Blame It All On Facebook? : Hate speech Online: Analyzing the Accountability Gap of Private Social Media Corporations in Human Rights Law

(1)

BLAME IT ALL ON

FACEBOOK?

Hate speech Online: Analyzing the Accountability Gap of

Private Social Media Corporations in Human Rights Law

7-01-2019

Karin te Grootenhuis

Prof. dr. Y.M. Donders

(2)

Information and Communication Technology (ICT) services, predominantly owned by private entities, facilitate in a type of interaction previously unimagined. The unprecedented character and effects that the development of the internet and social intermediaries have had on the velocity in which hate speech is conveyed within the contemporary digital world, illustrate the necessity for elaborative research and further legislative developments within this ground. This research aims to firstly portray this necessity, by outlining what has been done and where the current problems lie. Moreover, by exposing the current accountability gap, several viable solutions are portrayed and analyzed, considering the right to freedom of expression as a fundamental human right. This right is in essence a function with a public connotation, which in the current practice is being outsourced to ‘unaccountable private actors’. Regarding the rising influence these private actors have attained over the past decade, this research serves a pressing social and legal need for further research and development within the area of corporate accountability.

(3)

1. INTRODUCTION

The development of the internet and social media platforms have created an unprecedented1

‘ever-connected’ world, in which people worldwide can be connected in a mere ‘swipe’, ‘like’ or ‘tweet’. This created positive new opportunities and was therefore at first mainly welcomed and applauded. Nevertheless, the rising scandals of the past few years concerning the internet such as data leaks, fake news, and the spread of hate speech online, reveal a new dark side. Several social media corporations have grown so rapidly over the past years that they are evolving into entities with significant influential powers regarding its users globally. More recently, a rather alarming development has risen, in which social media corporations have become subject of concern in allegedly influencing certain ethnic conflicts and human rights abuses. Within the context of the Rohingya2_{minority in Myanmar, United Nations (UN) human}

rights experts are investigating a possible genocide within the state and have noted that Facebook played “a determining role” in the crisis in spreading hate speech against the Rohingya minority which led to a significant aggravation of the conflict.3_{The situation in}

Myanmar is pressing, leaving currently around 900 000 Rohingya refugees living in Bangladeshi camps.4_{Facebook’s influence in Myanmar, as a country emerging from half a}

century of censorship, has boosted due to improvement of internet access nationwide and the availability of low-cost SIM cards.5_{Moreover, Myanmar is behind on digital literacy, causing}

many people to be unaware of the dangers and leaving the majority of the nation’s population to believe that Facebook is the internet, creating a precarious environment virtually and non-virtually.6_{Hence, social media has facilitated the spread of hate speech to occur on a significant}

extensive scale. As one of the Buddhist monks – after having spread anti-Rohingya news and propaganda on the platform – stated: “Social media is much better than using town criers”.7

1_{Michael L. Siegel, ‘Hate Speech, Civil Rights, and the Internet: The Jurisdictional and Human Rights Nightmare’,} ALB. L.J. SCI. & TECH. (1999) p. 376.

2_{The Rohingya are a stateless Muslim minority in Myanmar, who fled due to violence to Bangladesh, see:}

<http://www.unhcr.org/rohingya-emergency.html>.

3_{Marzuki Darusman, Chairperson of the Independent International Fact-Finding Mission on Myanmar, 12 March 2018}

see: <https://www.ohchr.org/EN/HRBodies/HRC/Pages/NewsDetail.aspx?NewsID=22798&LangID=E>.

4_{Joint UNHCR/IOM Press Release, ‘UN Launches 2018 appeal for Rohingya Refugees and Bangladeshi Host}

Communities, 16 March 2018 < http://www.unhcr.org/news/press/2018/3/5aabd2564/un-launches-2018-appeal-rohingya-refugees-bangladeshi-host-communities.html>.

5_{Hereward Holland, ‘Facebook in Myanmar: Amplifying Hate Speech?’, Aljazeera 14 June 2014}

<https://www.aljazeera.com/indepth/features/2014/06/facebook-myanmar-rohingya-amplifying-hate-speech-2014612112834290144.html>.

6_{Matt Schiavenza, ‘What Facebook Does – And Doesn’t – Tell Us About Myanmar’, Asia Society, 12 June 2018}

<https://asiasociety.org/blog/asia/what-facebook-does-and-doesnt-tell-us-about-myanmar>.

7_{Doug Bock Clark, ‘Myanmar’s Internet Disrupted Society – And Fueled Extremists’, Wired, 28 September 2017}

(5)

OBJECTIVE AND SCOPE

This research aims to take the Rohingya case as an inspiration and illustration of the relevance and urgency of regulating the spread of hate speech online via social platforms. It will be analyzed to what extent social media corporations can be held accountable for violations of international human rights norms, such as in this thesis the freedom of expression, by the spread of hate speech through their platforms. The main scope is around the norms of international human rights law, since the spread of hate speech online is – given the global reach of the internet – an international problem causing harm to human dignity, that needs to be dealt with at the appropriate level. The author acknowledges the existence and evolvement of several national legislation in this regard, but also seeks to address the current deficiencies within these systems and, hence, emphasize the necessity for a ‘universal’ solution. Due to the limited length, the focus will be predominantly on the right to freedom of expression within the International Covenant on Civil and Political Rights (ICCPR)8_{, as one of the most authoritative}

judicial codifications9_{. Yet, the relevance of other human rights norms as the right to privacy}

and the protection from discrimination in this context should not be denied in practice. Moreover, a primary focus will be on the right to protect and respect – as negligence of these obligations can lead to possible accountability – leaving the right to an effective and independent remedy outside of the scope of this analysis. Lastly, whether individuals themselves – posting hate speech – should be held accountable in any way on grounds of human rights or criminal law, is beyond the scope of this thesis as well.

METHODOLOGY

First a descriptive analysis of the general obligations and responsibilities of the relevant actors within international human rights law will be distinguished. The state obligations will be discussed from the perspective of article 2 ICCPR, but also from analyzing interpretations and General Comments (GC) by UN Treaty bodies and case-law and examining the normative frameworks of the International Law Commission (ILC) Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA)10_{. Moreover, regarding non-state actors, a}

descriptive analysis of the UN Guiding Principles on Business and Human Rights (hereafter:

8_{International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976)}

art. 19(3).

9_{Ratified by 172 states}

<https://treaties.un.org/Pages/ViewDetails.aspx?chapter=4&clang=_en&mtdsg_no=IV-4&src=IND>.

