B Explanatory memorandum
by Mr Frédéric Reiss, rapporteur
1 Introduction
1. The United Nations Human Rights
Council declared in its Resolution A/HRC/RES/32/13 of 1 July 2016 that
“[…] the same rights that people have offline must also be protected
online, in particular freedom of expression, which is applicable
regardless of frontiers and through any media of one’s choice, in
accordance with articles 19 of the Universal Declaration of Human
Rights and of the International Covenant on Civil and Political
Rights.” In doing so, it recalled its Resolutions A/HRC/RES/20/8
of 5 July 2012 and A/HRC/RES/26/13 of 26 June 2014, on the subject
of the promotion, protection and enjoyment of human rights on the
Internet.
2. The internet is a technological platform that can be utilised
for different purposes and for the provision of very different types
of services. Therefore, the internet cannot be seen as a medium
comparable to the press, radio and television, but rather as a distribution
platform which can facilitate the interaction between different
kinds of providers and users.
3. The internet is not only a space for what is generally understood
as public communication but also a platform that enables the operation
of different types of private communication tools (email and private messaging
applications in general) and has also created new hybrid modalities
which incorporate characteristics of both (for example, applications
that allow the creation of small groups or communities and the internal
dissemination of content).
4. Besides its communications features, the Internet has also
proved to be a very powerful tool to facilitate the deployment of
the so-called digital economy. The Covid-19 pandemic has particularly
intensified the electronic acquisition or provision of goods and
economic services thus creating new spaces for new business models
to prosper.
5. In the course of the recent years, a very specific category
of online actors has taken a central place in most legal and policy
debates.
6. In 2018, the Committee of Ministers of the Council of Europe
adopted a Recommendation on the role and responsibilities of Internet
intermediaries,
Note which described these actors as
“(a) wide, diverse and rapidly evolving range of players”, which:
“facilitate
interactions on the internet between natural and legal persons by
offering and performing a variety of functions and services. Some
connect users to the internet, enable the processing of information
and data, or host web-based services, including for user-generated
content. Others aggregate information and enable searches; they
give access to, host and index content and services designed and/or
operated by third parties. Some facilitate the sale of goods and
services, including audio-visual services, and enable other commercial
transactions, including payments”.
7. The intermediaries have become main actors in the process
of dissemination and distribution of all types of content. The notion
of “intermediaries” refers to a wide range of online service providers
including online storage, distribution, and sharing; social networking,
collaborating and gaming; or searching and referencing.
Note
8. This report will focus on what are generally known as hosting
service providers, and particularly those who tend to engage in
granular content moderation. This includes services provided by
social media platforms like Facebook or Twitter, content sharing
platforms such as YouTube or Vimeo, and search engines like Google or
Yahoo.
9. These providers play an important role as facilitators of
the exercise of the users’ right to freedom of expression. This
being said, it is also true that the role and presence of online
intermediaries raises two main areas for concern. Firstly, the important
presence of economies of scale, economies of scope as well as network
effects favours a high degree of concentration which may also lead
to significant market failures. Secondly, the biggest players in
these markets have clearly become powerful gatekeepers who control
access to major speech fora. Like in the case of – in many aspects,
still to be solved – concentrated actors exercising a bottleneck
power in the field of legacy media (particularly the broadcasting
sector), values such as human dignity, pluralism and freedom of
expression
Note also need to be particularly and
properly considered and incorporated into the legal and policy-making
debates around platform regulation.
10. The object of this report is to elaborate on these issues
in more detail, with a particular focus on how to preserve the mentioned
values in a context where no unnecessary and disproportionate constraints
are imposed, and different business models can thrive to the benefit
of users and the society as a whole.
11. My analysis builds on the background report by Mr Joan Barata,
Note who
I warmly thank for his outstanding work. I have also taken account
of the contributions by other experts,
Note and
by several members of the committee.
