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Social Media Bans Can Be Shaped by International Human Rights Law

Jan. 28, 2021, 9:01 AM

Twitter’s decision to ban former President Trump from its platform lacked consistency and transparency, causing a stir among both his supporters and opponents, but international human rights law norms can provide the social media giant with useful standards.

The U.S. Constitution’s First Amendment does not restrain Twitter’s behavior because it applies only to government actors, yet at the international level, the United Nations has moved towards regulating the activities of transnational corporations.

This framework can provide valuable insights into developing sound user policies relating to free speech.

A Governance Gap Exists

Reactions to Twitter’s decision were mixed, with opponents of Trump’s feeling it came too late, and others wondering why Trump was banned while other objectionable world leaders continue to tweet at will. Many are concerned that a few billionaires in Silicon Valley have the power to decide whose speech should be amplified and whose should not.

Twitter and other social media companies claim that they banned Trump because he violated their rules. But those rules are something they create and change at their discretion. Moreover, Twitter has the sole power to decide whether a tweet violates a rule or not, and the public is not told who determines whether a tweet violates its policy. There is no appeal mechanism, and we don’t know who wrote the rules and what standards were used to guide them. If the procedure Twitter follows was used by a court, we would call it a kangaroo court.

It has been proposed that government regulation can address a lack of accountability at social media companies. Indeed, social media companies wield significant power and perhaps should be treated like a public utility. But there are problems with government regulation, the most important of which is that regulating social media requires coordination among a fractured legislature.

Respect for Human Rights Is Expected

Existing international human rights standards can be used to fill this governance gap, as there is increasing global agreement that multinational corporations must respect human rights. The U.N. Guiding Principles, created in 2011 after a lengthy process that included businesses, world governments, and non-profit organizations, states that “[b]usiness enterprises should respect human rights.”

Twitter’s policies should show a respect for international human rights. Although there are challenges and disagreements on how to interpret them, there are numerous U.N. human rights documents and treaties that can be used to guide its policy.

How could this work when it comes to free speech? Let’s take the Universal Declaration of Human Rights, the foundational human rights document. Article 19 states that “[e]veryone has the right to freedom of opinion and expression .. .” This requires Twitter to protect Trump’s speech regardless of whether it is racist or incites violence.

However, Article 29(2) of the declaration states that “[i]n the exercise of his rights and freedoms, everyone shall be subject only to such limitations … for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”

This suggests that Twitter can refer to Article 29(2) to prohibit Trump’s speech on the basis that it harms others or challenges the public order.

Look to Multi-Stakeholder Committees

This still leaves open the question about who decides when a Tweet violates the requirements of international human rights. Social media companies should form a committee to determine when a user has violated its policy or international human rights law. It should be composed of a wide array of stakeholders, including a representative from a non-profit organization, the company, and legal scholars or other experts.

Currently, Twitter has a “global enforcement team” consisting of Twitter employees that enforce their user policy.” Facebook, on the other hand, has created an independent oversight board to hear appeals from users who have been banned. They are currently deciding whether or not to reverse Facebook’s decision to ban Trump.

There is precedent for such multi-stakeholder committees within corporations. The Indian law, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, requires corporations in India to create a committee where employees can report incidents of sexual harassment. This committee must include at least one woman from a human rights organization. Having members from outside the company makes the process more fair, consistent, and transparent, as it would for Twitter and other social media companies. Twitter does have a Trust and Safety Council with non-profit organizations as members, but the council does not appear to have any decision-making authority.

Although Twitter is engaging in activities that seem to impact peoples’ rights to speak and be heard, it’s insulation from the First Amendment does not allow it freedom to ignore international human rights standards. Global consensus requires businesses to respect human rights in their operations, and as such, Twitter and social media companies should design user policies based on human rights norms.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Sital Kalantry is a law professor at Cornell Law School and an expert in international human rights and comparative law focusing on the study of Indian law. Informed by a decade of human rights practice in international and domestic courts, her work focuses on understanding mechanisms that best promote compliance with international human rights.

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