(6)

the Guiding Principles)11_{and the hard law initiative of the Zero Draft}12_{and scholarly work will}

be provided. Thereafter, a descriptive analysis of the normative legal framework of freedom of expression and hate speech will be provided. The definition of hate speech will also be sought in other spheres than international law, since this basis provided insufficient tools. Furthermore, the normative framework will be discussed within the online domain from the perspective of legal realism. Lastly, the private entities’ responsibilities and its normative framework will be discussed in more detail, by the intermediary mere-conduit principle. Here a descriptive legal research will follow from the regional European Court of Human Rights’ (ECtHR) legal system and case-law as well, since international law provides for insufficient basis and interpretation, and case-law of the ECtHR can be of influential value. Thereafter, a critical reflection follows, with a special focus on legal realism and social demands. The conclusion provides both predictive and prescriptive viewpoints on the current normative framework.

STRUCTURE

First, the general obligations and responsibilities of the relevant actors will be discussed, distinguishing between state obligations for the acts by its organs or by those of private entities, and the responsibilities of these private entities themselves. Secondly, the normative frameworks of the right to freedom of expression and hate speech will be analyzed. Thereupon, a more detailed analysis will be provided on the responsibilities of social media entities and their intermediary position. Lastly, a conclusion will be provided, regarding a legal corporate accountability framework.

TERMINOLOGY AND JUSTIFICATION

The term human rights obligation refers to the legal obligations for states, laid down in treaty provisions of covenants that are ratified by the relevant state parties. Moreover, the term human rights responsibility entails a regime of ‘softer’ law which lays down certain rules of conduct that private entities need to abide by, leading to an abuse in case of non-compliance. The term state responsibility derives from the framework of the ARSIWA that holds states accountable for an act or omission, leading to an international wrongful act, attributable to that state.13_This

system has been applied within the human rights system as well and will therefore be discussed in this analysis.14_{Furthermore, the term corporate social responsibility (CSR) refers to the}

11_{HRC Resolution 17/4, ‘Guiding Principles on Business and Human Rights: Implementing the United Nations}

“Protect, Respect and Remedy” Framework’ 16 June 2011.

12_{Zero Draft, ‘Legally Binding Instrument to Regulate, in International Human Rights Law, the Activities of}

Transnational Corporations and Other Business Enterprises’, 16 July 2018< https://www.business-humanrights.org/sites/default/files/documents/DraftLBI.pdf>

13_{ARSIWA (n10), article 1}

(7)

development that companies themselves start to be more aware of their dominant role on human rights protection and illustrates a shift from mere economical obligations towards a responsibility towards the society the corporation operates within.15_{These obligations and}

responsibilities all can lead to the condition of accountability, meaning that these entities are – given their duties – “required or expected to justify their actions or decisions”.16_Furthermore,

the term social media entity will be used interchangeably with other terms as social intermediary, social network or social platform, all referring to the same notion of social digital platforms owned by private companies. Facebook, Twitter and YouTube (as part of Google) will serve as the scope of this research due to their largest user’s amount.

THE RISE OF SOCIAL MEDIA

“Today’s public consciousness is shaped not in the streets or in the parks, but in online editorials and web forums.”17_{In recent years, social media has provided an optimal setting in}

which hate speech can unify and expand tremendously.18_{Due to the low-cost and lack of a}

pre-screening procedures, the number of its users have drastically increased.19_{Thereupon, speakers}

are able to convey messages to a vast audience worldwide in a rapid pace, with the possibility to remain anonymous.20_{Consequently, identifying the sender of a certain (hateful) message is}

often difficult, but also the audience to which the information is conveyed remains often unspecified, creating a ‘psychological distance’.21_{Hence, speakers are not directly made aware}

of the possible impact of their communications and, therefore, are likely to exceed the ‘offline boundary’ to more extreme speech which could lead to unintended consequences that are equally harmful to a broader audience than initially (could be) foreseen.22_{Yet, one of the most}

challenging characteristics is that the internet is not governed by a particular entity.23_{Thus, who}

is then responsible for the hate speech conveyed online and for preserving respectably the right to free speech in these online spheres? This question will be analyzed more thoroughly in the next chapters, starting by first examining the general human rights obligations and responsibilities of the relevant actors.

15_{Anita Ramasastry, ‘Corporate Social Responsibility Versus Business and Human Rights: Bridging the Gap Between}

Responsibility and Accountability’, Journal of Human Rights 14(2) (2015) p. 238.

16_{See Oxford Dictionary <https://en.oxforddictionaries.com/definition/accountable >.}

17_{LaShel Shaw, ‘Hate Speech in Cyberspace: Bitterness Without Boundaries’, Notre Dame Journal of Law, Ethics &} Public Policy 25(2012) p. 280.

18_{Natalie Alkivadou, ‘Hate Speech on Social Media Networks: Towards a Regulatory Framework?’, Information &} Communications Technology Law (2018), p. 3.

19_{Natalie Alkiviadou, ‘Regulating Internet Hate A Flying Pig?’ JIPITEC 7(2016) p.217.}

20_{Ibid and James Banks, ‘Regulating Hate Speech Online’, International Review of Law, Computers & Technology}

(2010) p. 233.

21_{Shaw (n17) p. 280.}

22_{Iginio Gagliardone and others, Countering Online Hate Speech. UNESCO Series on Internet Freedom (2015) p.}

20.p. 14.

(8)

2. GENERAL OBLIGATIONS AND RESPONSIBILITIES OF

THE RELEVANT ACTORS

In this chapter the general obligations of states will be analyzed in light of international human rights law, by examining the normative framework of the ICCPR and interpretations and GC by the Human Rights Committee (HRC) for acts of the state itself, but also for acts beyond the scope of the state apparatus, within the scope of private entities. Thereafter, the different obligations of private entities will be analyzed in referring to the Guiding Principles and the Zero Draft Treaty.

2.1 GENERAL HUMAN RIGHTS OBLIGATIONS OF THE STATE

2.1.1 THE OBLIGATION TO RESPECT, PROTECT, AND FULFILL

The human rights law system – in contrast to other general public international law systems – is mainly involved with announcing and guaranteeing several fundamental rights for individuals versus the state apparatus.24_{Due to this ‘special character’ of human rights law a}

tripartite framework to 'respect’, ‘protect’ and ‘fulfill’ human rights was developed by Henry Shue25_{and put forward in its present form by Asbjørn Eide.}26_{Examining the normative division}

of obligations, it is essentially state-centric in nature.27_{Universal human rights treaties mostly}

provide for binding obligations regarding state parties, who collectively function as the guardians of international human rights worldwide.28_{Moreover, regarding principles of}

customary international law, this division of duties is principally focused on states as well.29

Therefore, even though the rise of new non-state entities is becoming more pressing, the primary duty-bearer within the contemporary regime of international human rights remain states.30_{This position as duty-bearer includes both positive and negative rights and contain of:}

the duty to respect human rights norms which provides that states have a negative obligation to not violate or hamper the enjoyment of these norms; the duty to protect human rights which requires states to actively provide protection for its groups and individuals against human right violations; and the duty to fulfill human rights, as a negative right to respect human rights and the positive right to implement measures that ensures the achievement of human right norms.31

24_{Frédéric Mégret, ‘Nature of Obligations’ in Daniel Moeckli, Sangeeta Shah, and Sandesh Siyukamaran,} International Human Rights Law. Oxford University Press (2018) p. 87.