2 Hosting services as an economic activity
with gatekeeping powers
2.1 Platforms
and market power
12. Online platforms constitute
a particularly relevant new actor in the public sphere, first of
all in terms of market power. They operate on the basis of what
is called network effects. In other words, the greater the number
of users of a certain platform, the greater the benefits obtained
by all their users, and the more valuable the service becomes to
them. These network effects are cross sided as the benefits or services
received by a part of the users (individual users of social media,
for example) are subsidised by other participants (advertisers).
In view of this main characteristic, it is clear that the success
of these platforms depends on the acquisition of a certain critical
mass and, from there, on the accumulation of the largest possible
number of end users.
13. The British regulatory body OFCOM has remarked, in a recent
report on “Online market failures and harms”, that besides the mentioned
network effects, companies benefit from cost savings due to their
size (economies of scale) or their presence across a range of services
(economies of scope).
Note Of special economic importance is
also the use of data and algorithms: the collection of data regarding
users’ habits and characteristics may not only improve their experience
through personalised services but also facilitate a more targeted
advertising based on a profound knowledge of consumers’ preferences
and needs. This creates the necessity to collect the highest possible
amount of data from users, as well as disincentivises the users’
search for alternative services. On top on all these elements, it
is also important to underscore the fact that business models are
becoming more complex and sophisticated as big online platforms
often combine different offers of services: social media, search,
marketplaces, content sharing, etc. For this reason, the identification
of relevant markets for the purpose of competition assessments can
become particularly complex.
14. Still from a strictly economic point of view, network effects
and economies of scale create a strong tendency towards market concentration.
In this context of oligopolistic competition driven by technology, inefficiencies
and market failures may come from the use of market power to discourage
the entrance of new competitors and the creation of barriers to
switching services or from information asymmetries.
Note
15. In the United States, in June 2019, the House Judiciary Committee
announced a bipartisan investigation into competition in digital
markets. The Subcommittee on Antitrust, Commercial and Administrative
Law examined the dominance of Amazon, Apple, Facebook, and Google,
and their business practices to determine how their power affects
the American economy and democracy. Additionally, the subcommittee
performed a review of existing antitrust laws, competition policies,
and current enforcement levels to assess whether they are adequate
to address market power and anticompetitive conduct in digital markets.
The subcommittee members identified a broad set of reforms for further
examination for purposes of preparing new legislative initiatives.
These reforms would include areas such as addressing anticompetitive
conduct in digital markets, strengthening merger and monopolization
enforcement, and improving the sound administration of the antitrust laws
through other reforms.
Note
16. In the European Union, EU Commissioners Margrethe Vestager
and Thierry Breton presented in mid-December 2020 two large legislative
proposals: the Digital Services Act and the Digital Markets Act.
Note The Digital Markets Act is aimed
at harmonising existing rules in member States in order to prevent
more effectively the formation of bottlenecks and the imposition
of entry barriers to the digital single market.
Note
2.2 Platforms
and informational power
17. The power of online platforms
goes beyond a mere economic dimension. Even in the United States, where
decisions taken by platforms affecting – including restricting –
speech have been granted strong constitutional protection, the Supreme
Court has declared that social media platforms serve as “the modern public
square,” providing many people’s “principal sources for knowing
current events” and exploring “human thought and knowledge.”
Note
18. Same legal and regulatory rules that apply to offline speech
must in principle also be applied and enforced regarding online
speech, including content distributed via online platforms. Enforcement
of general content legal restrictions
vis-à-vis online
platforms – and consequent liability – constitutes a specific area
of legal provisions that in Europe is mainly covered by the e-commerce
Directive (in the case of the European Union
Note)
and the standards established by the Council of Europe. The Annex
to the already mentioned Recommendation CM/Rec(2018)2 of the Committee
of Ministers to member States on the roles and responsibilities
of internet intermediaries indicates that any legislation “should
clearly define the powers granted to public authorities as they
relate to internet intermediaries, particularly when exercised by
law-enforcement authorities” and that any action by public authorities
addressed to internet intermediaries that could lead to a restriction
of the right to freedom of expression must respect the three-part
test deriving from Article 10 of the European Convention on Human
Rights (ETS No. 5).
