The Internet is a borderless global network of networks and we as the Internet Service Providers and Platforms (the “Business Community”) around the globe have joined our forces for contributing for the aim of global Internet governance.
One of the main issues of the Internet that needs to be resolved is the issue of “online hate speech”, which is very difficult to regulate on an international level due to the cross-border nature and global public core of the Internet.
In that regard, we will hereby defend our position on coming up with a suitable model for global Internet governance for finding solutions to the issue of hate speech online while protecting free and open Internet as an engine for innovation and growth without contradicting with the freedom of expression and minimizing the risk of “collateral damage” caused by too much regulatory intervention.
Freedom of Speech and Access to Information as Fundamental Rights
The right to freedom of expression is contained in most states’ constitutions, such as the First Amendment of the US Constitution, as well as the Article 11 of the EU Charter of Human Rights, and in all relevant international treaties, namely, in Article 19 of the Universal Declaration of Human Rights, which guarantees the right “to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”
Given the formidable importance the Internet and, broadly speaking, digital technologies have assumed, the role of Internet service providers and platforms is undeniably critical when it comes to enabling and facilitating the access and exercise of the right to freedom of expression. ISP’s provide the average citizen with the infrastructure that is indispensable to access the wealth of information that is the Internet, and platforms, such as social media, supply users with a way to instantaneously share information and publish their opinions. It may thus be argued that, nowadays, the Internet and the potentialities it offers are probably the most meaningful way most people exercise their right to access information and freedom of expression.
In other words, we as the Business Community who act as “intermediaries” are responsible for providing and maintaining the infrastructure of the Internet as a global public good, that renders possible communication and economic activities online, even though we are mostly comprised of private actors that operate on a for-profit business model, contrary to the states whose actual task is to promote those fundamental rights.
Having said all of this, while it is of utmost importance that the regulatory and legal frameworks safeguard interests such as the prevention of hate speech, it is imperative to take into consideration the role of the Business Community, so we must be protected from unreasonable punishment that could undermine our business models and, ultimately, our existence.
Furthermore, it should be stressed that the internet is a powerhouse of innovation, economic growth and scientific developments, which is also a fundamental reason to protect it’s open and free nature.
The Rocks of Regulation and Third-Party Intervention
There is no internationally agreed-upon definition of what constitutes as hate speech. Pursuant to the Framework Decision 2008/913/JHA of the Council of the European Union, hate speech is defined as the “public incitement to violence or hatred directed to groups or individuals on the basis of certain characteristics, including race, colour, religion, descent and national or ethnic origin”. However, coming up with a global definition is particularly difficult since it requires some notion of the perpetrators emotional state and states would have different opinions on the content of what constitutes as “hate speech” due to cultural and political differences. Due to this fact, a traditional command and control governance model will not work on the Internet context which does not have a central governing authority that can tackle the issue of online hate speech without contradicting with the freedom of expression as explained above.
Although some parties consider that “self-regulation” is currently the best working model, we as the Business Community believe that over-regulation will hinder our values, such as freedom of expression, and the protection of free and open internet.
Thus, regulation on ISPs and Platforms would have detrimental consequences. Particularly in regard to hate speech, we feel it is detrimental to the public’s rights if we are compelled to make decisions such as what consists of hate speech, as this issue is closely related to the fundamental rights that have been addressed throughout this paper – such decisions affect the exercise of freedom of expression and access to information and, as private entities, we should not be given the duty to decide on these subject-matters, as has been pointed out by many concerned parties.
Moreover, one of our greatest concerns is the risk of “over-regulation”, which will likely hinder freedom of expression while trying to prevent hate speech. Firstly, over-regulation in this area will lead to a compliance burden for the Business Community with a strict “duty of care,” which could create a strong incentive for ISPs and Platforms to restrict and remove content, which would eventually lead to over-removal and censorship from the Business Community in order to avoid any penalties.
In addition to that, over-regulation would also lead to the problem of “legalism”, which would lead the Business Community and society to focus on rules rather than underlying goal of protection of human rights. Thus, when a policy only addresses the symptoms of systemic injustice instead of the actual issues and censors those who feel like they are being censored, the government would actually reinforce their beliefs. It should also be mentioned that over-regulation and legalism in this field would also cause much more bigger issues as we have seen in the example of hate speech law in Apartheid South Africa, which was used to criminalise criticism of white domination, which illustrates the potential political abuse of hate speech limitations.
