A/HRC/38/35
67.
States and intergovernmental organizations should refrain from establishing
laws or arrangements that would require the “proactive” monitoring or filtering of
content, which is both inconsistent with the right to privacy and likely to amount to
pre-publication censorship.
68.
States should refrain from adopting models of regulation where government
agencies, rather than judicial authorities, become the arbiters of lawful expression.
They should avoid delegating responsibility to companies as adjudicators of content,
which empowers corporate judgment over human rights values to the detriment of
users.
69.
States should publish detailed transparency reports on all content-related
requests issued to intermediaries and involve genuine public input in all regulatory
considerations.
Recommendations for ICT companies
70.
Companies should recognize that the authoritative global standard for ensuring
freedom of expression on their platforms is human rights law, not the varying laws of
States or their own private interests, and they should re-evaluate their content
standards accordingly. Human rights law gives companies the tools to articulate and
develop policies and processes that respect democratic norms and counter
authoritarian demands. This approach begins with rules rooted in rights, continues
with rigorous human rights impact assessments for product and policy development,
and moves through operations with ongoing assessment, reassessment and meaningful
public and civil society consultation. The Guiding Principles on Business and Human
Rights, along with industry-specific guidelines developed by civil society,
intergovernmental bodies, the Global Network Initiative and others, provide baseline
approaches that all Internet companies should adopt.
71.
The companies must embark on radically different approaches to transparency
at all stages of their operations, from rule-making to implementation and development
of “case law” framing the interpretation of private rules. Transparency requires
greater engagement with digital rights organizations and other relevant sectors of civil
society and avoiding secretive arrangements with States on content standards and
implementation.
72.
Given their impact on the public sphere, companies must open themselves up to
public accountability. Effective and rights-respecting press councils worldwide
provide a model for imposing minimum levels of consistency, transparency and
accountability to commercial content moderation. Third-party non-governmental
approaches, if rooted in human rights standards, could provide mechanisms for
appeal and remedy without imposing prohibitively high costs that deter smaller
entities or new market entrants. All segments of the ICT sector that moderate content
or act as gatekeepers should make the development of industry-wide accountability
mechanisms (such as a social media council) a top priority.
20
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