freedom of expression is strictly a fundamental right; It is the foundation by which all of us can exchange ideas and information, share views, show disagreements, and then make informed decisions about the course of our collective life. As the European Court of Human Rights (ECHR) said in its famous Handyside judgment, freedom of expression is for a democratic society “one of the
essential conditions for its progress and the development of everyone
“. She went on to say, which should guide us all:

[La liberté d’expression] applies not only to “information” or “ideas” that are favourably received or considered inoffensive or indifferent, but also to those that offend, [mais] shock or disturb the State or any section of the population. This is the need for pluralism, tolerance and openness, without which there is no “democratic society”.

I am absolutely, viscerally attached to this vision and ambition, because I put the democratic ideal above all else. This does not mean, however, that freedom of expression must be absolute and that everything should be allowed to be said, everything should be allowed to be written, and no harmful expression should be prevented. This freedom has its limits, like most fundamental rights, imposed by the need to reconcile all rights.

But these limits also have their limits.
“Any ‘formality’, ‘condition’, ‘restriction’ or ‘sanction’ imposed in this regard must be proportionate to the legitimate aim pursued
,” the Court said. But how can we ensure, with the democratic ideal in mind, the proportionality of the restrictions imposed on the freedom of expression?

In a democracy, we have two fundamental instruments to ensure this.

The first is the legislator. It is he who, because he represents the whole people who has entrusted him with this power to say the law, determines the location of the limits not to be exceeded. It is therefore we, collectively, through our representatives, who set our own limits for ourselves, and who must ensure that they are proportionate to the goal we set ourselves, which is to allow life in society while respecting the rights and freedoms of everyone.

The second is the judicial institution. It is she who, when an individual or an institution considers that the limits set by the legislator have been exceeded, looks at where the limits have been set and looks at where the respondent is located. It analyses the situation, and renders a decision of sanction or acquittal based on this analysis, which does not vary according to its interests but is as objective and independent as possible.

Without a legislator and without a judicial institution acting in the name and on behalf of the people, there is no democracy.

It therefore seems essential to me to ensure collectively that the legislator and the judicial institution retain their full place in the regulation of freedom of expression where we now express ourselves most: on the Internet.

Historically, this has been a major concern when it comes to choosing what legal framework to bring to the regulation of expression on the Internet. I delved back into parliamentary debates during the review of the Digital Economy Confidence Act of 2004, which still serves as our legal bible on the subject. It was already a question, at the time, of knowing to what extent those who are not the authors, but the hosts of a statement, must replace the judiciary to qualify the legality or not of what is said, and prevent it from being said.

The words from the rostrum of MP Christian Paul still resonate in our current news:

With regard to the liability of hosts, you are thus repealing the provisions of the law of 1 August 2000 which left it to the judge alone to rule on the illegal nature or not of online content. Article 2 of the bill provides, in fact, that the responsibility of hosting providers may be engaged from the moment they became aware that they were hosting illegal content, that is to say even before they are seized by the judicial authority and, above all, without this being necessary from now on. As Cyril Rojinsky points out: “A simple technical service provider becoming a first instance of jurisdiction in an area as sensitive as freedom of expression, the thing seems difficult to accept. ”

Translating a directive must not obscure fundamental principles, republican principles. I am thinking of Article 66 of the Constitution, which refers to “the judicial authority, guardian of individual liberty … ” and Article 6 of the European Convention on Human Rights, which states that “everyone has the right to have his case heard […] by an independent and impartial tribunal” when, paradoxically, since it is a question of transposing a Community directive, it seems to have been forgotten.

How can we fail to mention here, in view of the virtual absence of litigation since the law of 1 August 2000 applied, the risk of insecuring again, and quite unnecessarily, technical intermediaries by making them judges of the content they host or to which they give access? Indeed, hosting providers and access providers subject to an imprecise liability regime will inevitably be inclined to seek the legal protection that the law no longer offers them by preventively removing content contested by third parties. The risk of censorship is obvious and freedom of expression is thus threatened.

If the Government were to choose to retain the provisions of the current bill, then the lesser evil would be to take into account two amendments. The first, also proposed by the rapporteur of the Committee on Economic Affairs, consists in clarifying the liability of hosting providers by holding them liable only in the event of ‘manifestly’ illegal content and no longer just ‘illegal’. The second, since recourse to the court would not be systematic, is to retain the proposal of the Internet Rights Forum, that is to say, to establish a procedure for notifying disputed content that would make it possible to bring illegal content to the attention of hosting providers.

Minister, ladies and gentlemen, the advent of the information society bears the seeds of democracy, but also, if we are not careful, those of arbitrariness.

At that time, not encouraging private companies to censor more than what is illegal within the meaning of the law passed by the legislator was a real concern. And in fact, the two propositions with which Christian Paul concluded have become the norm. For a very long time, hosting providers were content to remove only comments whose illegal nature actually seemed “manifest” to them, so without any possible doubt, after being notified by Internet users or by the authorities. They let the legislator set the limits, replaced the judicial authority only when recourse to it seemed really useless, and waited otherwise for justice to pronounce.

We are fifteen years later and today, things have changed. Social networks, which initially wanted to be simple hosts of the comments published by their users, and which therefore applied the same precepts as in 2004, have been pushed to a pro-active moderation of this content. The shaking of the hand of censorship, which was once seen as normal and necessary in a democratic society, has become because of the major role played by social networks in the propagation of certain ideas, unacceptable in the eyes of a growing number of citizens.

