Joint statement on online content regulation from GPD, Index on Censorship, and Open Rights Group

16 Oct 2018

Global Partners Digital, Index on Censorship and Open Rights Group are concerned about recent government proposals and announcements related to the regulation of online content, which could have significant adverse impacts on human rights, and particularly freedom of expression. It is well established and accepted that human rights should be protected online as they are protected offline, however proposals and announcements from the government relating to online content in recent months have focused almost entirely on ‘safety’ with little or no consideration for their potential impacts on freedom of expression and other rights.

As well as our concerns over the substance of the proposals and announcements, we also believe that greater coordination among government departments, and collaboration with other interested stakeholders, including civil society, would be beneficial and help achieve more effective policies.

We fully acknowledge the importance of dealing effectively with unlawful and harmful online content, however we are concerned that the failure so far to properly consider the impacts upon human rights when developing legislation and other policies risks undermining internationally agreed human rights laws and standards, especially those relating to freedom of expression.

In particular, the Department for Digital, Culture, Media and Sport, working with the Home Office, is expected to publish a White Paper on Internet Safety in the winter. The White Paper is expected to contain details of a binding social media code of practice and make mandatory transparency reporting by social media platforms with the aim of allowing the government to monitor and evaluate efforts made by social media companies to ensure online safety. Existing drafts of the Code of Practice and transparency reporting guidelines, however, contain no recognition or reference to the importance of freedom of expression. The government is also considering establishing a new regulator of online content however no details have been provided on its potential remit, powers or degree of independence.

These proposals, and others that have been announced, will all have significant impacts on the enjoyment and exercise of human rights online. Given the potential risks, we therefore consider that it essential that human rights considerations be at the heart of the policymaking process, and would urge a ‘human rights by design’ approach be taken towards all legislation and regulation ultimately proposed.

In particular, we call for:

  • No new restrictions on types of content. Existing legislation restricting freedom of expression already covers a wide range of harmful speech and we are unconvinced of any need for further forms of expression to be prohibited. Existing legislation should, instead, be appropriately adapted to take into account online forms of expression, rather than to prohibit further forms of speech.
  • Any regulation of social media or other online companies to be evidence-based, appropriate, proportionate and in full conformity with international human rights law and standards. In particular, we caution against any regulation which incentives the removal of content with strict time limits or the threat of sanctions, due to risks of excessive caution and the removal of lawful and legitimate content.
  • Social media companies to be encouraged to develop fair, simple and transparent oversight mechanisms under which requests for the removal of content, whether by users or governments, can be challenged by those affected. These mechanisms should include transparent dialogue with users, including notifying users why a decision has been made.
  • Recognition of the limits to any use of algorithms or automated decisionmaking related to reviewing content, and the need for human involvement and responsibility in content review processes.
  • Civil society organisations, and other relevant stakeholders, to be fully consulted and involved during the White Paper’s development.

QUOTES:

Jodie Ginsberg, CEO at Index on Censorship:

“Any future regulatory framework for online platforms must be designed with freedom of expression in mind, not just safety. Protecting freedom of expression should be a guiding principle, including in the proposed code of practice for social media companies. It is a major failing that freedom of expression has been ignored completely in the code of practice.”

“The transparency reporting template must be amended to include information about safeguarding users’ freedom of expression. It is extremely surprising that this has been ignored in the current draft version and it confirms that the government is not paying attention to freedom of expression when developing online regulation”.

Charles Bradley, Executive Director at Global Partners Digital:

“Across the world, from Malaysia to Germany, China to South Africa, we are seeing concerning proposals from governments seeking to regulate online content – and the internet more broadly – in ways that pose real risks to human rights. It is therefore especially critical that the United Kingdom government, whose proposals will be watched closely elsewhere, addresses the legitimate challenges it has identified in a way which fully respects international human rights law and standards. Any proposals should also encourage businesses to comply with their human rights responsibilities under the UN Guiding Principles.

“This means that any legal or regulatory frameworks which are proposed should enable and encourage companies to design and implement terms of service relating to online content which are fully compatible with the right to freedom of expression. They should also ensure that there is accountability and meaningful transparency by these companies when they make decisions relating to online content. By doing so, the UK government has the opportunity to enhance the protection of freedom of expression online, rather than undermine it.”

Jim Killock, Executive Director at Open Rights Group:

“If legal material is censored or incorrectly removed, the result will be that laws are not seen as fair and legitimate. The government says it wants the same rules online as offline: this must include the right to a fair decision, and to assert your right to publish, just as you have in the offline world.

“We hope the government takes this opportunity to discuss with us and others how Britain can get this right.”