The Protection of Freedom of Expression from Social Media Platforms

• Publication year: 2022

The Protection of Freedom of Expression from Social Media Platforms

András Koltay

[Page 523]

The Protection of Freedom of Expression from Social Media Platforms

András Koltay^*

I. Introduction

Social media platforms have overturned the previously known system of public communication. As predicted at the outset, the spread of the public Internet that started three decades ago has resulted in a paradigm shift in this field. Now, anyone can publish their opinion outside the legacy media, at no significant cost, and can become known and be discussed by others. Due to the technological characteristics of the Internet, it might also be expected that this kind of mass expression, with such an abundance of content, would necessitate the emergence of gatekeepers, similar in function to the ones that existed earlier for conventional media. The newsagent, post office, and cable or satellite services have been replaced by the Internet service provider, the server (host) provider and the like. However, no one could have foreseen that the new gatekeepers of online communication would not only be neutral transmitters or repositories but also active shapers of the communication process, deciding on which user content on the Internet they deemed undesirable and deciding which content, out of all the theoretically accessible content, is actually displayed to individual users. Content filtering, deleting, blocking, suspending, and ranking are

[Page 524]

all types of active interference with the exercise of users' freedom of speech and practices which also affect the interests of other users in obtaining information. All this became an even greater and more difficult-to-manage issue when, in certain sub-markets of the Internet, certain giant tech companies' services gained a monopoly or came close to doing so. This process has emerged in connection with gatekeepers of a specific type: the most important online platforms (social media, video sharing, search engines, web stores). In this way, a new, unexpected obstacle to the exercise of freedom of speech appeared, with the result that the earlier constitutional doctrines could no longer be applied without any change. The crux of the problem is that the platforms are privately owned. In formal terms, they are simply market players which are not bound by the guarantees of freedom of speech imposed on public bodies and which may enjoy the protection of freedom of speech themselves.

This Article addresses the issue of the restriction of freedom of speech by social media platforms. Section II delineates traditional media and social media platforms, which is a prerequisite for further reflection on appropriate regulation. Section III examines the issues raised by the deletion of user content by platforms. Based on the fundamentals of European media regulation, Section IV raises the issue of the responsibility of social media platforms to maintain the appropriate quality of democratic publicity. Closing the article, Section V summarizes the conclusions. This Article will present European and U.S. regulatory approaches in parallel, considering both legacy media and social media platforms. The Author of this Article, coming from Europe, undertakes to place the European approach at the forefront, highlighting where it conflicts with the U.S. concept of freedom of speech. However, given that the issues raised by social media platforms are similar everywhere and their regulation is the subject of similar debates worldwide, it cannot be ruled out that European solutions could at least help shape the U.S. academic community's further thinking.

II. Differentiation Between Social Media Platforms and Legacy Media

The operation of social media platforms is fundamentally different from that of "legacy" media. In essence, content on these platforms is created independently of the platforms. However, in the process of publishing and the aftermath, the platform becomes similar in operation to the media and the editorial activity they perform. This fundamental discrepancy and the similarity which exists call for a precise delineation of services in order to define the precise set of liability rules applicable to them. In practice, this means examining

[Page 525]

whether existing and mature regulatory solutions and liability regimes for legacy media can be applied, at least in some respects, to social media.

A. The Notion of Online Gatekeepers and Platforms

A gatekeeper is an entity tasked with deciding if a person or thing can pass through a "gate" controlled by the gatekeeper.¹ Gatekeepers have existed in all historic periods of public communication and defining their legal status has often caused problems for the law. Generally, newspaper kiosks, postal carriers, or cable and satellite providers were not considered to have a direct impact on the media content they made available to the public. A postal carrier or cable provider could prevent individual readers or viewers from accessing information by refusing to deliver a paper or fix a network error (thereby also hurting its own financial interests), but it was not in a position to decide on the content of newspaper articles or television programs. Such actors had limited potential to interfere with the communication process, even though they were indispensable parts of it, and this made them a tempting target for governments seeking to regulate, or at least keep within certain boundaries, the freedom of speech of others by regulating the intermediaries.

Even though the Internet seems to provide direct and unconditional access for persons wishing to exercise their freedom of speech in public, gatekeepers still remain an indispensable part of the communication process. A gatekeeper is more specifically defined as a person or entity whose activity is necessary for publishing the opinion of another person or entity, and gatekeepers include Internet service providers, blog host providers, social media, search engine providers, entities selling apps, webstores, news portals, news aggregating sites, and the content providers of websites who can decide on the publication of comments to individual posts. Some gatekeepers may be influential or even indispensable, with a considerable impact on public communication, while other gatekeepers may have more limited powers, and may even go unnoticed by the public. It is true that all gatekeepers are capable of influencing the public without being government actors, and that they are usually even more effective at influencing it than governments themselves.² As private entities, they are not bound by the constitutional rules pertaining to free speech, so they can establish their own service rules concerning that freedom.

[Page 526]

According to the classification developed by Emily Laidlaw, "Internet gatekeepers" form the largest group and they control the flow of information. Among these entities, the "Internet information gatekeepers" form a smaller group, and through this control they are capable of affecting individuals' participation in democratic discourse and public debate.³ In this model, a gatekeeper belongs to the latter group if it is capable of facilitating or hindering democratic discourse.⁴ Such activities raise more direct questions regarding the enforcement of the freedom of speech, on the side both of the party influenced by the gatekeeper and of the gatekeeper itself.

As Uta Kohl notes, the most important theoretical questions pertaining to the gatekeepers of the Internet relate to whether they play an active or a passive role in the communication process, the nature of their editorial activities, and the extent of the similarities between their editorial activities and actual editing.⁵ The role of online gatekeepers is usually not passive. They are key actors of the democratic public sphere and actively involved in the communication process, including making decisions about what their users can access and what they cannot, or can access only with substantial difficulty. The European Union (E.U.) Directive, which regulates, in part, the activities of individual gatekeepers, does not require such gatekeepers to acknowledge their own role as editors. But it does allow them to be held liable for infringements in accordance with their relationship with the content. Gatekeepers may not be held liable if they are not actively involved in the public transmission of unlawful content, or if it is not aware of the infringing nature of the content, but they are required to remove such content after becoming aware of the infringement.⁶ However, this does not prevent gatekeepers from sorting through the various pieces of content of their own volition and in a manner permitted by law. Under the current legal approach, gatekeepers are not considered as "media services." This means that while they do demand protection for the freedom of speech in order to enable their selection activities, they are not bound by the various legal guarantees

[Page 527]

concerning the right of individuals to access the media.⁷ They are also not subject to obligations that are otherwise applicable to the media as a private institution of constitutional value,⁸ as it is conceptualized in the European legal approach.⁹

Online platforms are considered among the most influential gatekeepers in the online sphere. The term online platform "refers to an undertaking operating in two (or multi)-sided markets, which uses the internet to enable interactions between two or more distinct but interdependent groups of users so as to generate value for at least one of the groups."¹⁰ Search engines, new aggregators, online marketplaces, audiovisual and music platforms, video sharing platforms, and social media are all different types of online platforms. Several definitions exist for social media platforms. For example, according to Aleksandra Gebicka and Andreas Heinemann, social media platforms are "web-based services that allow individuals to...