A few weeks ago, orchestrated from an office in Silicon Valley, California, came an announcement that Facebook had significantly tightened its community guidelines to increase prohibition around what users can freely say about the COVID-19 pandemic on the site. In doing so, Facebook practically restricted the speech of billions of people all over the world.
Never before has a private company been able to instantaneously affect the speech rights of so many people. And yet, faced with this modern crisis, opportunities for serious examination of this are drowning in denialism that private companies affect speech rights at all and lost in a tide of calls for platforms to “do more” censorship of unpopular speech.
For governments, legislating to alter the parameters of permissible speech is a big deal. The right to free expression is one which is protected by international human rights law – particularly, for us, Article 10 of the European Convention on Human Rights. Febrile discussions around the introduction of a new Hate Crime Bill in Scotland and all of the ramifications of such legislation demonstrate the challenges presented by any law which impacts upon the right to free expression. Yet on 8th February, with the stroke of a pen (or the uploading of a blog to their website), a small number of Facebook executives restricted the free expression of 2.8 billion people worldwide.
The rule change in question demonstrated a crossing of the Rubicon as the platform banned posts containing information related to coronavirus which is deemed to have been “debunked”, where rules before mainly prohibited posts that led to (often incalculable) risks of “imminent physical harm”. One such category now prohibited on the platform is the assertion that “COVID-19 is man-made or manufactured”, despite the fact that the origins of the virus are not conclusively known. Facebook’s rule change came before the WHO have even reported in full on their findings into the virus’ origins. It makes one wonder – will Facebook stop at inhibiting free expression, or is free inquiry under attack too?
Free discussions on Facebook regarding the origins of COVID-19 are now subject to intense censorship. The site even now bans claims that the virus was in some way predicted. Do we really have to rehearse arguments for the very basics of liberalism – that everyone should have a right to form their own opinions, benefitting from freedom of information, freedom of expression and freedom of the press? Reserving speech rights for the consensus of authorities is what would be expected of dictators, not democracies.
Many of our politicians appear to have forgotten this. Because amidst a mood of panic and fear over “misinformation”, they are increasingly leaning on the platforms to sanitise the online space through political pressure or the threat of regulation.
But the permissibility of individuals’ speech has never been restricted to that which is deemed accurate by a supreme arbiter. If it had, many prominent ideas which contravened existing orthodoxies would never have come to fruition. At the start of the pandemic, Facebook prohibited the advertisement of masks, deeming it questionable that they could be effective at stopping the spread of COVID-19. Now, mask use is recommended and even legally required by the Government in some areas.
Critics will argue that Facebook is a private company which can do as it pleases. Such reckless indifference as to how private companies impact fundamental rights is highly irresponsible. Others citing property rights will say that if a pub landlord bars anyone from discussing the pandemic in their establishment, those who wish to do so can go elsewhere. But Facebook is not a pub.
Facebook is a global communications network integrated in modern life which has more users than the population of any country in the world and turns over more revenue than the GDP of many nations too. The monopolistic nature of Facebook and Twitter means than for many citizens, journalists and politicians these are services that they cannot do without. In fact, Facebook actively prevents the establishment of other competitors by buying them out and Amazon, Apple and Google have prevented competitors such as Parler from even being accessed via their platforms.
As speech online is increasingly governed by a small number of private tech firms, a real-world acceptance that private companies can restrict fundamental rights is badly needed. The reality is that when Facebook changes its community guidelines, around 40 million users in the UK (nearly 2/3 of the population) become more limited in what they can say on one of the country’s most popular meeting places. If we don’t seriously interrogate the implications of this change, beyond the obsessive search for more categories of speech for corporations to censor, the right to free expression will become an unrecognisable relic. We are fast losing the liberal belief in free speech that has enabled every modern movement for social change and civic empowerment, from gay liberation to the civil rights movement. More speech is always better than less.
In this period of lockdowns and working from home, we’re likely to speak to more people online than in real life on any given day. As such, the online space is the new setting in a battle for control of ideas. Against this backdrop looms the Government’s forthcoming Online Safety Bill, which will encourage greater censorship online and actively encourage companies to tackle “legal but harmful content” on their sites. Far from diminishing big tech censorship, this would mean that it is state-sponsored.
Liberals and moderates of all stripes should be concerned. Article 19 of the Universal Declaration of Human Rights states that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
With misinformation fears intensifying, “interference” on the web is growing. As the online space shrinks and speech is curtailed, it is hard to say that the right to free expression is not increasingly under threat.
Words by Mark Johnson our Legal and Policy Officer.