25_{Henry Shue, Basic Rights: Subsistence, Affluence, and U.S.Foreign Policy. Princeton University Press (1980) p. 52.} 26_{Mégret (n24) p. 97 and Lottie Lane, ‘The Horizontal Effect of International Human Rights Law in Practice’, EJCL}

(5)2018, p. 29.

27_{Rikke Frank Jørgenson, ‘Human Rights and Private Actors in the Online Domain’ in Molly K. Land and Jay D.}

Aronson, New Technologies for Human Rights Law and Practice. Cambridge University Press (2018) p. 253.

28_{Nicola Jägers, Corporate Human Rights Obligations: in Search of Accountability. Intersentia (2002) p. 137.} 29_{Sarah Joseph and Sam Dipnall, ‘Scope of Application’ in Moeckli (24), p. 111.}

30_{Jägers (n28) p. 137.}

(9)

Hence, a state must not only respect the enjoyment of fundamental human rights by individuals vertically, but must also actively protect and fulfill that this right can be exercised in practice between individuals horizontally which is a significant element of the human rights system.32

2.2 STATE OBLIGATIONS UNDER THE ICCPR

2.2.1 ARTICLE 2

Article 2 ICCPR presents obligations for each state party to the ICCPR which are strongly linked to the tripartite framework mentioned above. Article 2(1) states that:

“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national

or social origin, property, birth or other status.”33

This provision appears to specifically call on states as the primary duty-bearer to respect and facilitate the rights under the ICCPR. Thereupon, article 2(2) ICCPR explicitly urges the state to adopt and implement legislation in order to facilitate an effectuation of the provisions laid down in the covenant.34_{The HRC in its GC 31}35_{has confirmed that these article 2 obligations}

bind state parties as a whole.36_{In light of the type of duty, the HRC has affirmed that the}

obligations under article 2 are both negative, to respect, as positive to protect and fulfil.37_Thus

– according to the obligation to protect – states should proactively facilitate an environment in which they shield individuals within its jurisdiction from infringement of their fundamental rights by third parties and in which states actively adopt appropriate legislation and judicial, educative and administrative measures in order to ensure and effectuate the specific rights.38

Hence, states – as party to the ICCPR – need to implement and give effect to the rights laid down in the treaty within its domestic system in order to facilitate for individuals to realize their rights.39_{Indeed, it can be said that the obligation to protect is the most far-reaching of the}

tripartite framework when analyzing the potential consequences of non-obedience, since it is the state that is to be held accountable when the failure to protect individuals is due to the lack of adequate adoption of relevant legislation or because of a failure to sufficiently prevent

32_Ibid.

33_{Article 2(1) ICCPR (n8) (emphasis added).} 34_{Article 2(2) ICCPR (n8).}

35_{UN HRC, General Comment 31, The Nature of the General Legal Obligation Imposed on States Parties to the}

Covenant, 26 May 2004 (CCPR/C/21).

36_{General Comment 31 (n35) para. 4.} 37_{General Comment 31 (n35) paras. 6 and 7.}

38_{Mégret (n24), p 97 and General Comment 31 (n35) para. 7.} 39_{General Comment 31 (n35) para. 13.}

(10)

breaches from occurring, which refers to the indirect horizontal effect that lies at the basis of this obligation.40

2.3 STATE OBLIGATIONS FOR PRIVATE ACTORS

The state’s obligation to protect and ensure has been proven in interpretations by the HRC to be quite extensive under the ICCPR. Yet, a relevant next analysis would revolve around the question whether, and, if so, to what extent states carry those obligations to protect and prevent abuses committed by private actors. Thus, to what extent can states be held accountable for breaches of fundamental rights of individuals by private actors? Answers will be sought by analyzing different legal frameworks, interpretations of several human rights treaty bodies, and scholarly research.

2.3.1 STATE RESPONSIBILITY AND DUE DILIGENCE

Article 1 of the ILC ARSIWA provides that state responsibility is invoked for “every internationally wrongful act” of that state.41_{This liability is at stake when an international}

wrongful act, consisting of an action or omission can be attributed to the state and constitutes a breach of an international obligation of the state.42_{The ARSIWA mechanism of state}

responsibility can be applied in the context of the ICCPR as well. In the context above, the attribution of the wrongful act was fairly simple to find since the norms breached formed a direct obligation posed on the state itself through a ratified human rights treaty provision. Nevertheless, this mechanism becomes more complex when these acts or omissions are committed by actors, outside the state apparatus. Regarding this state apparatus, the ARSIWA provides that states are responsible for acts of its organs, meaning the executive, legislature and judiciary organs.43_{Moreover, the ARSIWA determines that states can be responsible for}

violations committed by a private entity, when those private acts can be attributed to it in the instances that either the private actor is acting in governmental capacity; under the effective control of the state; or when the state adopts the action committed by the private actor as its own.44_{However, in the context that the conduct of a private entity cannot be attributed to the}

state in light of the ARSIWA mechanism of attribution, a distinct standard has evolved within the framework of international human rights law.45_{This due diligence obligation entails that}

states – next to the general obligation to protect, discussed above – also have a positive duty to

40_{Mégret (n24) p. 97 and 98.} 41_{ARSIWA (n10), article 1.} 42_{ARSIWA (n10) article 2.}

43_{ARSIWA (n10) article 4 and Joseph and Dipnall (n29) p. 114.} 44_{ARSIWA (n10) articles 5, 8, and 11.}

45_{Jonathan Bonnitcha and Robert McCorquodale, ‘The Concept of ‘Due Diligence’ in the UN Guiding Principles on}

(11)

protect individuals against the conduct of non-state actors that interfere with their human rights.46_{This principle of due diligence has been invoked and interpreted by the HRC in its GC}

31, stating that the positive obligations on states to ensure the rights laid down in the ICCPR are only fully dismissed if:

