The Call for Radical Transparency, Meaningful Accountability and Commitment to Remedy – David Kaye’s Report on Content Regulation

On 6 April 2018, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye, submitted a report to the Office of the High Commissioner for Human Rights (OHCHR) addressing the regulation of user generated online content. The report provides recommendations for states and businesses on how to apply human rights standards in order to ensure that “offline rights apply equally online” (para 1). David Kaye approaches this issue by answering the questions “What responsibilities do companies have to ensure that their platforms do not interfere with rights guaranteed under international law? What standards should they apply to content moderation? Should states regulate commercial content moderation and, if so, how?” (para 2)

The report answers these questions and makes clear that there is an urgent need for transparency, accountability and access to remedy when it comes to user generated content moderation. This post will highlight two significant aspects of Kaye’s report, namely the importance of understanding the benefit of adopting a human rights framework and the specific role and responsibilities of businesses.

The Importance of the Human Rights framework

The report sets out the specific value of a human rights based approach to user generated content moderation and ensures that states and business can be held accountable to users across national borders (para 41). This focus on a human rights-based approach is notable in that such issues have frequently been addressed solely through a counter-terrorism, or countering violent extremism lens.

In regard to state obligations, Kaye states that state’s principal duties are (1) to ensure enabling environments for freedom of expression and to protect its exercise and (2) to ensure businesses respect human rights. The report notes that any limitations on freedom of expression must meet the well-established conditions of legality, necessity, proportionality and legitimacy.

When it comes to company obligations reference is made to the UN Guiding Principles on Business and Human Rights which provide a framework by which companies should abide. While the principles are non-binding, they provide an authoritative statement on the responsibility of business to respect human rights, and establish the steps they must take to do so. The Rapporteur states that “companies overwhelming role in public life globally argues strongly for their adoption and implementation”(para 10). The key elements drawn out of the UN Guiding Principles are the requirements that business enterprises:

  1. Avoid causing or contributing to adverse human rights impacts (principle 13)
  2. Make high level policy commitments (principle 16)
  3. Conduct due diligence (principles 17-19)
  4. Engage in prevention and mitigation strategies (principle 23)
  5. Conduct ongoing review of their efforts to respect rights (principle 20-21)
  6. Provide appropriate remediation (principles 22,29,31)

The Important Role of Companies

While the report speaks to both States and companies in regard to their legal obligations the majority of the report addresses companies’ moderation of online content. This focus is welcome as companies play a leading role in relation to both enabling freedom of expression and monitoring to ensure ‘appropriate’ usage. It is through this monitoring role that companies may inappropriately abuse individual’s right to freedom of expression, particularly through reliance on vague, self-interpreted company policies.

Company policies on hate, harassment and abuse, similar to counter-terrorism legislation, are often vague and result in inconsistent policy enforcement that may penalize minorities while reinforcing the status of dominant or powerful groups. While context is intended as a guideline to assess the applicability of restrictions, in reality it has not prevented removal of legitimate content. Kaye states that meaningful context assessment is often thwarted by time and resource constraints imposed on human moderators, overdependence on automation, and insufficient understanding of linguistic and cultural nuance (para 29).

Real-name requirements are problematic because they can expose activists and vulnerable individuals and groups to grave physical danger. Since online anonymity is often necessary for the physical safety of vulnerable users, such as human rights defenders, “human rights principles default to the protection of anonymity, subject only to limitations that would protect their identities” (para 30). Finally, disinformation is problematic as it challenges access to information and the overall public trust in media and government institutions increasing the pressure to address disinformation and encouraging over blocking and content removal causing serious risk to freedom of expression.

Overall, David Kaye provides an extensive overview of the issues around content moderation by both states and companies regarding the specific requirements placed on companies. He Illustrates clearly that the challenges we face are global and require multi stakeholder engagement. The involvement and awareness of civil society and individuals users is crucial in securing their rights by shaping how the online sphere is regulated.  Human rights standards, “if implemented transparently and consistently with meaningful users and civil society input, provide a framework for holding both state and companies accountable to users across national borders”([ara41). Additionally, as mentioned in a previous HRBDT submission, “a human rights-based approach provides a holistic view and enables appreciation of the ‘social, political and legal’ landscape, thereby ‘[lifting] sectoral “blinkers” and [facilitating] an integrated response to multifaceted…problems’. Drawing on existing international human rights standards and norms provides enhanced certainty and ensures international perspectives are based on universal values, “this reduces issues associated with identifying a shared understanding regarding the content of ethical principles and also with the possibility of fragmented and divergent approaches.”

Please find below a summary of recommendations for States and Companies. For David Kaye’s full report and recommendations please click here.

Key Recommendations for States summarised:

  • States must repeal any law that criminalises or unduly restrict expression online or offline.
  • Smart regulation should be the norm, in which companies transparency allow the public to make informed choices of whether to engage in online forums.
  • States should only restrict content pursuant to an order by an independent and impartial judicial authority in accordance with due process and standards of legality, necessity and legitimacy.
  • States should refrain from imposing disproportionate sanctions on internet intermediaries
  • States should refrain from establishing laws that would require proactive monitoring and filtering of content.
  • States should refrain from delegating responsibilities to companies as adjudicators of content.
  • States should publish detailed transparency reports on all content related requests issues and involve genuine public input in all regulator considerations.

Recommendations for ICT companies summarised:

  • Companies should recognize that the authoritative global standard for ensuring freedom of expression on their platform is human rights law, not the varying laws of states or their own private interests, and they should re-evaluate their standards accordingly.
  • The guiding principles on Business and Human Rights along with industry-specific guidelines developed by civil society, intergovernmental bodies, the Global Network Initiative and others, provide baseline approaches that all Internet companies should adopt.
  • The companies must embark on radically different approaches to transparency at all stages of their operations.
  • Companies must open themselves up to public accountability.

Disclaimer: The views expressed herein are the author(s) alone