A/HRC/38/35 should be disfavoured, given their privacy and security implications for vulnerable individuals.141 61. Mounting concerns about the verifiability, relevance and usefulness of information online raise complex questions about how companies should respect the right to access information. At a minimum, companies should disclose details concerning their approaches to curation. If companies are ranking content on social media feeds based on interactions between users, they should explain the data collected about such interactions and how this informs the ranking criteria. Companies should provide all users with accessible and meaningful opportunities to opt out of platform-driven curation.142 Decisional transparency 62. Notwithstanding advances in aggregate transparency of government removal requests, terms of service actions are largely unreported. Companies do not publish data on the volume and type of private requests they receive under these terms, let alone rates of compliance. Companies should develop transparency initiatives that explain the impact of automation, human moderation and user or trusted flagging on terms of service actions. While a few companies are beginning to provide some information about these actions, the industry should be moving to provide more detail about specific and representative cases and significant developments in the interpretation and enforcement of their policies. 63. The companies are implementing “platform law”, taking actions on content issues without significant disclosure about those actions. Ideally, companies should develop a kind of case law that would enable users, civil society and States to understand how the companies interpret and implement their standards. While such a “case law” system would not involve the kind of reporting the public expects from courts and administrative bodies, a detailed repository of cases and examples would clarify the rules much as case reporting does.143 A social media council empowered to evaluate complaints across the ICT sector could be a credible and independent mechanism to develop such transparency. V. Recommendations 64. Opaque forces are shaping the ability of individuals worldwide to exercise their freedom of expression. This moment calls for radical transparency, meaningful accountability and a commitment to remedy in order to protect the ability of individuals to use online platforms as forums for free expression, access to information and engagement in public life. The present report has identified a range of steps, include the following. Recommendations for States 65. States should repeal any law that criminalizes or unduly restricts expression, online or offline. 66. Smart regulation, not heavy-handed viewpoint-based regulation, should be the norm, focused on ensuring company transparency and remediation to enable the public to make choices about how and whether to engage in online forums. States should only seek to restrict content pursuant to an order by an independent and impartial judicial authority, and in accordance with due process and standards of legality, necessity and legitimacy. States should refrain from imposing disproportionate sanctions, whether heavy fines or imprisonment, on Internet intermediaries, given their significant chilling effect on freedom of expression. 141 142 143 See para. 30 above. Facebook, for example, permits users to view stories in their News Feed in reverse chronological order, but warns that it will “eventually” return to its default curation settings. Facebook Help Centre, “What’s the difference between top stories and most recent stories on News Feed?”. See, for example, Madeleine Varner and others, “What does Facebook consider hate speech?”, ProPublica, 28 December 2017. 19