Jawboning Content Moderation from a European Perspective

Abstract

State actors increasingly rely on internet intermediaries to combat unwanted speech types such as hate speech and disinformation. They are regarded as the only entities capable of effectively moderating speech on their respective social media platforms. Despite being private entities, they thereby increasingly are given state-like responsibilities in terms of setting norms for speech on the internet through forms of self- and co-regulation and in terms of enforcing those norms. However, when regulating speech they are not bound to the same constitutional norms as states are. Their position as an intermediary thus creates a constitutional tension: by informally persuading or pressurizing intermediaries to moderate certain types of speech, states can de facto limit the freedom of speech without adhering to rule of law principles. The figure of informal pressure on private entities to pursue a policy goal that lacks a clear legal basis has been termed ‘jawboning’ in literature, but the phenomenon is relatively unexplored in the European context. This chapter therefore aims to explore the constitutional tension that jawboning brings about, taking the European Code of Conduct on Countering Illegal Hate Speech Online as the main example.

Keywords: Freedom of Expression, Social Media, Jawboning, Hate Speech, Intermediary Liability, Content Moderation