The Limits of International Law in Content Moderation
UCI Journal of International, Transnational, and Comparative Law, Forthcoming
41 Pages Posted: 4 Dec 2020
Date Written: October 12, 2020
In remarkably short order, there has been growing convergence around the idea that major social media platforms should use international human rights law (IHRL) as the basis for their content moderation rules, and even platforms themselves have begun to agree. But why have these legendarily growth-obsessed companies been so quick to voluntarily say they are jumping on this bandwagon, which its advocates generally envision should operate as a constraint on their operations? In the possible reasons, there are both encouraging and less encouraging answers. For the glass half-full types, there is the straightforward explanation that perhaps these companies do genuinely care about human rights. But there is also a less optimistic possibility: companies are embracing the terminology so readily because they know that in reality it will not act as much of a constraint at all. This is the prospect explored in this article. This article is a sympathetic critique of the contributions IHRL can make to content moderation, highlighting the very real limits of IHRL as a practical guide to what platforms should do in many, if not most, difficult cases. It surveys the many arguments in favor of IHRL as a basis for content moderation rule. Ultimately, however, it argues that failing to acknowledge the considerable limitations of IHRL in this context will only serve the interests of platforms rather than their users by giving platforms legitimacy dividends they will not pay for by allowing them to wrap themselves in the language of IHRL even as what that body of norms requires remains indeterminate and contested.
Keywords: content moderation; freedom of expression; international human rights law; social media platforms; article 19; free speech
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