Europe's Ongoing Attack On Free Speech, And Why It Should Concern Us All

from the this-is-not-helping dept

David Kaye, a law professor who has also been the UN's Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression (quite the title!) has penned a very interesting article for Foreign Affairs (possibly behind a paywall or registration wall) about how Europe's recent attempts to regulate the internet are now a major threat to free speech. It talks about many issues we've written about, from the awful Right to be Forgotten cases to efforts to fine internet platforms if they don't magically disappear hate speech. While telling internet platforms to "fix it' may feel good, the reality is that it doesn't work, creates more problems, and gives those platforms even more power as the de facto speech police (something we should all be worried about). As Kaye writes:

In September of this year, the commission doubled down on these principles, adopting a formal communication that urges “online platforms to step up the fight against illegal content.” As with the right to be forgotten, the communication puts the companies themselves in the position of identifying, especially through the use of algorithmic automation, illegal content posted to their platforms. But, as Daphne Keller of Stanford’s Center for Internet and Society has argued, the idea that automation can solve illegal content problems without sweeping in vast amounts of legal content is fantasy. Machines typically fail to account for satire, critique, and other kinds of context that turn superficial claims of illegality into fully legitimate content. Automation thus involves a disproportionate takedown of legal content all to target a smaller amount of illegal material online. As a matter of law, as attorney and legal analyst Graham Smith noted, the commission process reverses the normal presumptions of legality in favor of illegality, with safeguards so weak that companies will likely err on the side of taking down content.

The communication expressly avoids the problem of disinformation and propaganda. But regulation of such content may also be on the horizon, as the commission has announced creation of a High-Level Group to address it. Even the staunchest promoters of freedom of expression in European politics recognize that disinformation is a major problem. Marietje Schaake, a Dutch member of the European Parliament and a leading proponent of respect for human rights in Europe, captured a widespread view on the continent when she said in parliamentary debate that she is “not reassured when Silicon Valley or Mark Zuckerberg are the de facto designers of our realities or of our truths.”  

He goes on to point out a number of other problematic attacks on free speech in the name of "regulating the internet" -- including the EU's attempt at copyright reform. He concludes by noting we should be very, very concerned about how this will play out for free speech:

These rules should concern anyone who cares about freedom of expression, as they involve limitations on European uses of online platforms. European policymakers have good faith reasons to advocate them, such as countering rampant abuse at a time of human dislocation, political instability, and rise of far-right parties. Yet the tools used often risk overregulation, incentivizing private censorship that could undermine public debate and creative pursuits. Companies may be forced into the position of facilitating practices that undermine their customers’ access to information. Europeans should be concerned, as many are.

Why should anyone else care? In the analog era, after all, a fair response in the United States to speech regulation across the pond (or anywhere else) might have been: that’s the way they do it in Europe. They have different experiences, giving some support (if very limited) to rules that U.S. courts would never permit—such as those against Holocaust denial or the glorification of terrorism.

But online space is different. All of the major companies operate at scale, and there is significant risk that troubling content regulations in Europe will seep into global corporate practices with an impact on the uses of social media and search worldwide. The possibility of global delinking of search results may be the most obvious form of content threat, but all of the rules and proposals noted above may slowly move to undermine freedom of expression. For instance, once a company invests the considerable funding required to develop sophisticated content filters for European markets, the barriers to applying them in American contexts are likely to come down.

There's much more in Kaye's piece and I highly recommend reading the whole thing.

One important point in all of this, which is noted in the quoted section above, but is worth repeating: most of the people pushing for these laws are not doing so with the intention of suppressing speech. Some may be doing so, but most of them really do have good intentions. The problem is that if you don't live in the world of free speech (or spend time watching how speech is stifled in various ways) it's often hard to realize how your "perfectly reasonable" attempt to stop some form of "bad" speech can be turned around and twisted, stretched and abused to silence all sorts of important speech. Even worse, it's very difficult for many people proposing these rules to comprehend that their attempts to, say, silence Nazis online, will almost certainly be used to silence the most vulnerable. Tools to suppress speech are frequently used against the powerless, especially when they try to speak out against the powerful.

The fact that so many new regulations in Europe (not to mention elsewhere) are being pushed with little concern for or regard to the wider impact on free expression should concern us all.


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 26 Dec 2017 @ 10:57am

    Techdirt advocates idiots yelling at random people in bars.

    Justified, I read in the "Funnies" of this week, by a child prattling that teh internets is vast and complex.

    You wouldn't stand for vile ad hom in a bar, especially when unprovoked, you'd expect bartender to defend you, and call the police, yet it's okay because "on teh internets"? -- STUPID AND CHILDISH.

