Due to the importance of Freedom of Expression, surveillance and privacy, private and public patrols and censorship and the way things are developing around the globe, we consider this article has become relevant and clarifying again, so we decided to re posted.
A more permissive position for the expressions of politicians
In an interview in late September 2019, Nick Clegg, Facebook's Vice President of Global Affairs and Communications, announced changes to the social network's policies on speech checking and exceptions for journalistic value. The full speech and main points of the announcement can be found here:
https://newsroom.fb.com/news/2019/09/elections-and-political-speech/
In this modification, Facebook resolved
- not apply their electoral information checking procedures to political publications and advertisements (although they will penalize the dissemination of third-party content previously identified as false);
- Do not remove content that violates your community regulations when this content is the responsibility of politicians. In the latter case, the exception only applies with respect to publications and not with respect to paid advertisements on the platform (which will continue to be subject to rules of use).
The company's foundation to exempt the speech of politicians from its content moderation rules aims to promote public debate by protecting expressions that may be of journalistic or public interest based on who issues them.
On the public interest exception:
Some criticism of the decision
Immediately after this announcement, critical voices were raised regarding various aspects of this decision. First, there was a rejection of the distinction between the speeches of public officials and the speeches of other people as a central element in the distinction of public interest. Undoubtedly, the character of a public official that a person holds cannot and should not be the only factor to take into account when determining whether or not content is in the public interest. This criticism is, in our opinion, correct.
Added to this concern are others related to practical aspects of the interpretation of politics, such as determining who the politicians reached by the measure would be. Are they perhaps public officials or politicians in general? Although the candidates seem clearly reached by the definition, is a broad interpretation of political actors that includes activists, unionists or social leaders possible?
Finally, other critics warn in the new interpretation and application of Facebook's policy a "privilege" that would be granted to public officials and that therefore means discrimination against other users. Those who argue this argue that the discourse of politicians would enjoy more protections on the social network than the discourse of an ordinary citizen.
An unwarranted privilege or a step in the right direction?
Although we share some of the points of criticism that we have just exposed, we believe that the measure adopted by Facebook constitutes an imperfect first step in the right direction. Especially to the extent that we understand this change as part of a broader process to determine with greater precision and less discretion, what constitutes content of journalistic or public interest.
The discretion on the part of Facebook in decision-making regarding newsworthiness exceptions to its terms of use is one of the criticisms that we have shared and amplified in recent years. Cases such as the deletion of the photo of the girl from Napalm a couple of years ago, the blocking of videos linked to acts of police violence and the loss of content documenting terrible human rights abuses around the world have raised justified concerns in the community. international.
Although Facebook in each of these cases reinstated the content alleging error in the implementation of its rules, the truth is that the company lacks specific criteria that allow it to identify content that is of journalistic interest for other types of content. This is not true only for Facebook, but it is an evil that until recently affected practically all internet companies that moderate third-party content. In this context, the formulation of a norm that a priori determines that all content exposed by a "politician" enjoys a presumption of public interest and therefore, in principle, falls within the exception of journalistic interest, seems correct as a first step.
Public officials speech and public interest
According to the company's own argument, the discourse of politicians and public officials, particularly those who occupy high positions, is one of the speeches most subject to public scrutiny, inside and outside the network. This idea is correct. The dissemination of this speech is not only of journalistic interest but also of public interest. This collective scrutiny is useful not only for those who agree with the substantive message that the official expresses, but, even more importantly, for those who do not share the message.
Publicity of the expressions of public officials is the measure that enables reflection, reply, counter-discourse and accountability (understood as the responsibility of the official for his own sayings). It is the reason why, even among those who propose the questionable "right to be forgotten" on the internet, the speeches and acts of public officials are considered exempt from its application. In this sense, it does not seem reasonable that officials can compel information intermediaries to hide what they have done or said in aspects related to their functions or public statements.
So if information intermediaries on the internet should not be forced to remove inconvenient content about statements by politicians, is it desirable that they do so based on their own rules of use? As we said previously, there is information of public interest that should circulate on the network, despite the fact that the rules for the use of private platforms consider it inappropriate (remember the cases of the girl in napalm and others mentioned above). It is necessary to clarify when an exception of public interest operates, and for this, the jurisprudence of the inter-American court of human rights helps to understand that the discourse "about" and "of" politicians qualifies as such. Those decisions are aimed at protecting those who criticize the powerful, freeing them from the threat of actions for damages based on capricious interpretations of the way in which this criticism is carried out. And an inescapable presupposition for public criticism is the ability to know and inform oneself about the ideas of politicians and officials. Thus, the discourse of the powerful must also be understood a priori as being in the public interest.
It should be clarified at this point that regarding the illegal content the mechanics are different. If a judge finds that content is illegal or harmful and establishes subsequent responsibilities (including removal), those provisions must be followed. We are talking here about content that without being illegal is questionable in the field of political debate, such as falsehoods or violent speeches that do not constitute a clear incitement.
There are international standards regarding the responsibility that public officials may have for excesses or abuses of their freedom of expression. The Inter-American Court in its jurisprudence condemns the abuses of public officials and even in many cases establishes standards of care for speech that are much more restrictive for public officials than for other people. These stricter standards of care respond to the position that the person occupies, but always assume that the expressions of public officials and politicians are in the public interest.
Conclusion
From this point of view, generating a presumption within the company that all organic content of a "politician" is a priori of public interest, seems necessary. The criticisms however about who constitutes a politician? How do we define them? And how do we identify them if they constitute serious deficiencies in this initiative. In the same way, the company policy cannot and should not, as we said above, limit the exception of public interest to those contents generated by "politicians". On the contrary, it should explicitly include content aimed at denouncing violations of people's human rights; contents that due to the national or local context in which they are developed require notoriety, among other possibilities.
"Democratic control, by society through public opinion, fosters transparency of state activities and promotes the responsibility of officials over their public management, which is why there should be a greater margin of tolerance against claims and opinions expressed in the course of political debates or on issues of public interest. ” Inter-American Court of Human Rights
Authors: Agustina Del Campo and Javier Pallero
