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What should the role of legislation, regulators, and government be in overseeing political speech online?
Nothing in dominant interpretation of US First Amendment (effectively leaving it to corporations) but US is ~4% of world's population
EU is ~6%, let's look at examples 1/N
Nothing in dominant interpretation of US First Amendment (effectively leaving it to corporations) but US is ~4% of world's population
EU is ~6%, let's look at examples 1/N
Here is German Chancellor Angela Merkel's spokesperson and French Minister of Finance Le Maire quoted in the FT. Note none of them are on the "do nothing" wagon. But they want legislation, regulators, perhaps government in driving seat, not corporations https://on.ft.com/3bxD6wm
Let's leave aside the other part of Europe - about 1/5 EU citizens live in countries w/limited free expression and increasingly (semi)authoritarian governments - and consider German or French position as, if not quite "best case", reality-based version of democratic governments'.
In Germany, main thing is 2017 Network Enforcement Act. Here is what @amelie_hldt writes "the NetzDG did not have the harmful consequences on online speech that many feared. ... Nevertheless, the government still overestimates the benefits of such a law" https://policyreview.info/articles/news/germany-amending-its-online-speech-act-netzdg-not-only/1464
Two observations on state of play in Germany.
First, @amelie_hldt's observation that despite fears the law would incentivize corporate over-enforcement (fears I shared, still share) "There is at least no proof that platforms removed more content than before NetzDG’s adoption."
First, @amelie_hldt's observation that despite fears the law would incentivize corporate over-enforcement (fears I shared, still share) "There is at least no proof that platforms removed more content than before NetzDG’s adoption."
Second, in parallel, the German Federal Constitutional Court is gradually developing the doctrine of indirect third-party effect of fundamental rights extending it to private companies. Read @MCKettemann and Anna Sophia Tiedeke here https://policyreview.info/articles/analysis/back-can-users-sue-platforms-reinstate-deleted-content
Big example was BVerfG ordering Facebook to re-grant right-wing party Der III. Weg access to its FB page in 2019, arguing w/o it, party was "denied an essential opportunity to disseminate its political messages and actively engage in discourse". Repeat: reinstate right-wing party
What about France? There, a draft law on online hate speech proposed by the Macron administration stipulated that the government would have had the main role in deciding on illicit content, without any intervention from a judge. (Remember Le Maire's quote on government above?)
The French Constitutional Council's response? “(These measures) undermine the exercise of freedom of expression and communication in a manner that is unnecessary, inappropriate and disproportionate”. I'm not a lawyer but I think that means "no f*cking way" https://www.reuters.com/article/us-france-tech-regulation/frances-top-court-rejects-core-of-law-targeting-online-hate-speech-idUSKBN23P32O
In parallel, 2 laws drafted against "fake news" around elections. A twisted path they took. Senate pointed to “weaknesses inherent in texts drafted in a hurry“ and "dangers of infringements on freedom of expression“, but Constitutional Counsel gave the nod https://www.lexology.com/library/detail.aspx?g=2bd6dde0-6e3c-4055-bce5-fcf3a31b868a
It is abundantly clear that private corporations are finding it hard to police political speech and it is not clear they have legitimacy to do so aggresively. EU examples are a reminder that does not mean it is easier to do through legislation, regulation, let alone by government
Even if there can be upsides to legislation - if clearly worded, necessary, and proportional, based on broad political support, contains checks+balances/due process - many problems remain. Who enforces (often companies). Can they match scale+pace of problems? Who deals w/appeals?
I focus on Germany and France bcs at least they have not just waved their hands saying "someone must do something about something" but tried to pass legislation. Reposting thread w/reminder most have not. That's negative policy, deliberate non-intervention https://twitter.com/rasmus_kleis/status/1257604673340661760
