Content Mediation by US Online Platforms: Dealing with Content that Is Harmful but not Illegal

Abstract

The US has experienced an intense debate in recent years over free speech on the internet. Are online digital platforms doing enough to filter out content that is illegal? Are they doing enough to filter out content that is harmful to society, or harmful to disadvantaged groups within society, even if not specifically illegal? Are they perhaps doing not too little filtering, but too much? Who decides what content is harmful, and on what basis? And how does all of this relate to freedom of expression?

We believe that the need for better, more timely and more effective monitoring of content and of participation in online digital platforms in the USA is manifest and urgent.

The legal arguments over these points have been voluminous. Far more could be said that we will say here. In the interest of clarity and brevity, this research note seeks to focus as much as possible on key policy aspects rather than on detailed legal analysis; however, the legal aspects cannot be ignored.

When an American says that it “would take an act of Congress” to solve a problem, he or she means that it is practically impossible. In today’s politically divisive climate, agreement on new legislation would be even more difficult than usual. For that reason, this research note seeks solutions that appear to be realistically implementable under current law.

We also explore how the European Union (EU) seeks to address similar issues, and attempt to explain US regulatory practice in terms that are familiar to an international audience. This not only provides a comparative perspective, but also provides inspiration for methodologies used elsewhere that might possibly be adapted for productive use in the United States.

In this brief research note, we provide background on the tension between monitoring of content versus freedom of expression, and how it expresses itself in law and regulation in the United States. We proceed to discuss the authority and powers of the US Federal Communications Commission (FCC), and some of the tools potentially at its disposal. We then articulate a possible co-regulatory approach that is implementable, does not rely on new legislation, and potentially should help to address (but not necessarily fully solve) the growing problem of false or misleading information in the USA.