A New Constitution for Content Moderation

Social media platforms should look to human rights law to govern speech on the internet

Photo: Just_Super/Getty Images

Today, a few private companies, driven to expand shareholder value, control social media. And yet the rules of speech for public space, in theory, should be made by relevant political communities, not private companies that lack democratic accountability and oversight. If left alone, the companies will gain ever greater power over expression in the public sphere.

Governments see that corporate power and are jealous of it, as they should be. French President Emmanuel Macron said directly when he appeared before the UN’s Internet Governance Forum in November 2018 in Paris: “I deeply believe that it is necessary to regulate.” Macron is not alone. Other democratic governments are also making explicit demands that social media companies regulate their platforms in accordance with national laws or assertions of public security.

Authoritarian governments are taking cues from the loose regulatory talk among democracies. They are doing what they have long wanted to do — taking control of online expressive space from corporations and punishing individuals for criticism and reporting. Most authoritarian regimes will do what they want to restrain online speech, but there is a serious risk that states in what we might think of as Freedom House’s “partly free” category — transitional ones that seesaw between openness and control, that could tip into blossoming democracy or creeping authoritarianism — will borrow Macron’s language of regulation and deploy it to constrain debate and dissent.

Rebecca MacKinnon, one of the leading thinkers and activists of the digital age, has warned that internet freedom is threatened not only by authoritarians “but also by Western companies and democratically elected politicians who do not understand the global impact of their actions.” Activists and individual users struggle to have a voice in what has largely been a behind-the-scenes effort to define the rules for online expression.

Indeed, often forgotten are the users, the individuals who have grown to rely on social media for communication, commerce, and access to information of all kinds. A recent interaction brought this home to me…