19. Besides this, hosting providers do generally moderate content
according to their own – private – rules. Content moderation consists
of a series of governance mechanisms that structure participation
in a community to facilitate co-operation and prevent abuse. Platforms
tend to promote the healthiness of debates and interactions to facilitate
communication among users.
Note Platforms adopt these decisions
on the basis of a series of internal principles and standards. Examples
of these moderation systems are Facebook’s Community Standards,
Note Twitter’s Rules and Policies
Note or YouTube’s Community Guidelines.
Note In any case, it is clear that platforms
have the power to shape and regulate online speech beyond national
law provisions in a very powerful way. The unilateral suspension
of the United States former President Donald Trump accounts on several
major social media platforms has become a very clear sign of this
power. The amount of discretion that global reaching companies with
billions of users have in order to set and interpret private rules
governing legal speech is very high. These rules have both a local
and global impact on the way facts, ideas and opinions on matters
of relevant public interest are disseminated.
20. Many authors and organisations have warned that intermediaries
promote content in order to maximise user engagement and addiction,
behavioural targeting, and polarisation.
Note On the other hand, it is also important
to note that public understanding of platforms’ content removal
operations, even among specialised researchers, has long been limited,
and this information vacuum leaves policy makers poorly equipped
to respond to concerns about platforms, online speech, and democracy.
Recent improvements in company disclosures may have mitigated this
problem, yet a lot is still to be achieved.
Note This
being said, it is also worth noting that big platforms already have
a long record of mistaken or harmful moderation decisions in areas
such as terrorist or extremist content.
Note
21. Platforms do not only set and enforce private rules regarding
the content published by their users. They also engage in thorough
policing activities within their own spaces as well as play a fundamental
role in determining what content is
visible online
and what content – although published – remains hidden or less notorious
than other. Despite the fact that users are free to directly choose
content delivered via online hosting providers (access to other
users’ profiles and pages, search tools, embedding, etc.) platforms’
own recommender systems are extremely influential inasmuch as they
are in a central position among their interfaces and have become
key content discovery features.
Note Being true that final recommendation
results are the outcome of a bilateral interaction between the users
– including their preferences, bias, background, etc. – and the
recommender systems themselves, it also needs to be underscored
that the latter play an important gatekeeping role in terms of prioritisation,
amplification or restriction of content.
22. On the basis of the previous
considerations it needs to be underscored, firstly, that no recommender system
is or can be considered or pre-determined to function on a completely
neutral basis. This is due not only to the influence played by users’
own preferences but also by the fact that platforms’ content policies
are often based on a complex mix of different principles: stimulating
user engagement, respecting certain public interest values – genuinely
embraced by platforms or as the result of policy makers and legislators’
pressures –, or adhering to a given notion of the right to freedom
of expression. Probably the only case where a set of content moderation
policies might deserve the qualification of neutral would be, in
fact, the absence of them. However, requesting platforms to host,
under no categorisation or pre-established criteria, a pile of pieces
of raw content, subjected to the only requirement of respecting
the law, would transform them into cesspools where spam, disinformation,
pornography, pro-anorexia and other pieces of harmful information
would be constantly presented to the user. This scenario is not
attractive either for users or for companies. Moreover, experiences
of this kind of initiatives – such as 4chan or 8chan in the United
States – have shown that among other options, platforms of this
nature are often used by groups promoting anti-democratic values,
questioning the legitimacy of election processes and disseminating
content contrary to the basic principles of human dignity – at least
the way this principle is understood and protected in Europe.
