Regulating Freedom of Speech on Social Media: Comparing the EU and the U.S. Approach

Research project

Marie-Andrée Weiss

While freedom of speech is the general rule in the U.S. and in the European Union (I), there are nevertheless exceptions to this freedom on both sides of the Atlantic (II). Some of these national exceptions aim at preventing hate speech, defamation, or threats, while others aim at preventing speech which is considered in other countries as the mere expression of an opinion, albeit unsavory, but nevertheless legal. Social media sites allow the rapid spread of all speech, whether protected or not, and such messages spread around the world, and sometimes stir people into action. Social media played an important role in the Arab Spring, the London riots, and the Occupy Wall Street movements. But while the web links us all, each country nevertheless retains its own legal framework, and may or may not view a particular speech, such a blasphemy or lèse majesté, as legal.

What is the purpose of these national exceptions to free speech (III)? Letting negative speech to be published has both positive and negative consequences. However, deciding whether a particular speech is worthy of protection, or not, is a slippery slope. Indeed, not every value is universally recognized, with the possible exceptions of safety and privacy. However, even then the laws balancing these two values with freedom of speech differ greatly in the U.S. and in Europe. Striking a balance between undeterred free speech and censorship to protect values considered worthy of protection is indeed a difficult exercise. Censorship of social media speech may not outweigh the benefit of forbidding a particular speech, but allowing complete free speech on social media may also have negative impacts, such as fostering cyber bullying or hate speech.

Speech is not black or white, bad speech on one side and good speech on the other side. Who has the right to decide which speech must be suppressed on social media sites (IV)? Some states have chosen the radical way of blocking web access entirely as a way to censor speech. Other states have pressured social media sites to monitor and block content deemed unsavory. Users have sometimes taken matters into their own hands, and Twitter has been pressured to give its users the power to block content. In Europe, Article 17 of a new Data Protection Regulation proposes to give users the right to be forgotten, that is, the power to have their personal data erased from the web. The European Court of Justice already ruled in May 2014 that search engines must provide a way for search results to be deleted. Knowing that one’s data may stay online forever and ever gives one pause. More and more people are thinking twice before hitting the publish button, sometimes with the guidance of corporate social media policies or ethics opinions. The rights and the plights of the person who is the topic of the speech must be taken into account. Is the person who is denied the right to be forgotten a victim, as is someone who has been slandered or threatened online?

What are the responsibilities and liabilities of social media sites (V)? The different laws regulating social media speech need to be respected, and corporations must develop programs and corporate policies to be compliant with them. Internet intermediaries may be liable for third party content in the U.S. and in Europe. But even if a corporation complies with the laws of its own country, how should it respond when receiving an international warrant in a free speech case? And how should these Internet intermediaries respond to a request to take down or to censor content? Regardless of their ultimate decisions, how they act upon these issues is watched and commented upon all around the world, on social media.

Abstract – PDF Version