Myth #06: You can say what you want online.
Myth: The Internet is a free-for-all space where hate speech, defamation and other forms of abuse can be expressed without limits or consequences. If a person posts something abusive on a social networking site, for example, this is protected expression, and there are no avenues through the law or otherwise to restrain that behaviour.
Busted: Many things limit what you say online, including laws, norms, community standards, advocacy, artificial intelligence and the market. All of these different modalities of regulations form the system of governance of online expression. (#1, #2) In this system, human rights are the central conceptual reference point (even if there is significant debate about how to balance human rights in difficult cases). Human rights law protects the right to freedom of expression as integral to a thriving democracy, to our sense of dignity and autonomy and search for the truth. However, the right comes with responsibilities, such as to not infringe upon the rights of others to their reputation or privacy, for national security or protection of public health or morals.
This idea of speech as a right and responsibility infiltrates all the different layers in the system of governance online. Domestic constitutions tend to frame freedom of expression this way. Criminal and civil laws prohibit certain forms of speech that are seen as particularly harmful to society, such as incitement to hatred, promotion of genocide, defamation or terrorist speech. A particular challenge online is that the offenders are often difficult to track down (#5), whether because they are located out of jurisdiction or post anonymously (although often identifiable) and speech is routed through a private intermediary. Thus, traditional command and control laws can be less effective in restraining illegal speech.
However, other forms of regulations help fill that gap, at times innovative and at other times crude. The terms and conditions of use on social networking platforms create their own limits on the right to freedom of expression, such as nudity or extreme violence. Artificial intelligence is increasingly used to ensure compliance by identifying and removing content. On some sites, the community of users regulates speech through informal social norms, such as rules of moderators, although this can spur other forms of harmful speech through mobs. Civil society and communities regulate speech by advocating for platforms to remove or put back certain content or groups. And the market regulates speech by providing alternatives to users or is hampered as a regulator through tech dominance and power.
Truth: The Internet is not a free speech paradise where anything can be posted without consequence. Rather, online speech is regulated through a complex system of governance, including laws, norms, community standards, advocacy, artificial intelligence and the market. The question is not whether you can say anything you want online – you can’t – but rather how to design the system managing free expression to be more effective and sensitive to human rights principles.
Source: Emily Laidlaw, Regulating Speech in Cyberspace: Gatekeepers, Human Rights and Corporate Responsibility (Cambridge University Press, 2015); David Kaye, Speech Police: the Global Struggle to Govern the Internet (Columbia Global Reports, 2019).