23. Secondly, no matter how precisely an automated, algorithmic
or even a machine learning tool is crafted, it can be arbitrarily
hard to predict what it can do. Unexpected outcomes are not uncommon,
and factors and glitches creating them can only be addressed once
detected. Some of these outcomes might certainly present important
human rights repercussions, particularly regarding the consolidation
of discriminatory situations: a scientific paper on technologies
for abusive language detection showed evidence of systematic racial
bias, in all datasets, against tweets written in African-American
English, thus creating a clear risk of disproportionate negative
treatment of African-American social media users’ speech.
Note
24. The third remark refers to the idea of computational irreducibility
in connection with any set of ethical/legal rules. To put it short,
it cannot be reasonably expected that some finite set of computational
principles or rules that will constrain automated content selection
systems may always behave exactly according to and serving the purposes
of any reasonable system of legal and/or ethical principles and
rules. The computational norms will always be generating unexpected
new cases and therefore new principles to handle them will need to
be defined.
Note
2.3 Disinformation
and elections as particular examples
25. This report cannot cover the
phenomenon of disinformation, mal-information and mis-information
in all its extension.
26. The notion of disinformation, which is the most commonly used,
covers speech that falls outside already illegal forms of speech
(defamation, hate speech, incitement to violence) but can nonetheless
be harmful.
Note According to the European Commission,
disinformation is verifiably false or misleading information that, cumulatively,
is created, presented and disseminated for economic gain or to intentionally
deceive the public and that may cause public harm.
Note It is in any case problematic as
it has direct implications on democracy, it weakens journalism and
some forms of traditional media, creates big filter bubbles and
eco chambers, it can be part of hybrid forms of international aggression,
through the use of State-controlled media, it creates its own financial
incentive, it triggers political tribalism, and it can be easily
automatised. Tackling disinformation, particularly when disseminated
via online platforms, requires undertaking a broad and comprehensive
analysis incorporating diverse and complementary perspectives, principles
and interests.
27. In addition to this, it is also important to note that the
problem is not really the disinformation phenomenon or fake news
itself, but the effect that the fake news creates – the manipulation
of people, often political, but not necessarily so.
Note Therefore, rather than putting the
focus on content regulation of disinformation, it is important to
concentrate the rules on the causes and consequences of it.
Note As the UN Special Rapporteur on
the promotion and protection of the right to freedom of opinion
and expression, Irene Khan, has indicated in her first report to
the Human Rights Council on the threats posed by disinformation
to human rights, democratic institutions and development processes,
Note “disinformation tends to thrive
where human rights are constrained, where the public information
regime is not robust and where media quality, diversity and independence
is weak”.
28. Due to the direct connection with the right to freedom of
expression, an excessive focus on legal, and particularly, restrictive
measures could lead to undesired consequences in terms of free exchange
of ideas and individual freedom. According to the Joint Declaration
on freedom of expression, “fake news”, disinformation and propaganda
adopted on 3 March 2017 by the UN Special Rapporteur, the Organisation
for Security and Co-operation in Europe Representative on Freedom
of the Media, the Organisation of American States Special Rapporteur
on Freedom of Expression and the African Commission on Human and
Peoples' Rights Special Rapporteur on Freedom of Expression and
Access to Information,
Note general prohibitions on the dissemination of
information based on vague and ambiguous ideas, including “false
news” or “non-objective information”, are incompatible with international
standards for restrictions on freedom of expression, State actors
should not make, sponsor, encourage or further disseminate statements
which they know or reasonably should know to be false (disinformation)
or which demonstrate a reckless disregard for verifiable information
(propaganda), State actors should, in accordance with their domestic
and international legal obligations, and their public duties, take
care to ensure that they disseminate reliable and trustworthy information,
including matters of public interest, such as the economy, public
health, security and the environment, and public authorities must promote
a free, independent and diverse communications environment, including
media diversity, ensure the presence of strong, independent and
adequately resourced public service media, and take measures to promote
media and digital literacy.
29. Connected to this, many experts and international organisations
have particularly warned about how the so-called information disorder
(in the terminology used by the Council of Europe
Note) distorted the communication ecosystem
to the point where voters may be seriously encumbered in their decisions
by misleading, manipulative and false information designed to influence
their votes.
