Against Privatized Censorship: Proposals for Responsible Delegation
70 Pages Posted: 24 Aug 2019 Last revised: 29 Sep 2020
Date Written: August 24, 2019
From beheadings to hate speech, the internet is awash in material that poses risks to a range of state objectives. And in light of recent events — from Facebook’s role in the genocide in Myanmar to the way in which social media was used by the perpetrator of the Christchurch massacre — the question is no longer whether, but how, states will regulate social media platforms. Governments, however, have responded to the problem of harmful online content by privatizing censorship. Germany, France, Australia, the United Kingdom, and the European Union are joining countries such as China, Russia, and Thailand in enacting laws that delegate to platforms extensive authority to censor speech on their behalf.
This Article is the first to examine the legality of privatized censorship. Using international law as a baseline, the Article demonstrates that censorship by social media platforms that is done in response to state mandate or coercion is in fact state action that must comply with human rights norms. It further argues that naked delegations, unaccompanied by safeguards, are unlawful under human rights law. The Article then develops a framework for the lawful regulation of social media platforms. The Article considers proposals for accountability based in both law and code, arguing that regulators must not only establish oversight mechanisms but must also seek changes in platform structure and business models in order to ensure the responsible governance of online speech.
Keywords: censorship, human rights, technology, social media, hate speech, cyberlaw, intermediary, intermediary liability, international law, state action
Suggested Citation: Suggested Citation