The Legitimacy of the New Stewards of Public Debate.

In January 2021, following the storming of the U.S. Capitol by far-right protesters and 10 days before the end of his presidency, Twitter indefinitely suspended the @realDonaldTrump account.

In January 2021, following the storming of the U.S. Capitol by far-right protesters and 10 days before the end of his presidency, Twitter indefinitely suspended the @realDonaldTrump account, the 45th President of the United States, for violating its Terms of Service (ToS). Given his use of the account during the rally—where he insisted on his claims of election fraud and labeled those who had stormed the Capitol at that moment as “patriots”—the company determined that the now-former President was inciting violence and posed a threat to people’s safety. Facebook followed suit and also decided to suspend the account, but the measure was to remain in effect until the democratic transition was complete.Recently, it raised with its newly formed Advisory Board the possibility of suspending the account indefinitely. Google and Apple decided, for their part, to remove Parler—a social network known in the U.S. for its lack of moderation rules regarding hate speech and misinformation, where content from the insurgents was circulating—from their respective app stores; and finally, Amazon decided to terminate its hosting service, effectively taking the platform offline. The decisions made by internet companies during the first week of January are not unprecedented. In our region, Twitter and Facebook had already blocked content from President Bolsonaro in Brazil and Maduro in Venezuela. There had also been significant intervention by companies such as GoDaddy and Cloudflare,providers of hosting and digital security services, in moderating problematic speech in the context of the 2017 Charlottesville protests. And while there was no shortage of voices in Latin America (and in Europe) denouncing “CENSORSHIP!” in all these instances, the discussion is undoubtedly more complex. Private regulation of online content is a right guaranteed by the First Amendment to the U.S. Constitution and by Section 230 of the Communications Decency Act (1996). Internet companies based in the United States have the right to exercise their freedom of speech, including the right to refuse to allow certain content on their platforms. Furthermore, they are not liable for content posted by third parties or for their own decisions regarding which content to block. Content moderation—particularly regarding misinformation—has been on the rise, especially since the World Health Organization declared the pandemic in March 2020 and during the recent U.S. election cycle. This growing intervention is largely a response to demands from both governments and civil society concerned about phenomena such as disinformation, polarization, and the proliferation of discriminatory and hateful speech on the internet. However, even though they may be legally permissible, the blocks and suspensions implemented by internet companies in January have raised profound questions about the management of public discourse, the actors who should ideally be involved, and the rules that should govern it in democratic societies. The decisions made by Apple, Google, and Amazon in January 2021 reflect the application of content moderation practices to services that have not traditionally implemented such practices. These companies wield enormous control over the very existence of—and access to—content platforms of all kinds, including social media as well as health, education, banking, and management apps, among others. Companies like Amazon provide internet hosting services, without which a platform is effectively taken offline. The blocking of apps in the Apple and Google stores constitutes a barrier to users’ access to new platforms, hindering innovation and competition. In Google’s case, the precedent appears even more problematic, as some of its products compete directly with apps like the one the company recently decided to block. This precedent undoubtedly poses a threat to freedom of expression in the digital age, and there is an urgent need to deliberate and clearly define the obligations and responsibilities of these actors within the new digital ecosystem. But even the actions of platforms like Twitter and Facebook—which clearly fall under the logic of content moderation—are problematic in these cases and can even be uncomfortable for the companies themselves. Terms of Service (ToS) generally do not distinguish between different types of users nor do they fully establish how the few distinctions they do make are interpreted or applied, especially when it comes to political discourse and matters of public interest. While there are some rules that distinguish public officials and other public figures from other users, these distinctions are often made based on a logic that is different from—or even opposed to—that of human rights. The special protection that international human rights law requires for political and public-interest discourse is not fully established or defined for the purposes of content moderation. Undoubtedly, these platforms play a fundamental role in public discourse. They serve as a direct means of communication between high-ranking officials and the public they represent—a channel we did not previously have. Precisely for this reason, it is urgent to consider political content not only from the individual perspective of the freedom of expression of the official or candidate in question (their right to speak), but also from a broader perspective. We must also consider the right of others to learn about their opinions and ideas and to exercise necessary scrutiny over their representatives. Furthermore, we must recognize that statements made by public officials in the course of their duties constitute public information, subject to administrative and legal regimes that differ from those governing other types of information and ideas. Incorporating these elements into the debate on terms and conditions of service would help establish clear and replicable criteria not only for the U.S. but also for any other global debate regarding the speech of public officials. Furthermore, the traditional distinction between legal and illegal speech does not have a clear counterpart in the terms of service of internet companies. Even today, legal incentives are being debated—particularly in Europe—to encourage companies to further expand restrictions on speech that is legal but harmful in the definition of their rules. Terms of Service (ToS) indiscriminately include restrictions on both speech protected by the right to freedom of expression and speech that is not protected by that right. Furthermore, they often offer alternative definitions to existing international definitions of certain restrictions (hate speech, for example) and then interpret and apply these rules in a manner that also differs from that established by the case law of specialized courts. Professor Balkin argued recently that no matter which theory of free speech one subscribes to, the realization of the values associated with it depends on the creation, curation, and dissemination of knowledge by intermediary and professional institutions in which the general public trusts. Undoubtedly, such institutions have not yet taken root on the Internet. The legitimacy of these institutions to fulfill the functions Balkin assigns to them depends largely on the existence of clear standards—both public and private—that respect human rights and are predictable, scalable, and replicable. Legal incentives and self-regulation must work in tandem to prevent ambiguity, discretion, and opacity in the management of public debate, especially when moderated discourse involves speech in the public interest and/or political discourse or other forms of speech that are specifically protected. We must work to ensure that this legitimacy is achieved. By: Agustina del Campo @AgustinaDelCamp (1) Note prepared and published in the FLIP (Colombia) annual report in January 2021.