“individuals are protected by the state, not just against violations of Covenant rights by its agents, but also against acts committed by private persons or entities that would impair the enjoyment of Covenant rights in so far as they are amenable to application between private persons or entities. There may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give rise to violations by States parties of those rights, as a result of States Parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm

caused by such acts by private persons or entities.”47

Hence, this interpretation demonstrates that by invoking the principle of due diligence in the human rights sphere, the state – in its duty to protect – has to exercise due diligence regarding breaches by non-state actors against its individuals as well, by doing everything it can to protect fundamental rights.48_{The principle of due diligence was first formulated in the human right}

context in the Velásquez Rodríguez49_{case before the Inter-American Court.}50_{Here the Court}

ruled that, even though the human rights violation could not be attributed to the state entity, the state was still responsible for the actions by the private entities “not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention” which followed from article 1 of the American Convention of Human Rights (ACHR).51_{In subsequent jurisprudence this reasoning was followed by other treaty}

bodies and human rights courts. Consequently, the ECtHR stated in Osman v. United Kingdom52_{in this regard that state parties have the responsibility to do everything – that is}

reasonably to be expected from them – to protect individuals against human rights violations of third parties.53_{Furthermore, it was specified by the ECtHR that the responsibility for the}

state increases if the state party is aware, or should have been aware, that human rights were violated by a third state party or individual.54_{This illustrates the increased acceptance of the}

46_{Samantha Besson, ‘The Bearers of Human Rights’ Duties and Responsibilities for Human Rights: A Quiet}

(R)evolution?’, Social Philosophy and Policy 32 (2014) p. 255 and Timo Koivurova, ‘Due Diligence’ MPEPIL (2010) para. 33.

47_{General Comment 31 (n35) para. 8 (emphasis added).} 48_{Jägers (n28) p. 146.}

49_{Velásquez Rodríguez, IACHR, (29 July 1988).} 50_{Joseph and Dipnall (n29) p. 115.}

51_{Velásquez Rodríguez (n49) para. 172.}

52_{Osman v. United Kingdom, ECtHR (28 October 1998).}

53_{Joseph and Dipnall (n29) p. 115 and Osman v UK (n103) para. 116.} 54_Ibid.

(12)

due diligence principle in the context of human rights obligations of states for private entities. Several scholars have gone even further to state that the due diligence within this particular framework is undisputed, referring to the acceptance this view has received in practice of UN General Assembly resolutions, human rights courts and treaty bodies.55

2.4 STATE OBLIGATIONS AND THE GUIDING PRINCIPLES

There have been several initiatives and rulings that have described and clarified the state’s obligations regarding private actors. One of these practices are the Guiding Principles which were unanimously adopted in the Human Rights Council in 2011 after years of coordination by the then UN Secretary-General’s Special Representative for Business and Human Rights, John Ruggie.56_{Although the Guiding Principles are strictly viewed not build on a binding nature}

within international law, it has been argued that the unanimous adoption by the UN Human Rights Council and rather formal context in which they evolved, contributed to the overall social credibility and moved the Guiding Principles up the scale within the ‘soft law ladder’ towards a more authoritative position.57_{Hereafter, the state’s obligations under this mechanism}

will be briefly outlined.

Article 1 of the Guiding Principles specifies unconditionally that states must protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises.58_{Here the lines of the law on state responsibility are followed, providing that if the}

acts can be attributed to the states and/or if the state failed to take protective actions, it is accountable for the breach. Moreover, article 5 and its commentary thereof comprise that states cannot circumvent their own human rights obligations by delegating specific duties to private entities and not have an adequate protection system in place.59_{These highlights both the}

positive as the negative human rights duties of states. In addition, article 4 and its commentary confirm unambiguously that states are the primary duty-bearers under international human rights law.60

55_{Joseph and Dipnall (n29) p. 115 and Bonnitcha and McCorquodale (n45) p. 906.}

56_{Nadia Bernaz, Business and Human Rights: History, Law and Policy-Bridging the Accountability Gap. Routledge}

(2017) p. 193.

57_{Emily Laidlaw, Regulating Speech in Cyberspace. Gatekeepers, Human Rights and Corporate Responsibility,}

Cambridge University Press (2015), p. 97.

58_{Guiding Principles (n11) Article 1.}

59_{Guiding Principles (n11) Commentary Article 5.} 60_{Guiding Principles (n11) Commentary Article 4.}

(13)

2.5 HUMAN RIGHTS RESPONSIBILITIES NON-STATE ACTORS

In the previous section, state obligations were analyzed along the obligations to protect, respect and fulfill. Since in this thesis, the accountability of private entities is at stake, the next section will focus on the responsibilities of non-state actors.

2.5.1 THE SOFT LAW REGIME: THE GUIDING PRINCIPLES

The Guiding Principles aimed to close the accountability gap regarding private entities by setting standards for both states and business entities regarding fundamental human rights. Hence, the 2nd_{pillar of the Guiding Principles provides that corporations should respect human}

rights.61_{This norm is to be applied to all business enterprises operating nationally and}

transnationally and entails that the corporation needs to avoid causing or contributing to human rights violations through their own activities and that, in case of violation, the business entity should address the human rights effects.62_{Moreover, the corporation should seek to prevent or}

mitigate any human rights violation that is in direct link to the business activities of the entity or its products or services of their partners, even though the entity has not directly provided a contribution to that violation.63_{This pillar of corporate responsibility refers widely to the –}

aforementioned in the context of states – due diligence obligation to act according to human rights principles and stipulates that corporations should do everything that is reasonably to be expected from them to avoid involvement with alleged human rights violations.64_{This due}

diligence practically entails for a company to adopt a policy commitment to respect human rights; assess its potential and actual human rights impacts; integrate these findings into the company’s policy; track the effectiveness of this prevention policy; and provide transparent insight in its due diligence policy and its results to the public.65_{These responsibilities appear to}

be quite far-reaching and could – if well implemented – set a very effective tool in combatting unaccountable human rights violations by corporations. Nevertheless, where the 1st_{and 3}rd

pillar of the Guiding Principles have obtained a binding status within international law and provide for positive duties on the state, the 2nd_{pillar remains within the spheres of soft law.}66

Consequently, business entities cannot strictly be legally bound by the tripartite obligations to protect, respect and fulfill human rights law as is the framework for states.67_{This characteristic}

61_{Guiding Principles (n11) Article 11.}

62_{Guiding Principles (n11) Commentary Article 11 and Article 13 (a).} 63_{Guiding Principles (n11) Article 11 (b).}

64_{Guiding Principles (n11) Commentary Article 17.}

65_{Emily B. Laidlaw, ‘Myth or Promise? The Corporate Social Responsibilities of Online Service Providers for Human}

Rights’ in Mariarosaria Taddeo and Luciano Floridi, The Responsibilities of Online Service Providers. Springer (2018), p. 142.

66_{Ibrahim Kanalan, ‘Horizontal Effect of Human Rights in the Era of Transnational Constellations: On the}

Accountability of Private Actors for Human Rights Violations’, University of Erlangen-Nuremberg (2014) p. 12.