Note Main
risk factors in this context are: the lack of transparency of new
forms of advertising online, which can too easily escape the restrictions
applicable to advertising on traditional media, such as those intended
to protect children, public morals or other social values; the fact
that journalists, whose behaviour is guided by sound editorial practices and
ethical obligations, are no longer the ones holding the gatekeeper
role; and the growing range of disinformation including electoral
information, available online, in particular when it is strategically disseminated
with the intent to influence election results.
3 Considerations
regarding possible solutions
30. I will present in the following
paragraphs the main principles, values and human rights standards
that I believe could be considered to articulate proper and adequate
solutions to the different issues mentioned above.
31. Regarding the economic power of platforms, it is important
to assess whether general competition law may be useful in order
to partially or totally address such matters, taking also into account,
as it has already been mentioned, the fact that the identification
of relevant markets for the purpose of competition assessments can
become particularly complex. The diversity and flexibility of business
models and services offered by a wide range of types of platforms
make it necessary a case-by-case analysis as well as the possible consideration
of specifically tailored ex post solutions, such as for example
data portability and platform interoperability. Interventions need
to be carefully considered and defined in order to avoid unintended
and harmful outcomes, particularly when it comes to incentives to
entry and innovation.
32. It is important to note that a few innovative remedies to
mitigate the power of platforms have already been presented by experts
in the field of what can be called “algorithmic choice”. These include
giving users the possibility of receiving services from third-party
ranking providers of their choice (and not those of the platform
they are using), which might use different methods, and emphasise
different kinds of content; or giving the user the choice to apply
third-party constraint providers, which would deliver content following
a classification previously made by the user him/herself.
Note In a recent contribution
by Francis Fukuyama and other authors, it is proposed that online
platforms are forced by regulation to allow users to install what
is generally called “middleware”. Middleware is software, provided
by a third party and integrated into the dominant platforms, that
would curate and order the content that users see. This may open
the door to a diverse group of competitive firms that would allow
users to tailor their online experiences. In the opinion of the
authors, this would alleviate platforms’ currently enormous editorial
control over content and labelling or censoring speech and enable
new providers to offer and innovate in services that are currently
dominated by the platforms (middleware markets).
Note This solution raises many interesting
questions, although its proper implementation would also need to
take into account important implications, particularly in terms
of data protection.
33. The law may regulate filtering (by any means, human or automated,
or both) by requiring platforms to filter out certain content, under
certain conditions, or by prohibiting certain content to be filtered
out. Such regulation would ultimately aim to influence users’ behaviour,
by imposing obligations on platforms.
Note This kind of legislation needs to
contain enough safeguards so that the intended effects do not unnecessarily
and disproportionately affect human rights, including freedom of
expression. In any case, any legislation imposing duties and restrictions
on platforms with further impact on user’s speech must be exclusively
aimed at dealing with illegal content thus avoiding broader notions
such as “harmful content”. In other words, it cannot enable or establish
State interventions which would otherwise be forbidden if applied
to other content distribution or publication means.
34. Regarding the use of artificial intelligence and automated
filters in general for content moderation, it is important to understand
that nowadays, and when it comes to the most important areas of
moderation, the state of the art is neither reliable nor effective.
Policy makers should also recognise the role of users and communities
in creating and enabling harmful content. Solutions to policy challenges
such as hate speech, terrorist propaganda, and disinformation will
necessarily be multifaceted and therefore mandating automated moderation
by law is a bad and incomplete solution.
Note It is also important to acknowledge
and properly articulate the role and necessary presence of human
decision makers,
Note as well as the participation of
users and communities in the establishment and assessment of content
moderation policies.
