Businesses as Gatekeepers to Online Content: A Human Rights Approach

On 11 April 2018, a seminar titled, “Businesses as Gatekeepers to Online Content: a Human Rights Approach ” took place in London. This was the second in a series of three events organised by the UK Law Society and the Human Rights, Big Data and Technology (HRBDT) project. The event addressed the different ways in which internet intermediaries de facto regulate online content, either in response to state demands in this respect or by carrying out tasks and functions delegated by the state, and explored related human rights implications of these developments. Attendance for the event was diverse and consisted of lawyers, academics, and civil society members who shared an interest in platform regulation and the role of businesses in the online space.

After introductions by Christina Blacklaws, Vice President of the UK Law Society, Professor Sheldon Leader presented on the importance that understanding the role of businesses have in the online space. He provided the theoretical basis upon which the discussion was built by presenting two ways in which platforms are regarded when considering designing platform regulations. One treats the platform as a neutral venue (conduit) connecting users, and the other treats the platform as an instrument for achieving certain policy objectives. This was followed by discussions of liability and due diligence that platforms/companies may have. Taking examples from labour and commercial law, Professor Leader demonstrated the parallels between traditional human rights and business challenges and extrapolated these to the online platforms specifically.

Professor Lorna Woods followed this presentation with an insightful analysis of Article 10 of the European Convention on Human rights focusing on right to freedom of expression and information. Starting with outlining some of the underlying assumptions that exist around business, state, and user relationships she brought up significant questions such as: where are the boundaries to a neutral vs. proactive intermediary? What constitutes as hate speech? And, does the right to access to an online platform exist? She emphasized the missing regulations around distribution of content, rather than only content regulation. By using examples, from the limited case law that exists about online content (e.g. Delfi AS V. Estonia), she established what court decisions so far have been in cases on content regulation and distribution and identified challenges moving forward.

This was followed by an interchange between Sheldon Leader and Lorna Woods on accountability and due diligence and how the duty of care could be extended to platforms and providers. Ideas brought forward included practical approaches to making operators identify risks and take appropriate actions to mitigate risk in light of what their users expectations are. Following the presentations the audience engaged with the speakers to discuss topics and bring about new questions concerning due diligence, duty of care, rights of businesses, the definition of hate speech and other overarching implications and questions on competing rights and the future of business responsibilities.

Christina Blacklaws concluded the event with recognising and applauding the speakers for their insightful presentations and thanked the audience for the interesting discussion that followed. She further urged everyone to write and blog about the questions and topics that came up given their importance and centrality in our society today.