The Business Community should not be Liable for Hate Speech Under any Regulation
Much has been debated as to whether, or to what extent, ISPs and platforms should be held liable for the information and activities originating from third-parties that utilise their infrastructure and online services. We, as the Business community, serve as mere intermediaries to the publication and broadcast of information, activities that are, by default, very socially beneficial, as they “correspond to the exercise of fundamental rights and liberties: freedom of expression; economic freedoms; access to information, to culture and education; freedom of association and political participation, etc.”
The Internet is now an essential every-day life element, such as air and water, which makes it a global public good and therefore the communication infrastructure we provide is so important, that it is in the public’s own best interest that we are exempted from liability in situations where users misuse this infrastructure, such as when they violate hate speech prohibitions. Moreover, as we have mentioned before regarding the risks of over-regulation, putting the liability on the Business Community would result in what we call “collateral censorship”, that is, excessive censorship due to our fear of legal sanctions, which would negatively impact lawful users’ activities and curb the exercise of free speech online.
At this point, we would like to stress the rationale behind the Articles 12, 13 and 14 of the 2000/31/EC, the so called e-Commerce directive of the European Union, which we believe is a suitable regulatory approach to the issue. The aforementioned provisions explicitly exempt us from liability in situations where our role amounts to simply providing access (mere conduit), caching and hosting services. Even if third-parties use our infrastructure and services to publish and disseminate content that is allegedly illegal, we are in no way involved in the creation and distribution of such content, since we are just providing the means for the users to conduct these activities.
It is in the public’s own interest that ISPs and platforms are protected from legal sanctions, as they would be deprived of the immense social benefits associated with internet intermediaries. The public’s right to freedom of expression and access to information should be adequately taken into consideration when discussing internet governance models, particularly in regard to the issue of hate speech.
How to Solve the Issue of Hate Speech under Current Circunstances
As we stated above, it is apparent that regulating the Business Community for preventing hate speech in a global level would lead to much undesired consequences than hate speech itself. However, especially following the tragic terrorist attacks of 15 March 2019 on the Muslim community of Christchurch, it is evident that some degree of solutions must be proposed for preventing such event from happening again.
However, we believe that the main focus should not be on the design of the Internet or the way that we provide our services. The stakeholders of the global Internet community should be careful to preserve and protect the free nature of the Internet while tackling this issue and any measurement or regulation that would harm the basic nature of the Internet by the methods of filtering or blocking should not be allowed. Thus, the Internet’s core components can be regarded as a global public good and warrant international protection.
In that regard, it must be the people/users be subjected to regulation/policies regarding hate speech since they are the source of the behavior but we are only the object of this action. “Censorship measures should never be delegated to a private entity and no-one should be held liable for content on the Internet of which they are not the author”In that regard, we as the Business Community believe that this issue needs to be solved in a social level at its source rather than violating the free nature of the Internet and freedom of expression since the concerns regarding over-regulation are very important to be overlooked. In today’s world, it is evident that the Business Community is much more connected to its users than their governments and the technical community and we have the power to educate the people and preventing the undesired behavior of hate speech before it ever happens.
Therefore, we offer to tackle the issue of hate speech by raising common and aggressive self-awareness campaigns on all of our platforms by using sophisticated public relations techniques, creating common codes of conduct against hate speech. As an example of the successful awareness campaign we used council of Europe portal with No Hate Speech Youth Campaign.
Hate speech was an issue even before the Internet emerged, as human history dramatically faced during mass atrocities like Holocoust, genocides and massacres, and, unfortunately, it will always be an issue. In other words, the cause or the motives of the hate speech should not be related with the free and open structure of the Internet. Therefore, we believe that pointing out ‘online’ hate speech is not a good way to point out as a starting point.
However, it doesn’t necessarily mean that since its hard/nearly impossible to eradicate we should do nothing about it. [there is no way to cure hate speech but there is a way to stand up agaisnt it!] On the contrary, the Internet should be the main engine to combat against hate speech by providing equity, inclusivity and diversity with the promotion of freedom of speech and counterspeech.
As explained above, we as the Business Community strongly believe that a self-regulatory model is most suitable for tackling the issue of hate speech online without contradicting with the freedom of expression due to our expertise, efficiency, transparency and accountability in this area compared to governments and the technical community.