(14)

of the Guiding Principles has both been widely applauded as an effective tool to get all the different stakeholders on board and has been consistently criticized in that it provides ineffective protection in practice.68_{Yet, they can be viewed as a possible mechanism to steer}

towards countering corporate human rights impunity in which several critics even argue that they go too far in their “binding and legalistic approach” which clearly portrays its ‘limbo position’ between soft and hard law.69_{Current practice reveals that the Guiding Principles have}

succeeded in providing a middle-ground between corporate responsibility as a complete voluntary mechanism and that as an initiative developed within international human rights law.70_{Moreover, the increasing influence of companies on human rights has caused that groups}

and individuals within society are progressively demanding for further evolvement of stricter responsibilities and hence an adequate corporate accountability mechanism.71_{In this regard, a}

brief overview of the UN treaty development will be provided next.

2.5.2 TOWARDS HARD(ER) LAW: “THE ZERO DRAFT”

An example of the demand for a distinct responsibilities system is the “Zero Draft”. In 2014, the Human Rights Council established an Intergovernmental Working Group (IGWG) to elaborate on and analyze the margins of an internationally binding treaty on transnational corporations and other business enterprises with respect to human rights.72_{Legal proponents}

state that the necessity for such a binding treaty is significant within the current climate of influential (internet) corporations and could function as the appropriate judicial solution with the adequate level of authority to the expanding lacunae in the present mechanism.73_However,

the EU and John Ruggie, have expressed their concerns that an attempt to reach a universal outcome through a treaty, would lead to such a highly abstract set of rules that they would become practically futile in use.74_{Nevertheless, this binding treaty “might die a slow death” in}

the upcoming months, the necessity and call for such a mechanism will not per se. 75_Although,

its specific role within the debate will remain uncertain for the moment.

68_{Penelope Simons, ‘International Law’s invisible Hand and the Future of Corporate Accountability for Violations of}

Human Rights’, Journal of. Human Rights and the Environment 3(2012) p. 37.

69_{Simons (n68) p. 8.} 70_{Laidlaw (n57) p. 95.}

71_{HRC 38}th_{Session, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of}

Opinion and Expression, (6 April 2018) (A/HRC/38/35) para .10.

72_{Resolution HRC/res/26/9, ‘Elaboration of an International Legally Binding Instrument on Transnational}

Corporations and Other Business Enterprises with Respect to Human Rights’ 14 July 2014 <https://documents-dds-ny.un.org/doc/UNDOC/GEN/G14/082/52/PDF/G1408252.pdf?OpenElement>.

73_{David Bilchitz, ‘The Necessity for a Business and Human Rights Treaty’, Business and Human Rights Journal}

(2016), p. 203.

74_{Bilchitz (n73) p. 220.}

75_{David P. Fidler, ‘UN Treaty Talks and Human Rights Accountability for Corporate Digital Activities’, Council on} Foreign Relations 23 October 2018 <https://www.cfr.org/blog/cyber-week-review-october-19-2018>.

(15)

3. NORMATIVE FRAMEWORK FREEDOM OF EXPRESSION

AND HATE SPEECH

This chapter focusses more specifically on the normative framework of the right to freedom of expression and hate speech, within the ICCPR and the obligations and responsibilities that come forward out of the relevant provisions. First, the limitation’s mechanism of the right to freedom of expression and the manner its status is interpreted in legal practice will be analyzed. Moreover, the definitional borders and basic components of hate speech will be examined. Lastly, it will be described how this mechanism is to be applied to the unique characteristics of the online domain.

3.1 THE RIGHT TO FREEDOM OF EXPRESSION: ARTICLE 19 ICCPR

The right to freedom of opinion and expression has been implemented in a considerable number of international covenants, illustrating its universal authority.76_{It entails a fundamental human}

right with authoritative status and practice worldwide, also illustrated by its implementation within the Universal Declaration of Human Rights (UDHR) which developed into reflecting norms of customary international law.77_{Moreover, within international human rights law, the}

right to freedom of expression is an essential right on both an individual level, in the development of a person, and as the “foundation stone” of democratic society, from which other rights are dependent, as without freedom of expression the access to and enjoyment of other human rights is futile.78_{Regarding the ICCPR, the HRC has regularly expressed itself about}

the right to freedom of expressions’ interpretation and practice in its GC, especially in GC 34.79

Article 19 ICCPR states two rights: freedom of opinion 19(1) and freedom of expression 19(2):

2.“Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive

and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print,

in the form of art, or through any other media of his choice.” 80

Nevertheless, whereas the right to freedom of opinion constitutes an absolute human right, from which no exception or restriction is permitted, the right to freedom of expression can be subject

76_{Such as in: article 19 of the UDHR, article 19 ICCPR, ICESCR, article 5 ICERD, CEDAW but also in regional}

standards: Article 10 ECHR, article 13 ACHR, article 9 ACHPR and within Regulations of the OSCE. See full list: <https://www.ohchr.org/en/issues/freedomopinion/pages/standards.aspx>.

77_{Dominic McGoldrick in Moeckli (n24) p. 217 and Emily Howie, Protecting the Human Right to Freedom of}

Expression in International Law’, International Journal of Speech-Language Pathology (2018), p. 12.

78_{Howie (n77) p. 13.}

79_{UN HRC, General Comment no. 34, Article 19, Freedoms of Opinion and Expression, 12 September 2011,}

(CCPR/C/GC/34).

(16)

to legal limitations.81_{In order to analyze the compatibility of a limitation to article 19(2), one}

should view article 19(3) ICCPR:

3. “The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and

responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the

protection of national security or of public order (ordre public), or of public health or morals.”82

Here two grounds are provided: (a) respect of the rights or reputation of others and (b) the protection of national security or of public order, or of public health or morals. The wording “as are provided by law” and “necessary” in this provision were interpreted by the HRC to mean that solely limitations that fall within the scope of the two subparagraphs and pass the stringent test of necessity and proportionality can be introduced.83_{It should be noted in this}

context that the HRC gave a wide enjoyment of article 19(2) in that freedom of expression should be the rule and the restriction of this right the exception.84_{The HRC even claims that}

state parties should actively safeguard excessive restrictions of article 19(2).85

Firstly, regarding the criterion provided by law, for a norm to be defined as law it “must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and it must be made accessible to the public.”86_{Moreover, this law must comply}

with the stringent criteria of article 19(3) and it must be in line with the object and purpose of the ICCPR altogether.87_{Secondly, only the legitimate purposes, mentioned in 19(3), can be}

imposed to limit the right to freedom of expression.88_{Lastly, these measures must be conform}

the principles of necessity and proportionality, appropriate to achieve the protective goal by using the least intrusive instrument available.89_{Hence, the normative framework of the right to}

freedom of expression within the ICCPR and its functionality in practice appears to be rather manifest, stating well-defined limitations which have been interpreted and confirmed by the HRC on several occasions.90_{Thus, conform this framework and the state’s obligations laid}

81_{Giorgi Chitidze, ‘Human Rights Online: Redefining the Concept of Freedom of Expression in the Digital Age’,} University of Gothenburg (2015) p. 4.