    And NOT coincidentally, "Foreign Affairs" is definitely THEM: globalist and corporatist, that's why Masnick thinks it's authoritative.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Dec 2017 @ 11:22am

      Re: Techdirt advocates idiots yelling at random people in bars.

      You can equate the Internet to a bar, so long as you allow that the patrons of that bar are all the worlds population. If you do not like the people in the tiny part of the bar you are in, circulate until you find agreeable company.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Dec 2017 @ 11:23am

      Re: Techdirt advocates idiots yelling at random people in bars.

      I'm not sure who told you that everything about the internet is analogous to your local pub, but I think it might be slightly limiting your capacity for rational thought.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Dec 2017 @ 11:29am

      Re: Techdirt advocates idiots yelling at random people in bars.

      Perhaps you spend too much time in bars.

      reply to this | link to this | view in chronology ]

    • icon
      James Burkhardt (profile), 26 Dec 2017 @ 11:35am

      Re: Techdirt advocates idiots yelling at random people in bars.

      If an asshole is yelling vile ad homs at you in a bar, you expect the bartender (AKA admins or mods) might kick them out of the bar. The asshole should only have the police called on him if he attacks or moves to attack you (or is horribly drunk and violates public drunkenness laws). The ad homs themselves are not an arrest-able offense. And yet what you are calling for is the sober asshole being arrested for speech, for thought, just because someone else decides it isn't acceptable. It's thought crime, and free speech is built to discourage thought crime.

      And, in fact, many bars will not kick out the sober asshole. Because that bar is an asshole bar, and the patrons accept and even encourage assholes.

      Bad analogy is bad.

      reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 26 Dec 2017 @ 11:58am

      Re: Techdirt advocates idiots yelling at random people in bars.

      The Internet is not a bar, pub, or other alcohol-serving business. It can make people want to drink, though. Case in point: reading your comments.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Dec 2017 @ 1:06pm

      Re: Techdirt advocates idiots yelling at random people in bars.

      You must have vast experience in yelling at people and subsequently getting shown to the parking lot at a fairly high velocity.

      reply to this | link to this | view in chronology ]

    • icon
      Gwiz (profile), 26 Dec 2017 @ 1:17pm

      You wouldn't stand for vile ad hom in a bar, especially when unprovoked, you'd expect bartender to defend you, and call the police.....

      I wouldn't expect any of that. People in bars say all sorts of shit and I couldn't care less.

      If the person was being unusually disruptive I would expect management to ask them to leave and if management didn't do that I would find another place to hang out at.

      Maybe you should take that advice to heart, Blue - if you don't like the responses you get when you spout stupid shit and you don't like how Techdirt manages THEIR comment section, find someplace else to hang out at.

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 26 Dec 2017 @ 2:15pm

      Re: Techdirt advocates idiots yelling at random people in bars.

      You wouldn't stand for vile ad hom in a bar, especially when unprovoked, you'd expect bartender to defend you, and call the police, yet it's okay because "on teh internets"? -- STUPID AND CHILDISH.

      Amusingly, when we say that platforms are free to moderate -- the more accurate analogy to what you write above -- you somehow attack us (incorrectly) claiming that we're against free speech.

      Yet, what we're actually arguing is that it's more dangerous when the gov't tells the bar that it must ban "bad" people from ever having a drink in their bars, without any definition of "bad" or how to actually handle those situations. And without recognizing that the bar hosts probably 50 to 60% of humanity.

      And NOT coincidentally, "Foreign Affairs" is definitely THEM: globalist and corporatist, that's why Masnick thinks it's authoritative.

      What? I'm still confused as to this line of misleading insults that you think you're using to make a point. I don't base my opinions on the publisher. I base my opinions on what's in the actual article. Try it sometime.

      reply to this | link to this | view in chronology ]

      • identicon
        Thad, 27 Dec 2017 @ 9:17am

        Re: Re: Techdirt advocates idiots yelling at random people in bars.

        In my experience, when people start ranting about "globalists", it's generally safe to assume they're using it as a euphemism for "the Jews".

        reply to this | link to this | view in chronology ]

        • icon
          Mike Masnick (profile), 27 Dec 2017 @ 10:45am

          Re: Re: Re: Techdirt advocates idiots yelling at random people in bars.

          In my experience, when people start ranting about "globalists", it's generally safe to assume they're using it as a euphemism for "the Jews".

          Huh. That's fascinating. I hadn't heard that. But adds another layer of icky creepiness to this particular commenter.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Dec 2017 @ 5:35pm

      Re: Techdirt advocates idiots yelling at random people in bars.

      So the guy who thinks that people shouldn't be allowed to do the online equivalent of yelling at random people... protests this by yelling at random people... on the Internet. Nice logic, dumbass.

      reply to this | link to this | view in chronology ]

    • icon
      Ninja (profile), 27 Dec 2017 @ 8:02am

      Re: Techdirt advocates idiots yelling at random people in bars.

