In October 2020, Justitia released the update of the 2019 report on the impact of the German Network Enforcement Act (NetzDG) around the globe. The 2020 version found that a total of 11 new countries have followed the German template, whether by conscious policy or not. Four of these countries make specific reference to the NetzDG in the relevant laws/bills/official statements (Kyrgyzstan, Brazil, Austria, Turkey), two have an indirect link to the NetzDG (Nigeria and Cambodia) and five have no direct link identified beyond the theme and content of the assessed law/bill. Most of the States included in this report are flawed democracies or authoritarian states that do not include rule of law and free speech protections equivalent to their German counterpart.
Rushing to Judgment: Are Short Mandatory Takedown Limits for Online Hate Speech Compatible with Freedom of Expression?
This report assesses the duration of national legal proceedings in hate speech cases in selected Council of Europe member states. This is then compared to the duration of government-mandated removals of illegal hate speech under laws such as the NetzDG. Using freedom of information requests, the report studies the length of criminal hate speech proceedings in five member states of the Council of Europe: Austria, Denmark, France, Germany and the United Kingdom. The project is based on these jurisdictions as they have passed or are considering stringent intermediary liability legislations to tackle hate speech and other unlawful content. It was found that Austrian authorities took 1273.5 days on average, Danish authorities took 1341 days on average, French authorities took 420.91 days on average, Germany authorities took 678.8 days on average and the UK took 393 days. The report acknowledges crucial differences between national criminal procedure and private content moderation and believes that while any comparison should only be made indicatively, large discrepancies between the two suggest that very short notice and takedown time limits for private platforms result in systemic “collateral damage” to online freedom of expression.
This database is a compilation of 60 hate speech cases of the European Court of Human Rights and the former European Commission on Human Rights. It divides the cases thematically (ethnic hatred, violence, LGBTQ, religious hatred, totalitarianism, and genocide denial) and allows users to view cases by theme or countries. The database also includes relevant documents of Council of Europe institutions such as Parliamentary Assembly and the European Commission against Racism and Intolerance. This tool is the first of its kind and is useful for, amongst others, practitioners, civil society, researchers, and policy makers
This resource provides a global overview of the existing legislation/ regulations on hate speech around the world, including on a United Nations level, a European Union level and on social media platforms. It also includes the status of each country included vis-à-vis the International Covenant on Civil and Political Rights and reference to any potential declarations/reservations made to Article 20(2) of the Covenant which is the UN’s ‘hate speech’ clause. A table of eight major social media platforms are also incorporated in the resource, with a particular focus placed on how each one defines/understands hate speech. The tool is useful for, amongst others, policy makers, international and national institutions, civil society, lawyers, tech companies and academics coming to grips with how multifaceted and nebulous a concept like “hate speech” is.
Justitia put forth its views in the framework of a public consultation on the Hate Crime and Public Order (Scotland) Bill. Its main argumentations where that whilst welcoming the abolishment of blasphemy as a criminal offence, we are concerned about (i) the freedom of expression implications of the Bill (ii) the integration of speech and actual physical violence under one law (iii) the lacking necessity of intent in relation to the former (iv) the particularly low thresholds attached to offences aggravated by ‘prejudice’ (v) the conflict between some of the provisions and International Human Rights Law (vi) the variation of thresholds amongst protected characteristics (vii) the suitability of criminal law as a means to tackle prejudice and hate (viii) the negative impact of such a Bill on ‘minorities’ (ix) and the impact of the Bill on an already polarized climate.
Justitia put forth its views in the framework of a public consultation on amendments proposed in relation to hate crime laws in England and Wales. Given that the Law Commission has not yet considered our views, we cannot publish the full document for the time being. However, we can underline our main points of argument which were: (i) the freedom of expression implications of the consultation paper (ii) the integration of speech and actual physical violence under one law (iii) the lacking necessity of intent in relation to the former in some instances (iv) the particularly low thresholds attached to racial insults (v) the conflict between some of the recommendations and International Human Rights Law (vi) the variation of thresholds amongst protected characteristics (vii) the suitability of criminal law as a means to tackle prejudice and hate (viii) the negative impact of the proposed amendments on ‘minorities’ and (ix) the impact of the amendments on an already polarized climate.
Facebook Oversight Board: Public Consultation
Justitia and the Future of Free Speech project participated in the global feedback and input on Facebook’s Oversight Board’s Content Decision. We put forth our opinions on four cases, 1 on nudity, 2 on hate speech (1,2) and 1 on dangerous individuals and organizations.