82_{Article 19 (3) ICCPR (n8) (emphasis added).} 83_{General Comment 34 (n79) para. 22.}

84_{Michael O’Flaherty, ‘Freedom of Expression: Article 19 of the ICCPR and the Human Rights Committee’s General}

Comment No 34’, (2012) 12 (4) Human Rights Law Review, para. 4.

85_{General Comment 34 (n79) para. 23.} 86_{General Comment 34 (n79) para. 25.} 87_{General Comment 34 (n79) para. 26.} 88_{General Comment 34 (n79) para 33.} 89_{General Comment 34 (n79) para 34.}

90_{In General Comment 34 (n79) and previous UN HRC General Comment no. 10, Article 19 (Freedom of Opinion),}

(17)

down in the previous chapter, states should facilitate an environment in which they shield free expression from infringement by third parties and in which states provide mechanisms as the regulation of communication mediums and safeguarding the access to information, all within the scope of the given limitations.91_{Hence, states have the obligation to protect, respect and}

fulfill the right to freedom of expression as a fundamental right under the ICCPR of all its individuals. Consequently, the right to freedom of expression, as one of the most fundamental human rights is – for this reason – also one of the most violated rights among the different human rights.92_{Therefore, as is the case with every human right, a balance should be maintained}

at all times – and in the case of free speech – between the right to freedom of expression and the right of those groups or individuals, who are severely damaged or harmed by expression amounting to hate speech, to be protected against that same free speech. This balance is vital for the proper functioning of the right to freedom of expression. Hence, a normative framework in regard of this phenomenon ‘hate speech’ will be provided next.

3.2 HATE SPEECH PROHIBITION: ARTICLE 20 ICCPR

The ICCPR provides in article 20(2):

2. “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination,

hostility or violence shall be prohibited by law.”93

In comparison to article 19, this article has a more precarious basis. The drafting history of article 20 reveals confusion and ambiguity around the voting procedure.94_{The HRC has}

provided some clarity on its position – also in relation to article 19 – in its GC 34, by stating that “articles 19 and 20 are compatible with and complement each other”.95_{As was already}

stated earlier by several legal scholars:

“Articles 19 and 20 demonstrate a balancing approach to conflicting, interrelated rights by allowing for

the limited restriction of one right in order to more fully effectuate another”.96

91_{Laidlaw (n57) p. 85.} 92_{O’Flaherty (n84) p. 631.}

93_{Article 20 (2) ICCPR (n8) (emphasis added).}

94_{Adopted by 50 in favor, 18 against, and 15 abstentions. Mohamed Saeed M. Eltayeb, ‘The Limitations on Critical}

Thinking on Religious Issues under Article 20 of ICCPR and Its relation to Freedom of Expression’, Religion and

Human Rights 5(2010), p. 125. 95_{General Comment 34 (n79) para. 50.}

96_{Nazila Ghanea, ‘Expression and Hate Speech in the ICCPR: Compatible or Clashing?’, Religion and Human Rights}

5(2010), p. 187 and Scott J. Catlin, ‘Proposal for Regulating Hate Speech in the United States: Balancing Rights under the International Covenant on Civil and Political Rights’, pp. 797 - 798.

(18)

The HRC elaborated on this by stating that limitations conform article 20, must be in accordance with the limitation grounds of article 19(3) as well, thus satisfying the criteria of legality, necessity and legitimacy.97_{Article 20 prescribes a specific stringent mechanism on how states}

should respond to particular forms of expression laid down in that article, namely their prohibition by law which is a more rigid state measure and positions article 20 as a lex specialis to article 19(3).98_{Article 20 requires states to actively implement national legislative}

mechanisms that prohibit advocacy of hatred that constitutes incitement to discrimination, hostility or violence, rather than a mere non-interference obligation.99_{Regarding the HRC’s}

interpretation in its previous GC 11 and most recent GC 34 on the article, the state practice, and the wording of the provision itself (“shall be prohibited by law”) all could be interpreted to demonstrate that article 20 provides for an obligatory limitation provision which leaves no discretionary space for the state.100_{More recently, a gradual development can be observed, in}

which article 20 is invoked by hate speech victims, claiming that states should provide for laws prohibiting hate speech, whereas formerly the scope was solely focused on the relation of article 20 and its inciters, who claimed that their right to freedom of expression was interfered with.101

It is inter alia around this relevant development that this research is evolving.

3.2.1 (LEGAL) DEFINITION OF HATE SPEECH

Within the normative ICCPR framework, a specific legal definition of what exactly comprises ‘hate speech’ remains rather ambiguous. Moreover, in other international (human) rights instruments, no absolute definitions can be found either, or when these are defined, different connotations and emphasizes are formulated, depending on the type of legislation. Moreover, in regional legislation as that of the European Union (EU) and in policy frameworks as the Community Standards of social media entities themselves102_{– even though not legally binding}

– different definitions and nuances are added regarding hate speech. Thus, what can be concluded in this essence is that, there is no universally accepted legal definition of what comprises hate speech, leaving considerable ambiguity in what factors contribute to harmful or inappropriate behavior to eventually amount to the connotation of hate speech.103

97_{Ibid. and General Comment 34 (n79) para. 50.} 98_{General Comment 34 (n79) paras. 51 and 52.}

99_{Jeroen Temperman, ‘The mandatory nature of Article 20 (2) ICCPR’ in Jeroen Temperman, Religious Hatred and} International Law. Cambridge University Press (2015) p. 69.

100_{Gagliardone (n22) p. 20.} 101_{Temperman (n99) p. 76.}

102_{Facebook, Twitter and YouTube all have slightly different description of what comprises hate speech.} 103_{Alkiviadou, (n19) p. 217.}

(19)

Reasons for a lack of this universal definition need to be looked for principally outside the legal scope, exposing the difficulties of a uniform interpretation – and thus a universal legal definition – of what free speech entails in general. Social and historical context are significant factors in this regard.104_{Hence, what one person might consider as highly offensive, might be perfectly}

reasonable to another, making hate speech mainly an “emotive concept” and hampering a clear-cut judicial formulation.105_{These differences are already noticeable within states, between}

different age groups or cultures, let alone the different impacts and interpretations hate speech bears on the international playing field. Hence, the standpoint towards it often appears to be that “hate speech seems to be whatever people choose it to mean” within a particular society.106

