Should Facebook be allowed to ban or censor its users?

American radio host, author, conspiracy theorist, and documentary filmmaker Alex Jones is among the far-right figures banned by Facebook. Picture: Nick Ansell/PA

A Polish group is suing the social media giant, which it claims is a public utility, for doing just that, in a potentially landmark case, says Leonid Bershidsky.

Facebook is often criticised for not doing enough to police its platform for hate speech. But the opposite has also been a problem: Mark Zuckerberg’s company uses rather vague ‘community standards’ to remove users and posts. 

It doesn’t explain exactly how it applies them, either. Now, a Polish court may decide it should.

When Facebook banned Alex Jones, Milo Yiannopoulos, Louis Farrakhan, Laura Loomer, and others last week, all it said was that “the process for evaluating potential violators is extensive and it is what led us to our decision”. 

The prominent right-wingers, with huge audiences on the Facebook-owned platforms, didn’t, in other words, get an explanation.

Those banned from Facebook and Instagram last week might look at Poland, where a local, non-governmental organisation is suing Facebook for removing its page. The Polish non-profit, called the Civil Society Drug Policy Initiative and known by the Polish abbreviation SIN, filed suit against Facebook’s European arm in the Warsaw District Court this week. 

At least in Europe, the case may help set up more transparent procedures for banning content, and its creators, from social networks.

The group specialises in harm reduction, an approach to fixing drug-related social problems by removing the stigma from drug use and respecting users’ rights. 

It may be controversially soft on illegal drug users, but the approach has been backed by the UN and influential private donors and is by no means illegal.

SIN says Facebook shut down its page last year, without explaining what rules it had broken; the organisation used the social network’s appeal procedure, but the ban was upheld, again without a clear explanation. 

SIN activists suspect that Facebook’s human moderators, or perhaps an algorithm, erroneously decided that the page, with 16,000 subscribers, encouraged drug use.

The group is represented pro bono by a prominent Warsaw law firm and aided by another NGO, Panoptykon, which describes itself as a civil society watchdog over all kinds of regulators. 

SIN mostly wants the page reinstated, because it says it was important as a hotline for drug users, as well as an information channel. Panoptykon’s goals are broader: It is trying to set a precedent and have the practice it describes as “private censorship” explicitly regulated.

Poland has a right-wing, nationalist government, and the ruling Law and Justice Party has long grumbled about US-based social networks’ banning practices. Like those in the US who were banned, its members see a liberal bias in the platforms’ policies. 

In 2017, the country’s Digital Affairs Ministry drafted a bill that would make the social networks liable for ‘over-removal’ of content, but the bill never made it to parliament, derailed by a ministry reorganisation. 

Panoptykon’s approach, however, is distinct from the right-wing criticism: It is trying to emphasise the non-partisan nature of the “private censorship” issue by backing the drug-policy non-profit’s case.

Panoptykon lawyer, Dorota Glowacka, argues that although social media companies are, in principle, free to kick people and organisations off their networks on the basis of their terms of service, Facebook, because of its global dominance and huge number of users, doesn’t enjoy full discretion in this area. 

It should, Glowacka says, “observe human rights standards” and its freedom to withhold access to its private forum should be limited, because users have so few viable alternatives.

This line of attack skirts an issue long debated by Facebook and its critics: Whether the company is a tech platform for users’ free expression or a publisher with its own editorial policy. 

Publicly, Facebook says it’s a tech platform, which is supposed to absolve it of responsibility for what appears on it (and explain why it doesn’t pay for content). But in a US court case last year, its lawyers argued that it was a publisher and its decisions on what not to publish should be protected for that reason.

I’d be in favour of treating Facebook and its peers as publishers, holding them liable for content and getting them to pay news organisations for providing core material for debate on their platforms.

But Panoptykon’s approach — effectively treating the massive social networks as public utilities — also has its advantages: If upheld by the courts, first in Poland and then on the EU level, it would force the platforms to leave all lawful speech alone and stop taking down posts, profiles, and pages simply because it feels like it, because a government objects to the content, or because an interest group has put pressure on them with a flagging campaign.

SIN and Panoptykon want the platforms to issue reasoned statements explaining why they removed a certain post or account and who was responsible for the decision, a human or an algorithm. 

Platforms should only remove posts for violating specific rules, and not remove entire accounts. And users, according to Panoptykon, should have recourse to courts when they want to appeal the networks’ decisions. 

These demands are largely in line with the so-called Santa Clara principles, developed by a team of ethics and tech experts and backed by the American Civil Liberties Union and the Electronic Frontier Foundation.

Trying, perhaps somewhat belatedly, to regulate major tech platforms is becoming a national sport in many countries, especially European ones. So many conflicting demands are being made on them that it’s easy to see why they resist the efforts with all the legal firepower they’ve got.

It’s difficult to comply with demands that they, on the one hand, curb hate speech, political manipulation, and the propaganda of violence; and, on the other hand, that they act as a free-speech utility for which a takedown or a ban is a rare measure of last resort. 

But, in a sense, it’s good to have the regulatory competition and all the different court cases in which the platforms are attacked from every possible angle.

Out of this chaos of adversity, clear definitions for the platforms’ functions, power, rights, and obligations should emerge. The Polish case is one to watch for those who believe the recent bans of right-wingers were unfair. It’s an issue that should, ideally, be settled by the courts in the US, too.

Leonid Bershidsky was the founding editor of the Russian business daily, Vedomosti, and founded the opinion website Slon.ru.

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