A/HRC/38/35
hold States accountable to the same standards. Furthermore, when companies align their
terms of service more closely with human rights law, States will find it harder to exploit
them to censor content.
43.
Human rights principles also enable companies to create an inclusive environment
that accommodates the varied needs and interests of their users while establishing
predictable and consistent baseline standards of behaviour. Amidst growing debate about
whether companies exercise a combination of intermediary and editorial functions, human
rights law expresses a promise to users that they can rely on fundamental norms to protect
their expression over and above what national law might curtail. 124 Yet human rights law is
not so inflexible or dogmatic that it requires companies to permit expression that would
undermine the rights of others or the ability of States to protect legitimate national security
or public order interests. Across a range of ills that may have more pronounced impact in
digital space than they might offline — such as misogynist or homophobic harassment
designed to silence women and sexual minorities, or incitement to violence of all sorts —
human rights law would not deprive companies of tools. To the contrary, it would offer a
globally recognized framework for designing those tools and a common vocabulary for
explaining their nature, purpose and application to users and States.
A.
Substantive standards for content moderation
44.
The digital age enables rapid dissemination and enormous reach, but it also lacks
textures of human context. Per the Guiding Principles, companies may take into account the
size, structure and distinctive functions of the platforms they provide in assessing the
necessity and proportionality of content restrictions.
45.
Human rights by default. Terms of service should move away from a discretionary
approach rooted in generic and self-serving “community” needs. Companies should instead
adopt high-level policy commitments to maintain platforms for users to develop opinions,
express themselves freely and access information of all kinds in a manner consistent with
human rights law.125 These commitments should govern their approach to content
moderation and to complex problems such as computational propaganda126 and the
collection and handling of user data. Companies should incorporate directly into their terms
of service and “community standards” relevant principles of human rights law that ensure
content-related actions will be guided by the same standards of legality, necessity and
legitimacy that bind State regulation of expression.127
46.
“Legality”. Company rules routinely lack the clarity and specificity that would
enable users to predict with reasonable certainty what content places them on the wrong
side of the line. This is particularly evident in the context of “extremism” and hate speech,
areas of restriction easily susceptible to excessive removals in the absence of rigorous
human evaluation of context. Further complicating public understanding of context-specific
rules is the emerging general exception for “newsworthiness”.128 While the recognition of
public interest is welcome, companies should also explain what factors are assessed in
determining the public interest and what factors other than public interest inform
calculations of newsworthiness. Companies should supplement their efforts to explain their
rules in more detail with aggregate data illustrating trends in rule enforcement, and
examples of actual cases or extensive, detailed hypotheticals that illustrate the nuances of
interpretation and application of specific rules.
47.
Necessity and proportionality. Companies should not only describe contentious and
context-specific rules in more detail. They should also disclose data and examples that
124
125
126
127
128
Global Partners Digital submission, p. 3; Guiding Principles, principle 11.
Guiding Principles, principle 16.
See Samuel Wooley and Philip Howard, Computational Propaganda Worldwide: Executive Summary
(Computational Propaganda Research Project working paper No. 2017.11 (Oxford, 2017).
Global Partners Digital submission, pp. 10–13.
See Joel Kaplan, “Input from community and partners on our community standards”, Facebook
Newsroom, 21 October 2016; Twitter rules and policies.
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