- Mchangama J, ‘Rushing to Judgment: Examining Government Mandated Content Moderation’ (Lawfare, January 2021)
- Mchangama J, ‘Foreign Policy: How to Judge Fakebook’s New Judges’ (Foreign Policy, December 2020)
- Mchangama J & Alkiviadou N, ‘Hate Speech Jurisprudence of the ECtHR through a Qualitative and Quantitative Lens’ (ECHR Blog, November 2020)
- Mchangama J & Alkiviadou N, ‘The Digital Berlin Wall: How Censorship Built a Prototype for Online Censorship’ (Euractiv, October 2020)
- Mendiratta R, ‘No Country for Dissent – Twitter’s Anticipatory Takedown of Tweets in India’ (Verfassungsblog, August 2020)
- Mchangama J & Alkiviadou N, ‘Hate Crime and Public Order (Scotland) Bill’ (Rights! August 2020)
- Mchangama J & Alkiviadou N, ‘In Search for an Antidote: Covid-19 Impact on Freedom of Expression’ (Verfassungsblog, July 2020)
- Mchangama J & Strossen N, ‘Hate-Speech Laws are No Friend of Minorities’ (Spiked, June 2020)
- Mchangama J & Mclaughlin S, ‘Coronavirus has Started a Censorship Pandemic’ (Foreign Policy, April 2020)
- Mchangama J & Parello-Plesner J, ‘Taiwan’s Disinformation Solution’ (The American Interest, February 2020)
- Uncommon Decency (Podcast) ‘A Transatlantic Fracture over Speech?’ Mchangama J & Burwell F (January 2020)
- Verfassungsblog: ‘Facebook’s Oversight Board Just Announced Its First Cases, But It Already Needs An Overhaul’ (December 2020)
- Free to Disagree: ‘SNP Hate Crime Bill Flouts International Human Rights Law’ (September 2020)
- CPJ: ‘Germany Revisits Influential Internet Law as Amendment Raises Privacy Implications’ (October 2020)
- Politico: ‘Germany’s Balancing Act: Fighting Online Hate While Protecting Free Speech’ (October 200)
- BBC News: ‘US Election: Whoever Becomes the Next President, Social Media is Changing’ (October 2020)
- BBC: ‘A Controversa Lei Alemã que Inspira Projeto de Lei das Fake News’ (August 2020)
- Reuters: ‘Facebook’s Dilemma: How to Police Claims about Unproven COVID-19 Vaccines’ (August 2020)
- So To Speak (podcast): ‘Censorship Pandemic’ (April 2020)
- Umanesino Digitale: ‘NetzDG e Censura Globale: Lo Strano Destino Del Network Enforcement Act Tedesco’ (November 2020)
- Reason: ‘German-Style Internet Censorship Catches on Around the World’ (December 2020)
- Digitale Gesellschaft: ’Stellungnahme der Digitalen Gesellschaft e.V. zum„Entwurf eines Gesetzes zur Änderung des Netzwerkdurchsetzungsgesetzes” (NetzDG)’ (June 2020)
- DW: ‘Africa’s Online Hate Speech Laws Sound Alarm over Press Freedom’ (February 2020)
- CT Magazine: ‘Immer mehr Länder Zensieren das Internet Systematisch’ (January 2020)
- Participation in Facebook’s Roundtable on ‘Collaborating on ‘The Future of AI Governance in the EU’ (December 2020)
- Natalie Alkiviadou, Chair of the United Nation’s Minority Forum’s 13th Session on ‘Hate Speech, Social Media and Minorities’ (November 2020)
- Jacob Mchangama, Chatham House Roundtable on ‘European Approaches to Freedom of Expression’ (Moderator for session 1) (July 2020)
- Jacob Mchangama, RightsCon 2020: ‘Tackling Online Censorship’ (Session Expert) (July 2020)
- Several consultations with Facebook on issues such as misinformation, COVID 19 and new guidelines on ‘dangerous’
- Inclusion in the Working Group set up by Global Partners Digital on ‘The Future of Content ’
- Jacob Mchangama gave two lectures on hate speech at NYU´s School of Journalism.