Consequently, subtracting a universal legal definition from the different international and domestic legislations has proven to be challenging. Moreover, given the dynamic and evolving nature of the concept of hate speech, formulating unambiguous legal criteria might be unsustainable. Therefore, a certain degree of discretion should be maintained to see whether it would fall in the scope of the given definition. Bearing in mind the ‘impossibility’ of a universal concept of hate speech, it is – for the purposes of this research, and within this area of research in general – useful to deduct a workable description, from which the relevant obligations can be deducted and – thereafter – the accountability search can continue. In this regard, one of the scarce initiatives that did provide workable definitions can be found within the EU regional level in the Recommendation of the Council of Europe Committee of Ministers (CoM) on hate speech, in which hate speech is:

“to be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expression by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities,

migrants and people of immigrant origin.”107

Moreover, the Committee on the Elimination of Racial Discrimination (CERD) elaborated in its General Recommendation (GR) 35108_{on a much broader definition of hate speech as:}

“a form of other-directed speech which rejects the core human rights principles of human dignity and

equality and seeks to degrade the standing of individuals and groups in the estimation of society.”109

104_{Shaw (n17) p. 287.}

105_{ARTICLE 19 ‘Hate Speech’ Explained: A Toolkit (2015) p. 9.} 106_{Alkiviadou (n19) p. 219.}

107_{Council of Europe Committee of Ministers Recommendation on Hate Speech (97) 20 (30 October 1997) p. 77.} 108_{UN CERD, General Recommendation 35: Combatting Racist Hate Speech, 26 September 2013, CERD/C/GC/35.} 109_{General Recommendation 35 (n108) para. 10.}

(20)

Additionally, the ECtHR has referred to hate speech in its case-law – even though it has not expressly put the given description forward as a legal definition in its relevant documents – as:

“all forms of expression which spread, incite, promote or justify hatred based on intolerance including

religious intolerance.”110

Comparing this formulation to the one formulated by the CoM, one notes the similarities of the two definitions and the interrelation of the Court with the CoM as the executor of the ECtHR’s judgements. It is from the aforementioned different frameworks, that several, more specific, characteristics of the phenomenon hate speech will be deducted and analyzed.

3.2.2 BASIC COMPONENTS OF HATE SPEECH

Even though formulating an unambiguous universal definition has proven to be complex, there are several basic components that can be derived from general practice and previous formulations by international institutions that could serve as a basic outset. The exact scope and interpretation of these criteria are still highly disputed.111_{Nevertheless, in order to clarify the}

concept of hate speech – and thus provide a general basis – several of these components of hate speech will be briefly outlined. The first criterion is intent. When analyzing article 20(2) ICCPR, this element could be read in the advocacy formulation, meaning to spread speech with the intent of advocating and arousing hatred.112_{Hence, the element of inciting hate is inherent}

to this first component, as can be deducted from the normative reference to incitement in article 20(2) as well. The elements of intent and incitement to hatred have been dealt with in the case-law of the CERD and ECtHR in several instances where part of the legal assessment was whether the hate instigator had the intent to incite (racial) hate speech.113_{Nonetheless, the exact}

meaning of incitement remains ambiguous in international law114_{, leading to the elements of a}

causal link between the (hateful) speech and the possible harmful effects and the context in which the speech is done, in analyzing whether incitement exists in the given case.115_However,

these conditions have a rather uncertain status within the international normative framework. It should be mentioned in this regard that inciting an action should not be defined as being similar to causing this action, as is a highly important distinction within the social media sphere as well.116_{Yet, the UN treaty bodies or regional EU courts will often search for this causal link in}

110_{Erbakan v. Turkey [2006] ECHR 59405/00 para. 56.} 111_{Hate Speech Toolkit (n105) pp. 10 and 11.}

112_{Toby Mendel, ‘Hate Speech Rules Under International Law’ Centre for Law and Democracy. (2010) p. 5.} 113_Ibid.

114_{UN High Commissioner for Human Rights A/HRC/9/25, 5 September 2008, para. 24.} 115_{Mendel (n112) p. 6.}

(21)

relation to the harmful effects. In these occasions, not only specific textual references that are indicative for this causal link are important, more so does the context provide an essential additional test.117_{In sum, it could be stated that each case should be analyzed independently in}

its own context, testing on intent, incitement to hatred, and the possibility that the given speech has caused real harm.118_{How this is to be applied to the social media context will be analyzed}

next.

3.3 THE SPECIAL POSITION OF FREEDOM OF EXPRESSION AND HATE SPEECH ONLINE

The previous analysis predominantly focused on the normative framework in its initial, offline sphere. Nevertheless, today, free speech is almost inevitably linked to the online domain which is also where the current debate exists. The UN treaty bodies and the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye (hereafter: the Special Rapporteur), and regional organizations – most recently – have all confirmed that the legal stance in this regard is that: “offline rights apply equally online”.119

Moreover, article 19(2) provides for other media, for the free expression of speech which is to be interpreted to include the internet as well. In that regard, the HRC has acknowledged the emergence of new online media intermediaries and elaborated on the ‘online application’ of the ICCPR in its GC 34, referring explicitly to internet service providers in its legal analysis.120

Furthermore, in a Joint Declaration on Freedom of Expression and the Internet (Joint Declaration)121_{the previous Special Rapporteur stated that the right to freedom of expression}

applies equally to the internet as it does to other media. Nevertheless, the HRC also recognizes that – even though the same normative framework applies to both cases – these various media entities cause for several practical differences as well, compared to their offline equals.122_Yet,

the HRC does not specifically address the details of these differences, one issue that has been signaled within the legal literature regarding the application of human rights law treaties online, is the issue of jurisdiction. Hence, it is this element that will be discussed in the following section.

117_{Jóna Aõalheiõur Pálmadóttir and Iuliana Kalenikova, ‘Hate Speech: an Overview and Recommendations for}

Combatting, Icelandic Human Rights Centre (2018) p. 7.

118_Ibid.

119_{Special Rapporteur Report (n71) para. 1.} 120_{General Comment 34 (n79) paras. 15, 39 and 43.}

121_{Joint Declaration on Freedom of Expression and the Internet, adopted by the UN Special Rapporteur of Freedom of}

Opinion and Expression, the OAS, the OSCE and the African Commission on Human and People’s Rights (2011).

