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Thursday, August 8, 2019

Polish court enjoins Facebook 'private censorship':
just one sign of new norms in digital rights

Much worry about censorship today focuses on the private sector, specifically and especially the large tech companies--Google, Facebook, Twitter--who have so much power over what we read, hear, and see.  When I was in journalism school, in ethics class in the early 1990s, a student once mentioned the possibility of a news organization withholding a sensitive story and worried that that would be "censorship."  Professor Lou Hodges--a great teacher, great person, since deceased--vigorously corrected the student, saying that censorship by definition must be governmental action. 

Louis Hodges, W&L
Well denotational niceties aside, and with the great respect due to Professor Hodges, I'm not sure the distinction remains salient.  I've been worried about the private sector in the free speech realm for a long while.  I've already posited in print that the greatest looming threat to the freedom of information around the world today is not government, but private corporations, and I've started writing about what can be done (what already is being done in Africa, relative to: the United States, India, and Europe, forthcoming).  Indeed, even the classical distinction between freedom of expression and the freedom of information has lost much salience in the information age.

In the United States, for good historical reasons, our constitutional law draws a sharp line between the freedom of speech and the freedom of information, and also between state action, "censorship," and private action, so-called "private censorship."  Both of those lines have eroded in the real world, while our law stubbornly insists on them.

Foreign constitutional systems, such as the European and African human rights regimes, do not come with the historical baggage that carved these lines in U.S. constitutional law.  These younger systems are proving more adept at navigating the problem of private action that would suppress speech and information.  That flexibility has meant full employment for lawyers in the counsel offices of Big Tech.

It also means that the law of the internet and the law of digital rights is no longer being authored in the United States.

In Poland, a digital rights organization called the Panoptykon Foundation--I assume named for the legendary imaginings of English philosopher Jeremy Bentham--is litigating without shame against Big Tech, Google and Facebook included.  In a suit against Facebook, Panoptykon has taken up for "SIN," an (acronymed appropriately if coincidentally?) anti-drug NGO in Poland.  SIN apparently suffered content-based take-downs and blocks on Facebook.  It's not clear why Facebook (algorithms? censors?) targeted SIN, though TechCrunch speculated that it might have to do with SIN's strategy on drug counseling: more of a "use responsibly" approach than an abstention-only approach.

The action is based on Polish statute, which guarantees freedom of speech and does not get hung up on any American-style state-action limitation.  In June, a Warsaw court ex parte ordered (in Polish, via Panoptykon) Facebook to stop blocking or removing any online SIN content, pending litigation.  Technically the respondent in the case is Facebook Ireland.  But one can imagine that American Facebook execs are on alert, as foreign courts fuss ever less over the public-private distinction.

Professor Hodges might roll over in his grave to hear me say it, but I am confident that "private censorship" will be the free speech story of the 21st century.  America will be dragged into a new world of legal norms in digital rights, willingly or not.  I would rather see us embrace this new world order and confront the problem of a runaway private sector than see our civil rights law relegated to legal anachronism.

Read about SIN v. Facebook at Panoptykon.  Hat tip @ Observacom.

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