Popular pressure, journalistic and political, has led social networks to no longer necessarily wait for content to be flagged by third parties to moderate it, and to reduce the scope delimited by the limits of freedom of expression, giving respect for their private rules (the famous GCU or “community rules”) an increasing importance. Many of the remarks
“that offend, shock or worry the state or any fraction of the population”, which the
ECHR says must be accepted in order to live in a democracy, become targets to be shot down on social networks.

I hear that these social networks are private companies, and therefore they accept what they want at home, and exclude whomever they want. I hear that freedom of expression is the right to speak, not the obligation to provide a megaphone to be heard. I hear that social networks have a power to accelerate the dissemination of ideas unparalleled in human history. All of this is true. But by remaining at this level of comment to ask for the extension of censorship, do we keep in mind the democratic ideal and our concern to promote its existence?

It is not without problem to abandon any idea of guaranteeing freedom of expression on social networks, on the pretext that they are private companies.

As I wrote above, it is mainly under popular pressure that social networks have begun to moderate content more actively and no longer just censor what is against the law, but also what is contrary to their Terms (in the early years, it only happened to hide the pair of buttocks that Americans could not see). In a democracy, popular pressure translates into voting. But who voted to choose where to put the terminals on Facebook or Twitter? No one. It is the voice of those who shout their outrage loudest that prevails, not the voice of the majority. And who chooses when to note and punish the fact that the boundaries have been crossed? The very people who chose where to put the limits, who can be blamed depending on the circumstances, for not having put them far enough or close enough. And who decides to confirm or deny the first judgment? Again the same.

The separation of powers, which is another fundamental principle without which there is no democracy possible, does not prevail on social networks that concentrate in the same hands the powers to say the right (via their GCU), to police (with the pro-active monitoring of what is published), and to do justice (by receiving and investigating complaints, and choosing convictions).

Again, we can say that this is normal, that we do not model on a social network the reasoning that is the one we have for public spaces. There is no democratic management of a private enterprise.

But there are at least two pitfalls to this reasoning.

I quickly evacuate the first one, which can be debated endlessly. If I can easily admit that a forum of a few thousand Internet users does not have a prominent place in terms of freedom of expression that would force it to content itself with applying the law and nothing but the law, it seems to me that our view must be different when we talk about social networks that allow hundreds of millions of people, And even for the most important of them to several billion people, to talk to each other, to organize, to exchange information, to discover each other, to debate. Admittedly, this requires all the more vigilance to ensure that the boundaries are not crossed. But also, the more central a space of expression is and therefore difficult to circumvent, the more we should be concerned that everyone can express themselves within the limits imposed by the law, in our name, by the legislator. This would also apply the recommendations of the UN, which in its Guiding Principles for Business, states:

The responsibility of businesses to respect human rights applies to all businesses regardless of their size, sector, operating environment, ownership and structure. However, the scope and complexity of the means by which business disregard this responsibility may vary depending on these factors and the severity of the negative human rights impacts.

We must also not forget that censoring a man or a woman to no longer allow him to use a social network is not only condemning him or her. It means depriving all individuals who have registered there of the possibility of receiving the information it disseminated, whereas freedom of expression includes the freedom to receive information. The larger a social network is, the greater the chances of being read or heard by many of these people. The very strong power of network effects requires a much more nuanced reasoning in this regard than the easy liberal argument of ”
just go elsewhere

But above all, and I want to end with this, we are entering a dangerous zone for the future of democracy, and therefore of our collective ability to choose our laws and how we enforce them. Not only does the legislator, who votes laws in our name, no longer have control over the location of the limits of freedom of expression, which is a fundamental foundation of democratic life, but he also tends to encourage social networks to become legislators, police officers and judges at the same time.

This is the draft regulation called the ” Digital Services Act ” (DSA). This European text, which will be binding on all Member States when it is definitively adopted, includes the modification of the GTCU and the verification and sanction (automated or not) of their compliance as a fully-fledged mode of regulation. It encourages private platforms to define in their Terms of Use categories of content to be censored that the legislator acting on our collective behalf, has not yet deemed it useful or proportionate to make illegal in the public space.

If we think that the mega-platforms that regulate the expression of hundreds of millions of citizens are only a short parenthesis, it is probably not very serious to see us for a while the choice of what should be illegal and who should be condemned in terms of freedom of expression. But if we think that the very nature of a social network means that there will always be giants, and if we think that they will permanently replace the café du commerce and the village square, then we must ask the question of the regulation of their power to infringe on freedom of expression.

On this, we must open debates and reflections. It is not necessarily a question of going back to 2004 and not moving until a report has been made, and until the illegality is obvious. It may also be a question of thinking about imposing a democratic form of writing the platforms’ T&Cs, and para-judicial decision-making when they are violated. We are not in a binary choice between letting private platforms do everything on the pretext that they are at home on their lands that we occupy and cultivate by our data and our expressions, or having only the law and state justice to stop the discourses that can lead to the worst. The communes replaced the territories of the lords. If I dared, I would say that we can imagine electing or designating by lot large assemblies of Internet users who have their say on the laws that govern the common spaces of discussion that are the most important social networks.

Without going that far, let us at least preserve the key role that parliamentarians and governments play in democracy. Let’s act together, citizens and public authorities, so as not to encourage private platforms to take power over our freedom of expression. The risk, otherwise, is that they actually take it, and sustainably.

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