FORTHCOMING OUTPUTS (2021)
We have an array of interesting projects coming up, including new tools, op-eds, academic pieces, reports and others. Here is a teaser of what to expect in 2021:
Purging the Platforms: Mapping the Regulation of “Harmful Content” on Eight Social Media Platforms
This report maps out the chronological development of Community Guidelines/Standards and/ or Terms of Service/ Use on eight social media platforms (Facebook, Instagram, Reddit, Snapchat, TikTok, Twitter, Tumbler and Youtube). The report focuses specifically on the categories of hate speech, offensive speech, insulting speech, misinformation and/or disinformation. As well as mapping the development of terms over time, the report assesses how these compare to freedom of expression standards under International Human Rights Law, specifically Article 19 and 20(2) of the International Covenant on Civil and Political Rights. The report commences with a narrative overview of developments in relation to content regulation on the chosen social media platforms. It then conducts a critical analysis of four themes which are of particular significance in the assessment of online content regulation.
These are (i) the compatibility between the approach to hate speech on the eight platforms considered and the principles and standards set by International Human Rights Law (ii) the broadening of protected characteristics in the ambit of hate speech, with a focus on the ramifications of this reality on minorities and (iii) the issue of election integrity on social media platforms. The report finds that over time and due to external pressure such as national legislation, developments on a European Union level and civil society activism, there has been a ‘scope creep’ in the provisions on hate speech and that documents such as Community Guidelines/Standards have been embellished, include a broad list of protected characteristics which has systematically been growing over time and are less speech protective.
Realizing a Human Rights Approach in the Era of “Platformization”
This will be a report a focusing on identifying and clarifying the applicable limits to “hate speech” and “disinformation” under International Human Rights Law as pertaining to private platforms. The report will use Article 19 of the International Covenant on Civil and Political Rights as the reference point, given the Covenant’s global nature. The report will go beyond existing interpretational aides such as General Comments, the Rabat Plan of Action and the Joint Declaration on Freedom of Expression and ‘Fake News,’ Disinformation and Propaganda and seek to further break down the obligations identified therein in order to make them operational for social media platforms which are dependent on moderating content at scale. It will draw on relevant case law from regional human rights courts as well as from constitutions and case law from free and democratic states that have ratified the ICCPR. Justitia will include and seek input from a number of stakeholders including human rights organizations, tech companies and media organizations. Justitia will present the partial findings of the report focusing on dis- and misinformation at a side event to the Human Rights Council´s 46th Regular Session (22 February 2021 to 19 March 2021) with a panel debate including representatives from tech companies, governments, media organizations and human rights organizations. The project is supported by the Danish Ministry of Foreign Affairs.
FFS will produce a set of “model community standards” that reflect robust free speech principles, informed by the findings of the other components of the FFS project. The model community standards will be published on the FFS website and presented to key stakeholders such as tech companies, activists and policy makers at conferences such as RightsCon and Websummit with the aim of getting them endorsed and ultimately reflected in the community standards of global tech companies. The work on the community standards will be informed by and benefit from the activities of the working group on Taxonomies for the Internet and Jurisdiction Policy Network, chaired by CGFE Associate Director Hawley Johnson. The working group includes members from the tech community including Disney, Microsoft and Facebook as well as representatives from the Canadian and British Governments. This group has been working on identifying proper responses to online harms. The working group will allow the FFS model community standards to tap into a network of high-level decision makers from both the corporate world as well as government in order to ensure maximum impact. This process may continue into 2022.
The publication of the model community standards holds great promise in creating standards that emanate from strong free speech principles which are informed by social research on the harms and benefits of free speech. The standards have the potential to significantly reduce the amount of content deleted by tech companies on flimsy and arbitrary grounds, while ensuring clear and transparent criteria understandable by both moderators and users alike. As such, the standards will make an important contribution to the handling of phenomena such as “hate speech”, “disinformation”, glorification of terrorism”, “incitement” and other frameworks through which online content is prohibited.
- Mchangama J. & Alkiviadou N.: ‘Hate Speech and the European Court of Human Rights: Whatever Happened to the Right to Offend, Shock or Disturb?’ Human Rights Law Review
- Mchangama J. & Skorini H., ‘Tragedy and Triumph: Human Rights and the Struggle for Free Speech from 1945–2020.’ Human Rights Quarterly
- Alkiviadou N., ‘The Legal Regulation of Hate Speech: The United Nations Framework as the Common Denominator for Europe and Asia.’ European-Asian Journal of Law and Governance
- Alkiviadou N., ‘Ain’t that Funny? A Jurisprudential Analysis of Humour in Europe and the U.S.’ European Journal of Humour Studies
- Jacob J.: ‘A History of Hate and Abuse’ Institute of Economic Affair, Buckingham University
- Bjørnskov C., Mchangama J. et.al.: ‘Does Freedom of Expression Cause Less Terrorism?’ Political Studies