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

Free Speech

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.

Filed Under: david kaye, eu, europe, free speech, gdpr, regulations, right to be forgotten, social media