New technologies have changed the way we communicate challenging traditional structures of speech regulation. In the internet context, the transnational, instantaneous nature of communications makes it difficult for governments to directly control the information that enters and leaves a country.
At the same time the power of companies, which control this information flow, increases, because the communication technologies that enable or disable participation in discourse online are often privately owned. In order to find information, we use search engines. In order to share information we use communication platforms such as Twitter. In order to access the internet, we need to use Internet Service Providers (ISP). Thus we inevitably rely on these companies to exercise the right to freedom of expression online and they thereby become gatekeepers to our online experience. This is problematic for a human rights system that has treated human rights as a government responsibility, and has effectively privatised human rights in the digital environment.
Our reliance on these gatekeepers to exercise the right to free speech has had two effects. First, such gatekeepers have increasingly been the target of legal measures designed to capitalise on their capacity to regulate third party conduct. This ranges from orders for ISPs to block access to copyright infringing websites and other unlawful content as seen in United Kingdom cases involving Pirate Bay and Newzbin2, to orders by the Egyptian government during the Arab Spring in 2011 for Vodafone to switch off mobile networks. These orders put pressure on companies, both domestically and internationally, to be advocates for users’ free speech rights and to have in place governance codes that guide their conduct in this respect.
Second, in the Western World speech regulation in cyberspace has largely been left to self-regulation much the same way that regulation of the internet in general has been light-touch. When Facebook decides to delete a group it deems offensive, Twitter suspends a user’s account for the content of his or her tweets, or Amazon decides to no longer host a site such as Wikileaks, the determination tends to be made outside the legal system of human rights. The result is a system of private governance running alongside the law without any of the human rights safeguards one normally expects of state-run systems, such as principles of accountability, predictability, accessibility, transparency and proportionality.
When companies have chosen to address their human rights impact, the models of regulation range from internal codes of conduct often set down through Terms of Service to more formalised industry self-regulatory frameworks such as the Internet Watch Foundation to address child sexual abuse images and the Global Network Initiative to address free speech and privacy. Informal corporate social responsibility (CSR) codes and self-regulatory frameworks therefore emerge as powerful forces in shaping the right to freedom of expression online.
My new book, Regulating Speech in Cyberspace (CUP, 2015) challenges the traditional conception of human rights as a relationship between citizens and state, arguing that in the digital age the experience of human rights in general, and free speech in particular, often occurs with and through private parties. This calls for a new system of human rights governance that takes account of private power yet is sensitive to the models of regulation that have emerged in the communications technology sector.
Through a series of case studies, the book explores how these gatekeepers operate at the intersection of three fields of study: CSR, regulation (more broadly law) and human rights. All three ask questions about where the law ends and social responsibility begins, and it is the link between these fields that grounds the proposal in this book for a new governance model. This has wider relevance to the debates concerning human rights and business (including privacy and freedom of association), regulatory theory and internet governance.
Regulating Speech in Cyberspace is published as a time when human rights, business and technology issues are receiving increasing public attention. Since 2010 we have seen a paradigm shift at an international level in the recognition of human rights in cyberspace. Access to the internet as a fundamental right received the United Nations stamp of approval in a report by Frank La Rue [pdf], the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. In 2012 the UN Human Rights Council passed a resolution affirming internet freedom as a basic human right, in particular the right to freedom of expression. At a European level we have seen the Court of Justice of the European Union and the European Court of Human Rights issue judgments with strong rights-based arguments directed at the activities of technology companies. This can be seen in cases such as Scarlet v. SABAM followed by Sabam v. Netlog regarding ISP filtering, Ahmet Yildirim v. Turkey regarding hosts and SL, Google Inc. v. Agencia Espanola de Proteccion de Datos, Marios Costeja Gonzalez regarding a right to be forgotten on search engines.
At the same time, the business and human rights agenda has been a focal point of international governance discussions, most importantly with the work of John Ruggie [pdf] in drafting the UN Guiding Principles. They were endorsed by the UN in 2011 and have been widely praised by government, businesses and NGOs. They have been incorporated into many agendas on CSR, as seen in Europe [pdf] and the UK, and have formed the basis of industry CSR codes and guides, such as the European Commission Guidance for ICTs and the Global Network Initiative. Despite its apparent popularity, the Guiding Principles are controversial. There continue to be calls for a treaty-based governance regime for the human rights obligations of businesses. Regulating Speech in Cyberspace seeks to move the conversation forward by extending the internet regulatory debate to take account of CSR.
Chapter 1: The Internet as a Democratising Force, examines the internet’s potential to be both a tool of democracy and a tool of control, setting up for the reader the critical role played by private gatekeepers in making discourse online possible and the need for human rights compliant governance structures in order to facilitate this democratic potential. In Chapter 2, ‘A Framework for Identifying Internet Information Gatekeepers’ (IIG), the gatekeepers studied in this book will be identified and rooted in their impact on human rights.
In Chapter 3, ’ Corporate Social Responsibility in Cyberspace’ CSR theory will be examined, tracing its history and establishing its relationship with the law and human rights and how it is being used in practice. It will show that the promise of CSR in the digital environment is in deploying human rights principles to non-public bodies, which operate largely outside the remit of traditional human rights law. Ultimately, however, the largely voluntary nature of CSR instruments makes it a problematic candidate as a governance tool for IIGs and freedom of speech.
Chapters 4 and 5 comprise case studies of the public-facing governance frameworks of two macro-gatekeepers. In Chapter 4, ‘Mechanisms of Information Control: ISP Filtering’, the role of ISPs in filtering content is examined, in particular the role of the industry regulatory the IWF. In Chapter 5, ‘Mechanisms of Information Control: Search Engines’, the case study examines the role of search engines in controlling information flows through search indexing and rankings.
Chapter 6, ‘A Corporate Governance Model for the Digital Age’ draws together the findings of the case studies and examines their significance to the following question. What role has CSR played in governing the free speech impact of internet gatekeepers, and in this role, does CSR adds value to the goal of facilitating and protecting free speech online? This chapter proposes an alternative governance model to address issues of human rights regulation in cyberspace
Emily Laidlaw is Assistant Professor of Law at the University of Calgary.