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Information and Communications Technology (ICT) companies like Google/YouTube, Facebook, Yahoo, and Twitter are in control of an enormous amount of expression on the Internet. More so than any individual country, these companies are responsible for making decisions with regard to a vast amount of Internet expression. They host billions of pages of Internet content, while responding on a daily basis to countless requests from countries and individuals around the world to take down content that is deemed objectionable or illegal. These powerful ICT companies have become the de facto sovereigns of cyberspace, with the power to balance freedom of expression against public and private interests on a day-to-day basis, as they make determinations about whether and when to accede to requests to censor speech. Google, for example, is responsible for facilitating seventy-one percent of the world’s Internet searches. As the owner of YouTube, Google is also responsible for hosting one hundred hours of new video content that users post every minute. Executives at Google are responsible for making determinations about which controversial content stays up and which comes down. Twitter decision-makers enjoy similar, vast power to determine which of the one billion tweets sent every five days get disseminated around the world and which get blocked. The same goes for Facebook, Yahoo, and other global ICT giants.

What guidelines should these companies follow in determining which content to facilitate and which to take down? Under what circumstances should ICT companies accede to governments’ or individuals’ requests to censor content? How, if at all, should they implement such censorship requests? Given that most of these powerful companies are U.S. based, some have contended that these companies should implement the United States’ speech-protective values and refuse censorship requests from other, less speech-protective countries. For example, if France requests that a U.S. based ICT company like Yahoo block content that violates French hate-speech laws, Yahoo arguably should simply ignore the request and export the First Amendment to other countries. But after a French court decision in 2000 rendered Yahoo criminally liable in France for failing to block French citizens’ access to certain hate speech content it hosted, Yahoo – and other global ICT companies – began to rethink this approach. Although initially resisting France’s power to influence what content Yahoo hosts – resulting in lengthy legal battles –Yahoo ultimately modified its policies to prohibit hosting of hate speech content. Instead of Yahoo exporting the First Amendment, it would seem in this instance that France exported its own less speech-protective laws to the U.S. and the rest of the world. How should global ICT companies respond to countries’ requests to censor content in light of the Yahoo-France dispute, in which France asserted the power to seize Yahoo’s local assets and detain local Yahoo executives for failing to comply with its laws? Is there a middle ground between imposing the First Amendment on the rest of the world, and acceding to every other country’s speech-restrictive censorship requests? How should global ICT companies balance these myriad competing concerns, amidst vastly conflicting regional free speech regimes?

In this chapter, I argue that ICT companies should adopt and implement a set of procedural guidelines embodying principles of digital due process that protect the due process rights that are essential to democratic societies, while respecting the autonomy of each democratic society to determine the contours of substantive free speech rights for its citizens. Protecting due process rights is the first step in protecting and respecting human rights, which transnational corporations – as well as countries – have a duty to protect. As United Nations’ Special Representative of the Secretary-General emphasized in his “Protect, Respect and Remedy” framework, business enterprises as well as nations have a duty to respect human rights. An important part of respecting human rights is respecting the rights of individuals to receiving due process in the protection of their rights. ICT companies should adopt and implement a set of due process principles that, I argue, are implicit in the free speech and due process jurisprudence of the International Covenant on Civil and Political Rights, the European Convention on Human Rights, and the United States Constitution. Before implementing any country’s request that they block content, ICT companies should (1) ensure that the requesting country has articulated within its laws a narrow, specific description of what speech is illegal, to confine the discretion of decision-makers and to provide fair notice to individuals of what speech is illegal in the first instance; (2) ensure that affected parties have received notice in cases where their speech has been deemed illegal and have had the opportunity to be heard in a fair, independent, and impartial proceeding before a censorship decision is ordered; (3) require that the requesting country has issued a narrowly tailored, final judicial decision adjudicating the subject speech as illegal; (4) implement the resulting blocking order only within the country mandating such blocking; and (5) implement the resulting blocking order in an open and transparent manner.

GW Paper Series

GWU Law School Public Law Research Paper No. 2017-53; GWU Legal Studies Research Paper No. 2017-53

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