Honorable Commissioners and Commissioners, Mr. Rapporteur, distinguished members of civil society, representatives of the State and companies,
The agreement on freedom of expression is not as clear as it was a few years ago. Within the activists and defenders of human rights and freedom of expression there are those who demand more control of the public debate and those who advocate more freedom and fewer restrictions. This dichotomy is being translated into complex legislation in different states at the global and regional level, generating in many cases contradictory incentives. In this scenario, the call by the IACHR and its Rapporteurship to develop a dialogue capable of offering clear criteria to guide the public / private relationship around content management, protecting and promoting existing standards on freedom of expression to regional level.
The IACHR and the Rapporteur have identified a turning point in freedom of expression. Multiple edges contribute to the shaping of the current situation, some typical of the technological world, others not:
Among the first, it is worth mentioning:
- Unprecedented technological growth.- Automation; expanded monitoring capabilities; data storage and processing;
- Concentration of power and market in some companies at a global level.
- Increasing pressures and a consequent opportunity to re-litigate the limits to freedom of expression online.
- Speed and interjurisdictionality
Between the seconds:
- Growing inequality, (particularly in Latin America)
- concentration of wealth;
- crisis of representative democracy.
- Polarization and social radicalization.
- Crisis in the view of freedom of expression, which is sadly down.
The latter, of course, have a technological correlation, but they are not specific to this area, but rather exceed it.
Content moderation is one of the exercises where these problems are combined. This exercise is a public / private exercise to determine the rules according to which the public debate of ideas and opinions will take place. The legal and civil rules to be followed; how that conversation will be ordered; and what will be the means used to implement these standards.
There is no unambiguous model for content moderation. There are decentralized and other centralized models. The product of this regional dialogue must be applicable and useful to both in the sense of identifying the minimum imperatives that the rules and processes must guarantee.
There is also no unambiguous concept of moderation. By moderation we sometimes mean content curation, self-regulation, filtering, and blocking. The elements of this moderation are different depending on what type of intermediaries we are referring to; and the consequences are different depending on the place or layer in which the intermediary acts or even the type of services it offers. (Moderation of content on Facebook is not the same as in Zoom, or in the Google store). Different elements, different consequences.
Mindful that the problems related to content moderation are multiple and varied, the solutions for these problems are also multiple and varied, interdisciplinary, and constantly evolving.
One of the guiding principles in the search for solutions has been that content moderation respects and follows international human rights standards. A first standard that follows from this principle is the non-responsibility of intermediaries for the content of third parties. This is because this is the main incentive that companies have to protect and guarantee the freedom of expression of their users. Despite the clarity with which this fundamental principle for the protection of freedom of expression is established, in the Americas, this standard is not yet guaranteed.
Regarding the actions of the companies in the management of this content, perhaps the clearest and most explicit recommendation has emerged from the 2018 Report of the UN Rapporteur David Kaye: That the content intermediary companies adopt the Test for their self-regulation and their practices tripartite: Legality, proportionality and necessity.
This proposal, which in principle sounds good, is not easy to interpret or implement. Illegal content included in terms of service and moderated by companies has certain characteristics and in its determination and implementation there is a shared responsibility between the public and private sectors. However, the equation is not without its problems when the state interpretation is contrary to or different from the private interpretation. Not to mention when the interpretation of human rights organizations is contrary to the State.
Regarding the legal and self-regulated content by private companies, it is appropriate here to make certain distinctions. The tripartite test first assumes that the limitations on freedom of expression fit perfectly into one of the legitimate objectives that the Convention (or the International Covenant on Civil and Political Rights, for that matter) exhaustively prescribes. But these documents, as Brenda Dvoskin recently argued, were originally designed for states, not companies. The legitimate objectives that the ACHR contemplates are raised from a State point of view (public health, national security), not commercial or private. The limits that the State has when limiting freedom of expression are clear, but not those of companies.
It is also unclear what the elements should be to assess the need for certain rules or measures. Or how is proportionality to be understood in this area.
The elements of these tests and the applicable or desirable tools to moderate content may change according to the objectives that these measures pursue. It's one thing to moderate illegal content, it's quite another to moderate legal but problematic content.
There is a consensus around the needs for transparency and minimum guarantees of due process. But little clarity and granularity as to what these concepts mean from a human rights point of view applied to a private actor. It is also unclear how these principles should affect the various intermediaries currently exercising moderation functions. Perhaps this dialogue can bring clarity on this matter.
Perhaps the most important task that this process that is beginning today can do is to contribute to these debates from a regional perspective. In any case, due to the breadth and complexity of the subject and the multiple aspects that impact it, it is essential that the IACHR clearly define the object of study in this process that begins, critically evaluating its own expertise, in a way that allows it to build on their own standards, reinforce them where required, and contribute from a regional perspective to some of the complex global dilemmas that this issue raises.
From CELE, we celebrate this first step that the Commission is taking to address this problem and that it does so with a process of open and multisectoral dialogue. Facing this process that is beginning, it is fundamental, on the one hand, to bring the States closer to this dialogue, in view of the growing legislative interest that exists in the matter; promote the participation of the entire region, including the US state and civil society, which is where many of these platforms are based; and generate clear conditions of equality for the various actors participating in the process.
Speech by Agustina Del Campo, @agustinadelcamp, Director of @CELEUP, Center for Studies on Freedom of Expression and Access to Information.