Special Rapporteur on Freedom of Expression
At CELE, we welcome this first step the Commission is taking to address this issue, and we appreciate that it is doing so through a process of open, multisectoral dialogue. As this process begins, it is essential, on the one hand, to bring governments into this dialogue, given the growing legislative interest in the matter; to promote the participation of the entire region, including the U.S. government and civil society—where many of these platforms are based; and to establish clear conditions of equality for the various stakeholders participating in the process.
Honorable Commissioners, Mr. Rapporteur, distinguished members of civil society, representatives of the government and the private sector, The consensus on freedom of expression is not as clear as it was a few years ago. Even among human rights and freedom of expression activists and advocates themselves, there are those who call for greater control over public debate and those who advocate for more freedom and fewer restrictions. This dichotomy is resulting in complex legislation in various countries at the global and regional levels, which in many cases creates conflicting incentives. Against this backdrop, the IACHR and its Rapporteur’s Office have called for a dialogue capable of providing clear criteria to guide the public-private relationship regarding content management, while protecting and promoting existing regional standards on freedom of expression. The IACHR and the Special Rapporteur have identified a turning point in freedom of expression. Multiple factors contribute to the current situation, some specific to the technological world, others not: Among the former, the following are worth mentioning:
Unprecedented technological growth—automation; expanded monitoring capabilities; data storage and processing;
Concentration of power and market share in certain global companies.
Growing pressures and a consequent opportunity to reexamine the limits on online freedom of expression.
Speed and cross-jurisdictional nature Among the latter:
Growing inequality (particularly in Latin America)
Concentration of wealth;
Crisis of representative democracy.
Social polarization and radicalization.
A crisis in the perception of freedom of expression, which is unfortunately on the decline. These latter issues, of course, have a technological counterpart, but they are not unique to this sphere; rather, they extend beyond it. Content moderation is one of the areas where these issues converge. This process involves a public-private effort to determine the rules governing how the public debate of ideas and opinions will proceed. The legal and civility rules that must be followed; how that conversation will be structured; and what means will be used to implement these standards. There is no single model for content moderation. Some models are decentralized, while others are centralized. The outcome of this regional dialogue must be applicable and useful to both sides in terms of identifying the minimum requirements that the rules and processes must guarantee. Nor is there a single, universal concept of moderation. By moderation, we sometimes refer to content curation, self-regulation, filtering, and blocking. The elements of this moderation vary depending on the type of intermediaries we are referring to; and the consequences differ depending on the context or level at which the intermediary operates, or even the type of services it offers. (Content moderation on Facebook is not the same as on Zoom or in the Google Play Store.) Different elements, different consequences. Given that the issues related to content moderation are numerous and varied, the solutions to these issues are also numerous and varied, interdisciplinary, and constantly evolving. One of the guiding principles in the search for solutions has been that content moderation must respect and adhere to international human rights standards. A key standard derived from this principle is the exemption of intermediaries from liability for third-party content. This is because it serves as the primary incentive for companies to protect and guarantee their users’ freedom of expression. Despite the clarity with which this fundamental principle for the protection of freedom of expression is established, in the Americas, this standard is not yet guaranteed. Regarding the actions companies themselves take in managing this content, perhaps the clearest and most explicit recommendation came from the 2018 report by UN Special Rapporteur David Kaye: That content intermediary companies adopt the “three-part test”—legality, proportionality, and necessity—for their self-regulation and practices. This proposal, which sounds good in principle, is not easy to interpret or implement. Illegal content, as defined in terms of service and moderated by companies, has specific characteristics, and responsibility for determining and addressing it is shared between the public and private sectors. However, this arrangement is not without its problems when the government’s interpretation conflicts with or differs from that of the private sector. This is even more problematic when the interpretation of human rights organizations contradicts that of the state. With regard to content that is legal and self-regulated by private companies, certain distinctions must be made here. The three-part test first requires that limitations on freedom of expression fall squarely within one of the legitimate objectives that the Convention (or the International Covenant on Civil and Political Rights, as the case may be) explicitly prescribes. But these documents, as Brenda Dvoskin recently pointed out, were originally designed for states, not for companies. The legitimate objectives set forth in the American Convention on Human Rights are framed from a state perspective (public health, national security), not a commercial or private one. The limits on the state’s authority to restrict freedom of expression are clear, but those applicable to companies are not. Nor is it clear what criteria should be used to assess the necessity of certain rules or measures, or how proportionality should be understood in this context. The elements of these tests and the applicable or desirable tools for moderating content may vary depending on the objectives these measures pursue. It is one thing to moderate illegal content and quite another to moderate content that is legal but problematic. There is a consensus regarding the need for transparency and minimum guarantees of due process. However, there is little clarity or specificity regarding what these concepts mean from a human rights perspective when applied to a private actor. Nor is it clear how these principles should apply to the various intermediaries that currently perform moderation functions. Perhaps this dialogue can shed light on this matter. Perhaps the most significant contribution that this process, which begins today, can make is to offer a regional perspective to these debates. In any case, given the breadth and complexity of the issue and the many factors that influence it, it is essential that the IACHR clearly define the scope of this new process, critically evaluating its own expertise so that it can build upon its existing standards, strengthen them where necessary, and to contribute, from a regional perspective, to addressing some of the complex global dilemmas that this issue raises. At CELE, we welcome this first step the Commission is taking to delve into this issue and the fact that it is doing so through a process of open, multisectoral dialogue. As this process begins, it is essential, on the one hand, to bring states into this dialogue, given the growing legislative interest in the matter; to promote the participation of the entire region, including the U.S. government and civil society—since that is where many of these platforms are based; and to establish clear conditions of equality for the various actors participating in the process. Speech by Agustina Del Campo, @agustinadelcamp, Director of @CELEUP, Center for Studies on Freedom of Expression and Access to Information.