Facebook Under Scrutiny: Exceptions for Journalistic Interest and Political Speech

Given the importance of issues such as freedom of expression, surveillance and privacy, policing, and private and public censorship at this particularly critical moment both globally and locally, we are republishing an article that we believe is relevant, insightful, and timely.

By Agustina Del Campo and Javier Pallero June 16, 2020

A More Permissive Stance Toward Political Speech In an interview in late September 2019, Nick Clegg, Facebook’s Vice President of Global Affairs and Communications, announced changes to the social network’s policies on speech moderation and exceptions based on journalistic value. The full speech and the main points of the announcement can be found here: https://newsroom.fb.com/news/2019/09/elections-and-political-speech/ In this update, Facebook decided to

not apply its election information fact-checking procedures to posts and ads by politicians (although it will penalize them for sharing third-party content previously identified as false);
not to remove content that violates its Community Standards when that content is authored by politicians. In the latter case, the exception applies only to posts and not to paid ads on the platform (which will continue to be subject to the platform’s rules). The company’s rationale for exempting politicians’ speech from its content moderation rules is to promote public debate by protecting expressions that may be of journalistic or public interest based on who is making them. On the public interest exception: Some Criticism of the Decision Immediately following this announcement, critical voices were raised regarding various aspects of this decision. First, there was opposition to the distinction between statements made by public officials and those made by other individuals as a central element in determining public interest. Undoubtedly, whether a person holds public office cannot and should not be the sole factor to consider when determining whether content is in the public interest. This criticism is, in our view, valid. Added to this concern are others related to practical aspects of interpreting the policy, such as determining which politicians would be covered by the measure. Does this apply to public officials or to politicians in general? While candidates clearly fall under the definition, is a broad interpretation of political actors—one that includes activists, union leaders, or social leaders—possible? Finally, other critics warn that Facebook’s new interpretation and application of the policy amounts to a “privilege” being granted to public officials, which consequently amounts to discrimination against other users. Those who argue this maintain that politicians’ speech would enjoy greater protections on the social network than that of ordinary citizens. An Unjustified Privilege or a Step in the Right Direction? While we agree with some of the points raised in the criticisms we have just outlined, we believe that the measure adopted by Facebook constitutes a first—albeit imperfect—step in the right direction. This is especially true insofar as we view this change as part of a broader process to determine, with greater precision and less discretion, what constitutes content of journalistic or public interest. Facebook’s discretion in making decisions regarding newsworthiness exemptions to its terms of service is one of the criticisms we have shared and amplified in recent years. Cases such as the removal of the photo of the “Napalm Girl” a couple of years ago, the blocking of videos linked to acts of police violence, and the takedown of content documenting terrible human rights abuses around the world have raised legitimate concerns within the international community. Although Facebook restored the content in each of these cases, citing errors in the implementation of its policies, the reality is that the company lacks specific criteria that would allow it to distinguish content of journalistic interest from other types of content. This is not true only for Facebook; rather, it is a problem that, until recently, affected virtually all internet companies that moderate third-party content. In this context, establishing a rule that a priori determines that all content posted by a “politician” is presumed to be in the public interest—and thus, in principle, falls under the journalistic interest exception—seems like the right first step. Speech by Public Officials and the Public Interest According to the company’s own reasoning, the speech of politicians and public officials—particularly those in high-ranking positions—is among the most subject to public scrutiny, both online and offline. This idea is correct. The dissemination of this speech is not only in the journalistic interest but also in the public interest. Such collective scrutiny is useful not only for those who agree with the substantive message expressed by the official but, even more importantly, for those who do not share that message. The public dissemination of public officials’ statements is the measure that enables reflection, rebuttal, counter-discourse, and accountability (understood as the official’s responsibility for their own words). This is why, even among those who propose the questionable “right to be forgotten” on the internet, the statements and actions of public officials are considered exempt from its application. In this regard, it does not seem reasonable that public officials can compel information intermediaries to hide what they have done or said in matters related to their official duties or public statements. So, if online information intermediaries should not be forced to remove objectionable content regarding politicians’ statements, is it desirable for them to do so based on their own terms of service? As we noted earlier, there is information of public interest that should circulate online, even if the terms of service of private platforms deem it inappropriate (recall the cases of the “napalm girl” and others mentioned above). It is necessary to clarify when a public-interest exception applies, and in this regard, the case law of the Inter-American Court of Human Rights helps us understand that discourse “about” and “by” politicians qualifies as such. These decisions aim to protect those who criticize the powerful, freeing them from the threat of damage claims based on capricious interpretations of how that criticism is expressed. And an essential prerequisite for public criticism is the ability to learn about and stay informed regarding the ideas of politicians and public officials. Thus, the discourse of those in power must also be understood a priori as being in the public interest. It should be clarified at this point that the process is different when it comes to illegal content. If a judge finds that content is illegal or harmful and establishes further liabilities (including removal), those orders must be complied with. We are referring here to content that, while not illegal, is questionable in the context of political debate—such as falsehoods or violent rhetoric that do not constitute clear incitement. There are international standards regarding the liability that public officials may face for excesses or abuses in the exercise of their freedom of expression. In its case law, the Inter-American Court condemns abuses by public officials and, in many cases, even establishes much more restrictive standards of care regarding speech for public officials than for the general public. These stricter standards of care reflect the position the person holds, but they always assume that the statements made by public officials and politicians are in the public interest. Conclusion From this perspective, it seems necessary to establish a presumption within the company that all organic content posted by a “politician” is, a priori, in the public interest. However, questions remain regarding what constitutes a politician? How do we define them? And how do we identify them—these are serious shortcomings in this initiative. Similarly, the company’s policy cannot and should not, as we noted above, limit the public interest exception to content generated by “politicians.” On the contrary, it should explicitly include content aimed at exposing human rights violations; content that, due to the national or local context in which it arises, requires public attention, among other possible examples. _“Democratic oversight by society through public opinion fosters transparency in government activities and promotes accountability among public officials for their administration, which is why there must be a greater margin of tolerance for statements and assessments made in the course of political debates or regarding matters of public interest.” _Inter-American Court of Human Rights Authors: Agustina Del Campo and Javier Pallero