What is a joke? The role of social media

providers in regulating speech

Dr Emily LaidlawLecturer

University of East Anglia Law School

Typical Scenario“Online utterance”

Variously framed as:• Hate Speech• Defamatory speech• Invasion of Privacy• Terrorist Speech• Offensive

• Common defence: it was just a silly joke.• When is it a joke and when is it unlawful?

Focus of Presentation• Goal for today:

o To map the regulatory environment of speech on social networks.

o This mapping shows the increasing importance of alternative regulatory structures to regulate speech.

o Examine effectiveness of these alternative structures using my corporate governance model.

The Regulatory Path of Speech

• “Online utterance”

1. It’s read by a few friends or 2. It goes viral/noticed.followers, they think less of you(or not), issue fades away.

Complaint

From Complaint to Resolution

• Complaint/social policing:

• To the Police To the Host (particularly for foreign content)

Triggers: Triggers:Communications Act Intermediary Regime Malicious Communications Terms of ServiceActPublic Order ActProtection from HarassmentAct etc.

DPP Guidelines 2013 High threshold:• Must be more than:• Offensive, shocking or disturbing; or • Satirical, iconoclastic or rude comment; or • Unpopular or unfashionable opinion, or banter or

humour.

• Push back on the businesses that host the content to also regulate it.

Path of Speech Complaint

Meets Guidelines

Prosecute

Complaint Police Laws Foreign

ContentPushed to

Business

Business Voluntary Codes/Terms of

Service

Alternative Governance Tools Supplement the Law

• This creates a very different system of free speech regulation:

1. Triggers the intermediary liability regime• Obligation on hosts under Regulation 19 ECR to take

down content that it knows, or becomes apparent to it, is unlawful.o New DPP Guidelines likely of guidance.o Difficult where the line between what is prosecuted

and what isn’t is so fine.

Alternative Governance Tools Supplement the Law

2. Voluntary Codes: Terms of Service• Challenges free speech system state/citizen.(a)Government placed in meta-regulatory capacity

by encouragement of such codes. Better clarity needed re implications of this.

(b)Backdrop to T&Cs is the idea of a corporate responsibility to respect human rights, in this case free speech.

Former Special Representative of the United Nations

Secretary-General on business & human rights

• United Nations Guiding Principles• Widely praised, and adopted by the

Human Rights Council.o States have duties protect human

rights.o Business have a duty to respect

human rights.o Victims must have access to a

forum of remediation.

Facebook Policies• Facebook Community Standards:Hate Speech:“Facebook does not permit hate speech, but

distinguishes between serious and humorous speech. While we encourage you to challenge ideas, institutions, events, and practices, we do not permit individuals or groups to attack others based on their race, ethnicity, national origin, religion, sex, gender, sexual orientation, disability or medical condition.”

Twitter Policies• Abusive behaviour policy:

o Re offensive content: ‘Twitter does not screen content and does not remove potentially offensive content unless such content is in violation of the Twitter Rules and Terms of Service.’

• Twitter Rules i.e..o You may not publish or post direct, specific threats

of violence against others.• Policies on parodies, trade marks, copyright, privacy.

The UN Guiding Principles

• Some of this is seen as fulfilling their corporate responsibility to respect.

Two Difficulties1. In crafting their rules, tend to fall back on the

First Amendment approach.• Results in: Innocence of Muslims dilemma:• Results: in back and forth on how to treat a Rape

Joke Group on Facebook.

Facebook Groups and

Pages

2. Trying to Regulate the Slippery Slope• “Does it make sense for me to support A,

given that it might lead others to support B?” Eugene Volokhv (2002)

• Is the subject matter in itself hate speech?

• Problem in varied comments: o “you know she’s playing hard to get

when your [sic] chasing her down an alleyway”

o “I love raping bitches in the cool night air, don’t complain sluts or you’re next.”

• Facebook initially refused to take it down: statement of opinion. Changed its opinion in 2013.

• Introduces other regulatory modality: public pressure/protests/withdrawal of ads.

Emerging Regulatory Map of Social Networking

Speech

Speaker

Laws

SNP Voluntary Codes/Ter

ms of Service

Government

Public Market

Guiding Principles

Characteristics of Good Regulation

• Good characteristics in any regulatory system:• Accessible• Predictable• Legitimate• Rights-compatible• Transparent• Proportionate

• One way: push it through my corporate governance model.

• Model developed to harness the strengths of voluntary codes (i.e. flexible, informal, easy to amend) to protect free speech online and address harmful content.

• Drawing on regulatory and human rights traditions, my model serves as a template for the increasingly common use of non-state based models of governance to address human rights matters.

One Test

Corporate Governance Model: Responsive

Education, research and policy Need better

awareness of the responsibilities businesses have for human rights;

Better awareness of remedial mechanisms available;

Research to keep on top of human rights impact and better understand current one.

Remedial Arm•Underpins the model.•Users need access to a forum of remediation to resolve disputes.•Guidance can be sought from Nominet’s Dispute Resolution model, and WIPO’s Arbitration and Mediation Centre.

Corporate Support Crucial middle layer

joining the legal and extra-legal arms.

Where research can translate into policies, guides and codes.

Where can craft assessment tools for businesses and auditing services for human rights impact assessments.

Advisory and complaints handling line.

Through the lens of the SNPs

Four persistent issues:1. Changeable nature of

rights-impacting decisions;

2. Lack of due process3. Lack of predictability4. Lack of accountability

and/or legitimacy.

Through the lens of the SNPs

• Some work on education/research and corporate support (policies).

• Key gaps:• audits.• Transparency –

decisions explained.• Sufficient remedial

mechanisms• Guidance here

from e-commerce models?

Through the lens of the Facebook

• Key Strength: Discursive nature of the space allows for innovative and responsive approaches:• Three tiered response of

Facebook (2 million requests/week):

1. Remove content (or doesn’t – problem doesn’t give reason why not removed).

2. Warn users. Has user acknowledge shouldn’t post the content in order to regain access to his/her account (calls it ‘education space’).

3. Social reporting to the offending user (allows right to reply). Doesn’t address abusive posts in comments section.

Conclusion • Increasingly complicated regulatory environment for

the exercise of free speech involving public and private forces.

• Challenge to the legal model forces scrutiny of how to these different regulatory approaches come together and how to facilitate this in ways that are complementary or mutually-reinforcing: articulated regulation, Peter Utting.

• One way that this examination can take place is through the corporate governance model proposed:o More educationo Small-scale dispute resolution.o Accountability frameworks.

Dr Emily LaidlawLecturer

UEA Law Schoole.laidlaw@uea.ac.uk