      Seriously? I'd just go to another part of the immensely huge bar that contains more than half of the world population. And if the person kept coming at me I'd use existing laws that apply to the physical bar to sue him/her for harassment on the virtual bar.

      Your point?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 26 Dec 2017 @ 12:20pm

    Read all of Kaye

    And it encourages as much misconception as it clarifies anything.

    Note that the Right to be Forgotten legislation didn't effect ISP's, it effected big honking database providers. Right? It wasn't an "Internet" issue, it was a business intelligence aggregation issue. Which is distinct from typical user content in almost every way.

    The amount of data that Google and FB aggregate, could be reasonably argued to put them under FCRA regulations. The information it collects may effect hiring decisions for example, which is a common use of credit reports.

    Once Google started aggregating user information that was beyond the reasonable understanding of their users, they crossed a line. What I'm talking about in particular is the collection and collating of UUIDs, hardware ID's and so forth in browser sessions, and the use of complex algorithms to track sessions that are explicitly configured by users not be tracked.

    IOW they are getting in peoples business even in cases where they are aware that users don't want them to. So on the subject of 'consent', Google and FB have a lot to answer for.

    Of course I would agree that the states approach to regulation is completely assinine. Simply declaring that somebody does what you want, is not reasonable coming from people tasked with the stewardship of the law. The law has the obligation to be true in perpetuity, not just in response to spastic outbursts of legislators.

    There is a responsibility for the assertion of contractual relationships that falls, predominantly on the browser makers. All of the needed functionality could be handled in experimental HTTP header fields. (http was designed to be extended from the very beginning) Instead what has happened is that browsers have become much less transparent.

    Really the EU shouldn't be bitching about the database. It should be bitching about the lack of contractual definition in Chrome, Safari, Firefox, IE, etc.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Dec 2017 @ 1:26pm

      Re: Read all of Kaye

      "Right to be Forgotten legislation didn't effect ISP's,"

      Really? - why not? When the isp sources content that is subject to these silly laws, they get a break?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 26 Dec 2017 @ 2:00pm

        Re: Re: Read all of Kaye

        "sources content"

        Perhaps you could clarify what exactly you mean by that?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 26 Dec 2017 @ 3:39pm

          Re: Re: Re: Read all of Kaye

          They create and publish their own stuff, you know that stuff they want to zero rate.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 27 Dec 2017 @ 7:27am

            Re: Re: Re: Re: Read all of Kaye

            ISP's don't. The parallel companies that their mega corp owners often own, do. But that is beside the point.

            The ISP is not constrained by the states prior restraint of speech, so far as the ISP is actually providing Internet service. The ability to effect prior restraint would be contingient on interference with traffic above OSI layer 3, which, if occuring, distinguishes the service from actually being "Internet service". Which is to say, what most consumers buy as "broadband" isn't actually Internet service, but a walled garden, though the walls are more like a pet fence.

            Search is not Googles product. The analytics it generates from that search are its product. Their core service is providing resources to human mind farms, aka sales and marketing departments. I used to be a really big fan of Google. But at this point their tracking has gotten so intrusive that it is effecting civil discourse in a negative way. They are really too much like FB at this point bother to painting them with different brushes.

            And while I regard prior restraint with contempt, the state is not the only institution effecting prior restraint on the Internet. IOW, both sides of this argument are seriously delinquent in their respective responsibilities to their respective constitutionally protected civil rights.

            reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 26 Dec 2017 @ 1:20pm

    'Because 'bad speech' isn't really 'speech' per say...'

    One important point in all of this, which is noted in the quoted section above, but is worth repeating: most of the people pushing for these laws are not doing so with the intention of suppressing speech.

    Yes, they are, they just consider it acceptable because (even giving them the benefit of the doubt) in their minds the only speech that would be impacted is 'bad speech', and therefore doesn't count.

    (We'll ignore for the moment that that's an impossibly optimistic and unreasonable best case scenario.)

    Give them the benefit of the doubt if you want and assume that their end goals are good, but do not make their actions and the methods they are pushing out as other than what they actually are.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Dec 2017 @ 3:07am

    "most of the people pushing for these laws are not doing so with the intention of suppressing speech."

    P'rhaps. But they're not particularly bothered if free speech is stifled as an unintended consequence. Or they refuse to educate themselves about the risk of this happening, which is just as bad.

    reply to this | link to this | view in chronology ]

  • identicon
    Rekrul, 27 Dec 2017 @ 1:49pm

    The fact that so many new regulations in Europe (not to mention elsewhere) are being pushed with little concern for or regard to the wider impact on free expression should concern us all.

    Are you sure that suppressing free expression isn't the intended purpose of these laws?

    reply to this | link to this | view in chronology ]


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