The sheer size of the internet; with its anonymity and connectivity, makes it a hot bed for extremist views, harassment and hate speech. The complexity of regulating content extends beyond the capacity of traditional law enforcement. Whilst an imperative exists to monitor online content, who exactly should be responsible for governance of illegal hate speech online? This essay provides a brief overview on the debate of whether Australian social platforms should follow in the footsteps of the EU Code of Conduct on Countering Illegal Hate Speech Online and the German Network Enforcement Laws (NetzDG), concluding that outsourcing regulation to these platforms is wrought with danger, due to technological limitations, potential bias, unfettered power and political, economic and social agendas of social platforms, which compromises transparency and freedom of expression.
A Brief History of Online Hate Speech
No universal definition for Hate Speech exists. Many diverse definitions prevail, yet, a common recommendation by the Council of Europe in 1997 embraced by many nations, suggests hate speech includes “all forms of expression which spread, incite, promote or justify racial..or religious hatred or intolerance”. In the digital age in which we live, this has been extended to include fake news; where false information is spread with intent to harm. The Wharton School of Business’ “How Can Social Media Firms Tackle Hate Speech?” podcast provides an insight into the role of social platforms as moderators.
What is the EU Code of Conduct?
Following the Bataclan concert hall terrorist attack that occurred in Paris in 2015, The EU Code of Conduct was agreed upon with Facebook, Microsoft, Twitter and YouTube to counter the spread of illegal hate speech online, with Instagram, Google+, Snapchat and Dailymotion joining in 2018. Monitoring of hate speech has resulted in 72% of hate speech removed within 24 hours.
Germany as a Regulatory Model
The NetzDG Law was introduced on 1st January, 2018 as part of an extension of its Voksverhetzung – “incitement to hatred” criminal code, in response to increased far-right propaganda surrounding Merkel’s decision to open German borders to immigration. This law requires all social platforms to remove obvious instances of hate speech and abusive content within 24 hours, or face potential fines of up to 50 million euro.
What is Australia currently doing about online hate speech?
In 2019, a new Criminal Code Amendment Sharing of Abhorrent Violent Material Bill 2019 was legislated in response to the mass shooting in New Zealand by an Australian white nationalist, who live streamed the massacre and posted a hate-filled manifesto video to online 8chan. New legislation holding social media platforms accountable for abhorrent violent posts such as videos which show murders, rapes, kidnappings or terrorist acts was implemented, to ensure, according to Australian’s Prime Minister Scott Morrisson, that “these platforms should not be weaponised”. Penalties for failure to remove expeditiously, includes fines of up to 10% of companies annual profits and up to 3 years imprisonment for employees. Limitations to these new social media laws is that under the Racial Discrimination Act 1975, it applies only to race hate speech and excludes religious based hate speech.
The YES argument:
Online hate speech is too dangerous to ignore.
Online hate speech is more detrimental than offline hate speech, as the Internet’s global reach has enabled greater exposure to a larger audience. Social platforms, due to their extensive popularity, pose a particular risk (Oboler 2014). Incitement to terrorism, along with harassment from online trolls and propaganda from political trolls, means an imperative exists to protect Australian social media users from the direct harm of speech that incites violence.
Social Platforms are responsible for monitoring illegal content
Social platforms control the bulk of the world’s information flows and have the power to shape opinions. They therefore have a corporate responsibility and obligation to monitor and restrict dangerous, racist and illegal hate speech. An evaluation of the EU Code of conduct initiative, revealed that platforms have doubled their notifications, increased bot identification and improved algorithms; an initiative that could have similar results if implemented in Australia.
The NO argument:
Social Media Platform Bias & Agendas
Outsourcing regulation and moderation to social media platforms runs the risk of allowing social platforms to decide which online speech to control, based upon their own political, economic or social agendas. As articulated by Tusikov and Haggart (2019b), platforms that are pressured into a rapid response, without regard or accountability for social problems, may interpret rules themselves and give unprecedented control to public companies, with limited transparency (Cobbe 2019). This therefore allows for potential exploitation, self-interest and societal biases, exposing the subjective nature of censorship, particularly by profit-making organisations who may seek to sway public opinion for their own political or economic gain.
Censorship gives undue Power to Social Platforms
Social Platforms already wield a great deal of power in society. By placing the right to censor in the hands of these corporations, we give them wider reaching power of control over our lives. As acknowledged by Cowan (2019), “expecting Facebook to stop the spread of fake news by fact checking a user’s news feed, we give Facebook the power to subjectively determine truth. By asking Youtube to pre-vet content, we give them the power to determine what thoughts are and aren’t acceptable”. Censorship should not be controlled by Social Platforms that already hold immense economic and political power and can profit by deciding what content is made available to the public.
Freedom of Expression
Suppression of online content restricts our individual rights to freedom of expression, and whilst the Australian Constitution does not have the same strong stance as the USA on freedom of speech (which is contained within its First Amendment), Australia is a Democratic nation and has implied rights under the International Covenant on Civil and Political Rights 1966. The recent Violent Material bill imposed on social media platforms in Australia has angered proponents of free speech and Australian media companies. Advocates for free speech suggest that counter-speech rather than censorship is the most effective means of tackling racist and radicalised rhetoric.
Limitations of Technology
Social Platforms are largely ineffective in regulating against hate speech, as they rely upon algorithms to detect and filter online hate speech words, such as racist slurs or incitements to terrorism. Automation and AI tools have a high error rate, and increasingly, racist trolls are bypassing these systems by using encryption and their own invented codes that avoid detection from platforms automatic filters, rendering them ineffective.
Outsourcing regulation of hate speech to social platforms in Australia may seem like a credible option, however an evaluation of the EU Code of Conduct and Germany’s NetzDG laws appear to be backfiring, with the outsourcing of “free speech to commercial enterprises resulting in many platforms hitting delete by default to avoid fines” (Roxborough 2018). Australia’s new Violent Material bill has received criticism for its “knee jerk” response and difficulty sentencing the offenders, whilst enforcing actions against companies such as Facebook, who are not based in Australia, may prove difficult. Additionally, allowing social platforms to determine what speech constitutes a violation of hate speech, lacks transparency and offers no judicial scrutiny. With no ‘nuanced understanding of context, culture and law (Human Rights Watch 2019), social platforms may seek to place self-interest ahead of social good, and if faced with short periods to review content, may elect to risk free expression rather than risk hefty fines.
“Many platforms hit delete by default to avoid fines” – Roxborough 2018
Whilst it is acknowledged that gains to reduce online hate speech have resulted from the EU and German models and it is desirable to reduce illegal hate speech, propaganda and violence online, I oppose the introduction of similar laws in Australia, due to the significant risks that are posed by placing regulation in the hands of social platforms. The introduction of such laws would place an enormous degree of power and control over censorship of free speech into the hands of ‘for profit’ companies that have their own biases and agendas. This would be compounded by limited transparency and no judicial oversight. The suppression of speech is open to an abuse of power as social platforms decide what constitutes hate speech, the potential for inconsistent intervention and the limitations of algorithms, which poses significant risks to an open internet. Australia should instead seek to find a balance between Germany’s strict laws and the USA’s freedom of speech that does not consolidate or compound the immense power already held by our media companies.
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