On the possibilities of private censorship

Last week, the CELE team discussed the issue of private censorship: cases in which people or organizations are excluded from public debate by the decision of private companies that, claiming their own right to freedom of expression, decide to expel from their platforms people with undesirable speeches, who, for example, violate their terms and conditions, (some call this practice deplatforming). The discussion centered on the Sudestadacase in Uruguay: some articles that linked two law firms in that country with a corruption case in Spain were "deindexed" by Google at the request of those involved. The case is interesting for several reasons, one of the main ones is the potential conflict of jurisdiction that can be seen on the horizon. But here, I would like to theorize about how Latin American constitutional law, not very prone to the doctrine of "state action," could react to such a claim

This is the problem: the doctrine of state action assumes that constitutional rights are only opposable to the state, and not to private actors. This general rule in force in the United States has several exceptions, but one of the rights in which there are almost no exceptions - emphasis on almost—- is freedom of expression. There, private actors cannot violate the freedom of expression of third parties because they decide, precisely in the exercise of their freedom of expression, what to publish or leave out from their media outlet. Based on this almost absolute right, Internet platforms can expel the president of the United States, leaving him with no right to complain. Private actors have almost sovereign power when exercising their constitutional rights. This doctrine of the United States does not exist in Argentina and, as far as I know, it does not exist in other Latin American countries (any further information in this regard is welcome). In Argentina, for example, in the famous Kot case, the Supreme Court pointed out how a constitutional right can be affected by private action. And this deserves a legal remedy.

This difference in constitutional doctrines makes the claim of Sudestadaagainst Google very attractive. While there is no right “to be indexed” —- for example, a child pornography site cannot demand that Google index it; or if Google has to pay to index a news site, it would merely stop offering said service —-, I do believe that the decisions of Deindexingmust be subjected to strict scrutiny. The difference between Indexingand Deindexingis significant and must be made explicit. Indexingsupposes the normal operation of an automated system, in this case, of a search engine, which operates under the premise that everything that exists has to be identified, stored, and rankedaccording to a proprietary algorithm. Deindexing decisions, on the other hand, are not in principle automated, they operate in a targeted manner and in the face of specific content (and, sometimes, in the face of third-party requests). Deindexingis a deliberate action that seeks to "correct" the expected result of the algorithm when it runs freely. In general, the decisions of Deindexingare problematic: all the jurisprudence on the liability of intermediaries developed in various Latin American countries was built on the premise that allowing generic remedies directed at search engines so that they stop linking certain people to certain content created a direct incentive for censorship that affected the content published by third parties (for example, an amateur pornographer who used the names of model as meta tagsto increase traffic on search engines...). Faced with legal claims, search engines would tend to overreactto avoid civil or criminal liability. The - limited - principle of non-liability of intermediariesexists to avoid this incentive. One of the ways in which jurisprudence was limited was by accepting specificremedies: those affected by supposedly illicit content must identify the problem sites, and thus search engines can proceed with deindexation if there is a relevant court order (thus avoiding the risk to overreact, although that of private censorship subsists).

The interesting thing about the Sudestada case is that here we are not dealing with amateur pornographers, but rather one of the main political magazines in Uruguay that is facing the deindexing of content with very evident public interest. The same arguments apply in this case that years ago we used for pornographers: excluding a site from the search engines practically implies making them disappear from the Internet because no person who does not know them will be able to access their contents (that is why we called search engines necessary intermediaries on the Internet). Without going into the difficult jurisdictional issues raised by the case, I would say: from a constitutional point of view, the claim looks solid, and the decision to deindex this specific content should be subject to strict scrutiny. And this is so because in Latin America the doctrine of "state action" does not enjoy good public perception nor is it part of our constitutional traditions.