Note
35. Regarding the specific case of election processes, the European
Commission for Democracy through Law (Venice Commission) has recommended
a series of measures such as the revision of rules and regulations
on political advertising in terms of access to the media and in
terms of spending; enhancing accountability of internet intermediaries
as regards transparency and access to data, promoting quality journalism;
and empowering voters towards a critical evaluation of electoral
communication in order to prevent exposure to false, misleading
and harmful information, together with efforts on media literacy
through education and advocacy.
Note
36. Apart from legal instruments, governmental and non-governmental
organisations at national, regional and international levels have
been developing ethics guidelines or other soft law instruments
on artificial intelligence, broadly understood. Despite the fact
that there is still no consensus around the rules and principles that
a system of artificial intelligence ethics may entail, most codes
are based on the principles of transparency, justice, non-maleficence,
responsibility, and privacy.
Note The
Consultative Committee of the Council of Europe Convention for the
protection of individuals with regards to the automatic processing
of personal data (ETS No. 108, “Convention 108”), adopted on 25
January 2019 the “Guidelines on Artificial Intelligence and Data Protection”.
They are based on the principles of the Convention and particularly
lawfulness, fairness, purpose specification, proportionality of
data processing, privacy-by-design and by default, responsibility
and demonstration of compliance (accountability), transparency,
data security and risk management.
Note
37. On 8 April 2020 the Committee of Ministers of the Council
of Europe adopted the Recommendation CM/Rec(2020)1 to member States
on the human rights impacts of algorithmic systems. It affirms,
above all, that the rule of law standards that govern public and
private relations, such as legality, transparency, predictability, accountability
and oversight, must also be maintained in the context of algorithmic
systems. It also stresses the fact that when algorithmic systems
have the potential to create an adverse human rights impact, including effects
on democratic processes or the rule of law, these impacts engage
State obligations and private sector responsibilities with regard
to human rights. It therefore establishes a series of obligations
for States in the fields of legal and institutional frameworks,
data management, analysis and modelling, transparency, accountability
and effective remedies, precautionary measures (including human
rights impact assessments), as well as research, innovation and
public awareness. The recommendation also includes, beyond States’ responsibilities,
an enumeration of those corresponding to private sector actors, vis-à-vis the same areas previously
mentioned, and in particular the duty of exercising due diligence
in respect of human rights.
38. The European Commission, upon reiterate requests and demands
from other EU institutions, civil society and the industry, recently
proposed a new set of rules regarding the use of artificial intelligence.
In the opinion of the Commission, these rules will increase people’s
trust in artificial intelligence, companies will gain in legal certainty,
and member States will see no reason to take unilateral action that
could fragment the single market.
Note It is impossible to describe and
analyse the proposal within the framework of this report. In any
case it is worth noting that it essentially incorporates a risk-based
approach on the basis of a horizontal and allegedly future-proof
definition of artificial intelligence. Grounded in different levels
of risk (unacceptable risk, high-risk, limited risk and minimal
risk) the proposal articulates a series of graduated obligations,
taking particularly into account possible human rights impacts.
The Commission proposes that national competent market surveillance
authorities supervise the new rules, while the creation of a European
Artificial Intelligence Board would facilitate their implementation.
The proposal also envisages the possible use of voluntary codes
of conduct in some cases.
39. Entities that use automation in content moderation must be
obliged to provide greater transparency about their use of these
tools and the consequences they have for users’ rights.
Note Such rules must be capable of incentivising
their full and proper compliance.
Note It is also important that before
adopting any legal rule or regulation there is a proper and common
understanding about the kind of information that is necessary and useful
to be disclosed via transparency obligations and the public interests
that legitimise such obligations. In addition, civil society organisations
and regulators need to count on sufficient knowledge and expertise
in order to properly assess the information they may request within
the context of their functions and responsibilities. The proposed
Digital Services Act in the context of the European Union contains
remarkable provisions aimed at establishing transparency obligations
vis-à-vis online platforms graduated on the basis of size. They
include reporting on terms and conditions (article 12), content
moderation activities and users (articles 13 and 23), statements
of reasons regarding decisions to disable access or remove specific
content items (article 15), online advertising (article 24), and
recommender systems (article 29).
