Freedom of Expression: Between Logic and Democracy

A simple logic problem for our students stuck at home in the midst of the pandemic: 1. The newspaper “Mentirulo” spreads “fake news” online. The platform verifies the information using fact-checking methods

A simple logic problem for our students studying from home in the midst of the pandemic:

1. The newspaper “Mentirulo” spreads “fake news” online. The platform conducts fact-checking and determines that, indeed, the information—or part of it—is false. The article in question then faces certain consequences: reduced reach, account suspension, removal of the content, exclusion from recommended lists, etc. The specific action taken depends on the company.
2. President “Fashutso” issues a statement in which he lies, vile and brazenly. What should the platform do? We are a long way from those years when it was argued that internet platforms, social media, and other companies should not “take down” content without a prior court order. We no longer debate whether companies have the power to moderate content. Nor do we debate whether moderation is necessary or not. Experts from virtually all disciplines largely agree that content moderation is a prerogative of companies and a necessary service for these networks to function. What we are debating, however, is the legitimacy of these rules, their definition and specificity, the transparency of their application, the accountability that companies must have in light of this immense power, and so on. One issue that is far from resolved, however—and one that is particularly pressing in the midst of a pandemic—is how these rules should be applied to public discourse, which, by its very nature, attracts greater social interest, with all that this entails: wider dissemination, greater impact, closer scrutiny, and more criticism. The discussion is not new. In September 2019, Facebook explained that the company did not verify the content of political campaign ads posted on the platform. In other words, the fact-checking system established to protect users from misinformation was not applied to paid political ads during election season. The announcement sparked a wave of criticism within the United States, particularly from the Democratic Party—which had been affected by the false campaign in question—but also from major digital rights NGOs in the country. They called on Facebook to implement its community guidelines in a consistent and equitable manner. In addition, they called for Facebook to exercise its role and power as an information disseminator responsibly. The arguments were numerous, varied, and, in many cases, highly valid. Twitter, for its part, decided to tackle the problem head-on and ban election advertising on its platform. At that time, together with Javier Pallero, we published a short post on this blog in which we argued that the typical sanctions applied to content verified as false or partially false could be problematic when applied to election campaign content, as they conflict with the need to give such content the widest possible reach and dissemination. We argued, among other things, that in our Latin American countries we have fought to ensure that all political parties have access to the media during campaigns to disseminate their electoral platforms—without restrictions or censorship and on an equal footing. We also argued that access to information about candidates—including their platforms and campaign proposals—is fundamental to the very functioning of democracy. The application of fact-checking standards to public discourse during campaigns has its limits. And the implementation of measures that affect the dissemination of such messages for reasons related to fact-checking must also have its limits. At the heart of the discussion, however, lies the dilemma we face today: How should public discourse on social media be regulated? Should the same rules apply to discourse in general as to political discourse—defined as that which is issued by public officials in the exercise of their duties? On the one hand, political discourse has greater visibility. It is presumed that public officials disseminate public information and that there is a public interest in ensuring that this information is available and accessible to everyone within the country. Furthermore, public officials have a duty to disseminate accurate public information; they are obligated not to stigmatize others and to exercise restraint in their opinions when these might lead to stigmatization, imply bias in situations where duties of neutrality and impartiality apply, or exert undue pressure on other branches of government. What happens when these obligations are not met? What happens when public officials themselves stigmatize, lie, exert pressure, and pass undue judgment—and use their massive audiences to spread these kinds of messages? If this type of public discourse poses a problem under ordinary circumstances, what happens when it occurs in the midst of a global pandemic? If, during an emergency, governments can suspend certain rights or restrict them to a greater extent than in ordinary times, should other actors—such as journalists, news outlets, or social media platforms—do the same? The answer is undoubtedly complex. In this scenario, the problem posed by Twitter’s response to the issue of election advertising is readily apparent: banning all political discourse on social media would make no sense. Not only would it be terrible for business, it would also be terrible for democracy and disastrous for the pandemic. But in the absence of perfectly clean-cut solutions, there are two options, and both necessarily come at a cost:
3. Apply logic to solve the problem raised in the introduction: all users are subject to the same rules and standards. All content is fact-checked. And if content is found to be partially or entirely false, its dissemination is restricted, accounts are suspended, and so on. In this scenario, the response is the same for all users and all forms of speech. There are no exceptions. There are no boundaries. Under this framework, when Trump refers to COVID-19 as the “Chinese virus,” journalists and platforms can choose to cut and censor that part of his speech. Or when Bolsonaro urges people to ignore the coronavirus and keep Brazil open and running, the comment can be removed. But under this logic, we would also lose much of the debate among epidemiologists and specialists within the governments themselves, who from the outset have been shaping this debate through their mistakes.
4. Establish additional protections for public discourse, particularly political discourse. This solution distinguishes between different types of speech and different types of users. It recognizes boundaries and establishes exceptions. Under this logic, Trump’s speech MUST be disseminated, just like Bolsonaro’s, with all the risks that entails. But so must the statements from the WHO, the Brazilian Minister of Health, the CDC in the U.S., and so on. Both solutions have their benefits and their problems. And whichever solution is adopted in the midst of a pandemic will likely shape the debate even after the pandemic has passed. The title of this article makes it clear where this author stands. It is clear, however, that when it comes to freedom of expression—contrary to what some assume—the matter is far from settled. Agustina Del Campo TW @agustinadelcamp