JUSTICE - No. 66
19 Spring 2021 platforms to reevaluate their hate speech policies and procedures. One can note, inter alia, the advertisement ban on Facebook coordinated by the Anti-Defamation League; 11 calls by American politicians from different political parties to set aside the section 230 immunity arrangement; 12 and the increased exposure of the platforms to legal liability in non-U.S. jurisdictions. Among recent developments that appear to emanate from the growing hostility to the traditional “almost everything-goes” standard applied by the online platforms, one may mention Facebook’s new policy on Holocaust denial content 13 and Twitter’s new policy on publication of misleading information. 14 The Role of International Human Rights Law It is in relation to efforts toward evaluating what, if any, further changes are needed in the regulatory framework governing the operations of online platforms that international human rights law plays an important role. This role includes indicating which governmental legal interventions are justified and which are excessive in nature. In a nutshell, an ICCPR-compatible regulatory framework adopted by states should require online platforms offering services to local users to effectively curb antisemitic speech and other forms of hate speech, while refraining from imposing excessive restrictions that would represent unjustified incursions on freedom of expression. The development and application of such a regulatory framework constitute part of the positive obligations that state parties have under the ICCPR: to protect persons under their jurisdiction against attacks that threaten their life or personal safety or constitute cruel, inhuman, or degrading treatment; or that violate their honor or reputation; or that infringe on their right to equality. 15 The expectation that states will require online platforms to develop and apply policies for curbing hate speech, while respecting the principle of free speech, involves a delicate equilibrium between freedom and limits on freedom. Such an equilibrium becomes even more difficult to maintain in light of the insight found in the Canadian Supreme Court’s Whatcott case that hate speech stifles discourse and public debate and is therefore anathema to the values defended by freedom of expression. 16 In other words, restricting hate speech may actually promote freedom of expression and should not be necessarily regarded as a limit thereupon. At the same time, there are real concerns that legitimate limits on offensive speech found in national regulation might result in a chilling effect on protected speech. 17 In other words, even necessary and proportionate limits on freedom of expression may generate undesirable results. Given the difficulty of establishing the equilibrium between protected and impermissible speech, the question of who strikes the equilibrium assumes great significance. Currently, this task is assigned primarily to the online platforms. This is clearly the premise underlying section 230 and its associated “Good Samaritan” arrangement; and it is also the approach envisioned under the EU Draft Digital Services Act, according to which the platforms should act expeditiously to remove illegal content, while respecting freedom of expression. In the absence of more specific guidance, the platforms would have to determine how to interpret and apply relevant legal standards in a way that would be respectful of international standards of freedom of expression. Otherwise, they will sooner or later face push-back from contrary national or international regulation. Current Community Standards and Oversight Procedures The stance adopted by the online platforms toward hate speech and the compatibility of their stance with international freedom of expression standards raises difficult practical questions. While all of the platforms have in place community standards and terms of use 11. Jonathan A. Greenblatt,“An Open Letter to the Companies that Advertise on Facebook,”ADL (June 25, 2020), available at https://www.adl.org/news/letters/an-open-letter-to- the-companies-that-advertise-on-facebook 12. Casey Newton, “Everything You Need to Know about Section 230: The Most Important Law for Online Speech,” T HE V ERGE (Dec. 29, 2020), available at https://www. theverge.com/21273768/section-230-explained-internet- speech-law-definition-guide-free-moderation 13. Monika Bickert,“Removing Holocaust Denial Content,” F ACEBOOK (Oct. 12, 2020), available at https://about.fb. com/news/2020/10/removing-holocaust-denial-content/ 14. Yoel Roth and Nick Pickles,“Updating our approach to misleading information,” T WITTER (May 11, 2020), available at https://blog.twitter.com/en_us/topics/product/2020/ updating-our-approach-to-misleading-information.html 15. ICCPR, Art. 2(1), 6, 7, 9, 17, 26. 16. Saskatchewan (Human Rights Commission) v. Whatcott [2013], 1 SCR 467. 17. See e.g. Leslie Kendrick,“Speech, Intent and the Chilling Effect,” 54 W M . & M ARY L. R EV . 2013,1633.
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