40. Transparency of social media recommendations has been classified
in three main categories: user-facing disclosures, which aim to
channel information towards individual users in order to empower
them in relation to the content recommender system; government oversight,
which appoints a public entity to monitor recommender systems for
compliance with publicly-regulated standards; and partnerships with
academia and civil society, which enable these stakeholders to research
and critique recommender systems. In addition to these areas, experts
have also advocated for a robust regime for general public access.
Note
41. Additional areas vis-à-vis transparency
in the design and use of artificial intelligence include, firstly,
the relationship between the developer and the company: both parties
need to share information and a common understanding regarding the
system that is to be developed and the objectives it is going to
fulfil. Secondly, no matter how precise and targeted legal and regulatory
obligations may be, it might be important to count on proper independent
oversight mechanisms (also seeking to avoid lengthy litigation procedures
before the courts) that could check any specific transparency request
in order to properly safeguard certain areas of public or legitimate
private interests (for example, the protection of commercial secrets).
Thirdly, independent review mechanisms must count on proper outcome
assessment tools (both at quantitative and qualitative levels) in order
to scrutinise the adequateness and effectiveness of the rules in
place. Such tools need to particularly focus on identifying disfunctions
and unintended results (false positives) and impacts on human rights.
4 Conclusions
42. Online communication has become
an essential part of people’s daily lives. Therefore, it is worrying
that a handful of internet intermediaries are de
facto controlling online information flows. This concentration
in the hands of a few private corporations gives them huge economic
and technological power, as well as the possibility to influence
almost every aspect of people’s private and social lives.
43. To address the dominance of a few internet intermediaries
in the digital marketplace, member States should use anti-trust
legislation. This may
enable citizens to have greater choice when it comes to sites that protect
their privacy and dignity.
44. Crucial issues for internet intermediaries and for the public
are the quality and variety of information, and plurality of sources
available online. Internet intermediaries are increasingly using
algorithmic systems, which can be abused or used dishonestly to
shape information, knowledge, the formation of individual and collective opinions
and even emotions and actions. Coupled with economic and technological
power of big platforms, this risk becomes particularly serious.
45. The use of artificial intelligence and automated filters for
content moderation is neither reliable nor effective. Big platforms
already have a long record of mistaken or harmful content decisions
in areas such as terrorist or extremist content. Solutions to policy
challenges such as hate speech, terrorist propaganda and disinformation
are often multifactorial. It is important to acknowledge and properly
articulate the role and necessary presence of human decision makers,
as well as the participation of users in the establishment and assessment
of content moderation policies.
46. Today there is a trend towards the regulation of social media
platforms. Lawmakers should aim at reinforcing transparency and
focus on companies’ due processes and operations, rather than on
the content itself. Moreover, legislation should deal with illegal
content and avoid using broader notions such as harmful content.
47. If lawmakers choose to impose very heavy regulations on all
internet intermediaries, including new smaller companies, this might
consolidate the position of big actors which are already in the
market. In such a case, new actors would have little chance of entering
the market. Therefore, there is a need for a gradual approach, to
accommodate different types of regulations on different types of
platforms.
48. Member States must strike a balance between the freedom of
private economic undertakings, with the right to develop their own
commercial strategies, including the use of algorithmic systems,
and the right of the public to communicate freely online, with access
to a wide range of information sources.
49. Finally, internet intermediaries should assume specific responsibilities
regarding users’ protection against manipulation, disinformation,
harassment, hate speech and any expression which infringes privacy
and human dignity. The functioning of internet intermediaries and
technological developments behind their operation must be guided
by high ethical principles. It is from both a legal and ethical
perspective that internet intermediaries must assume their responsibility
to ensure a free and pluralistic flow of information online which is
respectful of human rights.
50. The draft resolution which I prepared builds on these considerations.
