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The IBA’s response to the situation in Ukraine
United States President Donald Trump’s headline-grabbing Executive Order on Preventing Online Censorship, which he signed on 28 May, is the latest development in his frequently fraught relationship with social media. It was sparked by Twitter’s decision to attach a ‘potentially misleading’ warning to one of his tweets about mail-in voting in the US.
The Executive Order seeks to strip away some of the liability protections granted to online content providers in section 230 of the US Communications Decency Act. The President’s critics accuse him of using the law to exercise personal grudges.
It’s also the latest example of the pressure that governments exert on technology companies in respect to how they deal with online content and how this relates to people’s freedom of expression. Social media offers a platform from which people can easily connect to a wider audience. Its capacity to become politicised is huge.
Ambassador David Pressman
Co-Chair of the IBA Human Rights Law Committee
Overseas territories are big business for many of the most familiar US-headquartered technology giants. Since 2016, for example, Vietnam has become of one of Facebook’s biggest markets in Asia. According to ANTS, a Vietnamese market research company, digital ad revenue in Vietnam in 2018 totalled around $550m – 70 per cent of which went to Facebook and Google.
In April, Facebook sources reported to Reuters that the company had agreed to increase censorship of ‘anti-state’ posts by the country’s users, after its local servers in Vietnam had been taken offline, rendering it virtually unusable by slowing local traffic to a crawl.
Human rights agencies were quick to decry this apparent capitulation to Vietnam’s ruling Communist Party. Amnesty International, in a statement, described it as setting ‘a dangerous precedent. Governments around the world will see this as an open invitation to enlist Facebook in the service of state censorship.’
Facebook’s own statement said it ‘worked hard to protect and defend’ freedom of expression internationally as ‘a fundamental human right’, but had taken this action ‘to ensure our services remain available and usable for millions of people in Vietnam, who rely on them’.
In 2016, the United Nations Human Rights Council passed a resolution for the ‘promotion, protection, and enjoyment of human rights on the internet’, particularly with regards to freedom of expression as already protected by Articles 19 of the Universal Declaration of Human Rights and of the International Covenant on Civil and Political Rights. However, the resolution is not legally binding, nor is it easily enforceable against countries that ignore it.
In 2019, Apple was widely criticised for removing a Hong Kong mapping app, HKmap.live, from its app store during the pro-democracy protests. In an internal memo, Apple Chief Executive Officer Tim Cook wrote that the company had received ‘credible information’ from the Hong Kong Cyber Security and Technology Crime Bureau that the app was being used ‘maliciously.’
Sceptics have dismissed Apple’s actions as those of a company caving to demands from the Chinese government as it sought to crack down on the protests. China is a key market for Apple, which is feeling the financial impact of the country’s ongoing trade war with the US. ‘We Hong Kongers will definitely look closely at whether Apple chooses to uphold its commitment to free expression,’ wrote Hong Kong legislator Charles Mok in an open letter to Cook on Twitter.
Legal frameworks in many jurisdictions distinguish freedom of speech from categories such as hate speech or incitement to violence. ‘But, of course, various countries have chosen different approaches,’ says Gregor Buehler, Co-Chair of the IBA Intellectual Property and Entertainment Law Committee and a partner at Homburger. ‘That’s been accelerated by the internet making more or less all content available.’
Meanwhile, the advent of increasingly comprehensive cybersecurity laws has also introduced the risk of their abuse for political ends. The OpenNet Initiative – a project that monitored state surveillance practices until 2014 – identified censorship for ‘cybersecurity’ as a key suppressive tactic.
Content providers that do business in places with poor human rights records will likely meet this murky line between ‘protection’ and ‘suppression’. Ambassador David Pressman is Co-Chair of the IBA Human Rights Law Committee and an international crisis litigator at Jenner & Block, as well as a former US Ambassador to the UN. He thinks large companies are often too confident about ‘their own virtues to recognize the extraordinary compromises they are making to gain or preserve market access.’
‘All companies operating in high-risk environments share a responsibility to advance justice, and should be held accountable where they are complicit in abuses,’ he says. Also, while companies have to obey the law of the land, it’s important to remember that such businesses contribute significantly to local economies. Pressman believes they should use this ‘often tremendous influence’ to advance ‘human dignity.’
He recently counselled a large tech company on whether to withdraw from a country because of human rights concerns. To the extent that it was prepared to ‘use its clout to advance human rights,’ there was, crucially, also an argument to stay. However, to do so the company needed to identify ‘the specific reforms it would insist on’, how it would measure the country’s progress and ‘what tripwires would precipitate an immediate withdrawal.’
In Pressman’s view, if a technology company has ‘a mechanism to hold itself accountable in order to ensure compliance with its own stated policy,’ the company doesn’t necessarily have to give into the censorship of a particular regime without a fight. But it must have rigorously prepared itself.
When it comes to the future of the relationship between online content, censorship and free speech, however, Pressman strikes a warning note. ‘Human rights lawyers point to international human rights law as the basis for tough, content take-down questions. The reality, however, is that international human rights law – on issues like incitement – is highly contested.’
Pressman points to the US’ recent step back from ‘the international legal institutions and the fora in which international norms are developed.’ He fears the consequences are that ‘the definitions of concepts like incitement are being driven by jurisdictions with far more interventionist views of content moderation than that envisioned under the US First Amendment.’