A/HRC/38/35 I. Introduction 1. Early in the digital age, John Perry Barlow declared that the Internet would usher in “a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity”.1 Although the Internet remains history’s greatest tool for global access to information, such online evangelism is hard to find today. The public sees hate, abuse and disinformation in the content users generate. Governments see terrorist recruitment or discomfiting dissent and opposition. Civil society organizations see the outsourcing of public functions, like protection of freedom of expression, to unaccountable private actors. Despite taking steps to illuminate their rules and government interactions, the companies remain enigmatic regulators, establishing a kind of “platform law” in which clarity, consistency, accountability and remedy are elusive. The United Nations, regional organizations and treaty bodies have affirmed that offline rights apply equally online, but it is not always clear that the companies protect the rights of their users or that States give companies legal incentives to do so. 2. In the present report the Special Rapporteur proposes a framework for the moderation of user-generated online content that puts human rights at the very centre.2 He seeks to answer basic questions: What responsibilities do companies have to ensure that their platforms do not interfere with rights guaranteed under international law? What standards should they apply to content moderation? Should States regulate commercial content moderation and, if so, how? The law expects transparency and accountability from States to mitigate threats to freedom of expression. Should we expect the same of private actors? What do the processes of protection and remedy look like in the digital age? 3. Previous reports have addressed some of these questions. 3 The present report focuses on the regulation of user-generated content, principally by States and social media companies but in a way that is applicable to all relevant actors in the information and communications technology (ICT) sector. The Special Rapporteur outlines the applicable human rights legal framework and describes company and State approaches to content regulation. He proposes standards and processes that companies should adopt to regulate content in accordance with human rights law. 4. Research into the companies’ terms of service, transparency reporting and secondary sources provided the initial basis for the report. Calls for comments generated 21 submissions from States and 29 from non-State actors (including 1 company submission). The Special Rapporteur visited several companies in Silicon Valley and held conversations with others in an effort to understand their approaches to content moderation.4 He benefited from civil society consultations held in Bangkok and Geneva in 2017 and 2018 and online discussions with experts in Latin America, the Middle East and North Africa and subSaharan Africa in 2018.5 II. Legal framework 5. The activities of companies in the ICT sector implicate rights to privacy, religious freedom and belief, opinion and expression, assembly and association, and public participation, among others. The present report focuses on freedom of expression while 1 2 3 4 5 John Perry Barlow, A Declaration of the Independence of Cyberspace, 8 February 1996. “Moderation” describes the process by which Internet companies determine whether user-generated content meets the standards articulated in their terms of service and other rules. A/HRC/35/22 and A/HRC/32/38. The Special Rapporteur visited the headquarters of Facebook, Github, Google, Reddit and Twitter and held conversations with representatives of Yahoo/Oath, Line and Microsoft. He also visited the nonprofit Wikimedia Foundation. He hopes to visit companies in Beijing, Moscow, Seoul and Tokyo in work related to the present report. The Special Rapporteur wishes to thank his legal adviser, Amos Toh, and students at the International Justice Clinic at the University of California, Irvine, School of Law. 3