(22)

3.3.1 STATE OBLIGATIONS AND THE ISSUE OF JURISDICTION

Article 2(1) ICCPR entails the obligation for state parties to respect and ensure the covenant’s rights to all individuals “within its territory and subject to its jurisdiction”.123_{The application}

of this framework to the online domain appears to remain rather unsatisfying, given the extraterritoriality of the internet beyond state boundaries and sovereignty. Consequently, an important question is whether the ICCPR obligations can apply beyond the states’ own borders to that of another state, leading to an extension of obligations transboundary. This has revealed to be a complex analogy which has left the academic literature in divide. 124

Principally, the state’s obligations within human rights law are for the state to apply solely within its own territory.125_{Nevertheless, there are certain circumstances in which the}

International Court of Justice (ICJ) and the HRC have interpreted the ICCPR obligations to apply extraterritorially. The HRC, in its GC 31, has explained the scope of article 2(1) to apply to:

“anyone within the power or effective control of that State Party, even if not situated within the territory

of that State Party”.126

Moreover, the HRC in the case of Lopez Burgos v Uruguay127_{ruled that Uruguay was}

responsible for the abduction of a man by its agents, though occurring on the territory of Argentina.128_{Furthermore, the ICJ in the Wall opinion}129_{, stated that Israel had obligations}

according to the ICCPR towards the people within the occupied territories.130_{Hence, a factor}

appears to be that if a state has effective control over a territory of another state that would be similar as or comparable to its level of control in its own jurisdiction, then extraterritorial human rights obligations would indeed be appropriate.131_{In this regard, more specifically regarding}

corporations abroad, the HRC ‘encouraged’ Germany to abide by (positive) obligations to avoid abuses of its private entities while operating in other states, and – more recently – advised Canada to carry out similar obligations in stronger, more demanding language.132_{Thus, the}

extraterritorial application of the state’s obligations under the ICCPR regarding corporate

123_{Article 2(1) ICCPR (n8).}

124_{Gabor Rona & Lauren Aarons, ‘State Responsibility to Respect, Protect and Fulfill Human Rights Obligations in}

Cyberspace’, Journal of National Security Law & Policy (2016) p. 507.

125_{Hugh King, ‘The Extraterritorial Human Rights Obligations of States’, Human Rights Law Review, 9(2009), p 522.} 126_{General Comment 31 (n35) para. 10.}

127_{Delia Saldias de Lopez v. Uruguay, CCPR/C/13/D/52/1979, 29 July 1981.} 128_{Ibid and Joseph and Dipnall (n29) p. 125.}

129_{ICJ (Wall Opinion) 9 July 2004.}

130_{Ibid and Claire Methven O’Brien, ‘The Home State Duty to Regulate the Human Rights Impacts of TNCs Abroad:}

A Rebuttal’, Business and Human Rights Journal (3)2018 p. 58.

131_{Marko Milanovic, ‘Foreign Surveillance and Human Rights, Part 3: Models of Extraterritorial Application, 27}

November 2013 <https://www.ejiltalk.org/foreign-surveillance-and-human-rights-part-3-models-of-extraterritorial-application/>.

132_{Joseph and Dipnall (n29) p. 126 and Concluding observations on Germany CCPR/C/DEU/CO/6 (12 November}

(23)

entities has been in development. Nevertheless, this application has been practically difficult to apply within the social media context, due to the lack of direct and effective control that states have over the different transnational online communications taking place on these platforms. This control remains foremost with tech-companies, predominantly in charge over certain information being posted or not.133_{Consequently, since the standing model focuses on the level}

of control over a certain group or territory, it has been argued that it is unsuitable and outdated to be applied to the new dimensions of cyberspace.134

Yet, the element of cyberspace is perhaps unnecessarily complicating the debate, since the right to freedom of expression online or offline remains to be built on the similar human rights framework. Moreover, the effects of online hate speech are not only equally felt offline but are perhaps even more damaging than its offline component. Thus, virtual methods are equally real, for which there would appear to be no clear reason to treat the online system completely different.135_{Similarly, previous Special Rapporteur Frank La Rue emphasized this and stated}

that “the framework of international human rights law remains relevant today and equally applicable to new communication technologies such as the internet” which emphasizes the wish to equate the online human rights with the current normative system.136

Accordingly, the normative system of free expression and hate speech provides for far-reaching state obligations, offline and online. Nevertheless, the status quo of international human rights law has created an accountability gap, where it is mainly states that can be held responsible but fails to acknowledge that some conduct is practically out of the state’s reach. However: “There is no fundamental reason why the emphasis should be on the state only. It is just the way things have developed historically.”137_{The next chapter will touch upon the difficulties around the}

responsibilities of private entities and analyze the boundaries of corporate accountability regarding online hate speech.

133_{Laidlaw (n57) p. 83.}

134_{Eliza Watt, ‘The Role of IHRL in the Protection of Online Privacy in the Age of Surveillance’ Tallinn: NATO CCD}

COE Publications (2017) p.10.

135_Ibid.

136_{HRC 17}th_{Session, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of}

Opinion and Expression, Frank La Rue. (A/HRC/17/27) 16 May 2011, para. 21.

(24)

4. HUMAN RIGHTS RESPONSIBILITIES OF SOCIAL MEDIA

ENTITIES

Within the year 2018 alone already, a shift can be noted in the responsibility expectations towards social media entities. Their increasing influence has caused that they are not solely acting as internet service but are also expected to fulfill a role as online gatekeepers, serving a protective role against potential human rights abuses.138_{Hence, the term ‘intermediary liability’}

has grown into one of the most challenging internet issues of modern time.139_{This growing}

influence of main social media entities has caused that platforms as Facebook and Twitter developed into de facto public world empires which in the academic literature has even led to the development of a new connotation of these platforms as nation-states ‘Facebookistan’ and ‘Twitterland’.140_{Yet, since a significant amount of free speech revolves in the online domain,}

in the society of today free speech is moving away from the government sphere to that of business entities.141_{. This raises the question: what are the responsibilities of these entities}

regarding the right to freedom of expression of their users, while at the same time controlling hate speech on their platforms? This will be analyzed in light of the laws and norms in place within international human rights law and by examining relevant case-law from international and regional human rights bodies, and by briefly illustrating relevant evolving national legislation. Moreover, regarding the controversial character of the debate, an analysis will be made regarding the feasibility of such an accountability regime in analyzing the views of proponents and opponents. Lastly, the (back-up) role that corporate social responsibility can have in this context will be examined.

4.1 THE SOCIAL MEDIA PLATFORM AS AN INTERMEDIARY

An important factor in the corporate accountability context of social media entities is the fact that these platforms are not the direct actors in spreading the hate speech online. The crux is that they ‘merely’ facilitate the platform where this speech is posted by its users. Thus, what kind of responsibilities can be defined regarding these social media platforms and to what extent can these entities be held accountable for providing a platform on which hate speech occurs and that, more importantly, by leaving hate speech (too long) up online, can evolve in actual

138_{Laidlaw, (n57) p. xi.}

139_{Giancarlo Frosio ‘Why keep a dog and bark yourself? From Intermediary Liability to Responsibility’, Centre for} International Intellectual Property Studies Research Paper 11(2017) p. 3.

140_{Jørgenson (n27) p. 245.}

141_{Kitsuron Sangsuvan, ‘Balancing Freedom of Speech and the Internet under International Law’, North Carolina} Journal of International Law and Commercial Regulation 39(2013) p. 738.