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Social media use in last 15 years has increased in both volume and the types of content shared, leading to a norm of many users saying and sharing what they want, when they want. Misinformation, disinformation and fake news have become part of the content we view daily and largely accepted as one of the downsides of online communication.

In recent years there has been a greater understanding of the need to treat online interactions like those in the real world, in terms of the responsibility for, and consequences of, what is said. There has also been debate around social media sites hosting distressing or inappropriate videos and, under pressure to remove harmful content, social networks have made small and slow changes to their policies in the past few years. Outside of these limited exceptions, restrictions on the content shared by users have been avoided, and state interference has been limited to tightening existing protections against hate speech and criminal behaviour to encompass acts committed in a virtual world.

It is only in response to the tensions surrounding the US presidential election and in relation to the coronavirus pandemic that a clear effort to flag, and even censor, speech considered to be misleading and dangerous, has emerged. Where previously it was a matter for users to spot potential “fake news”, sites are now highlighting posts which could contain misleading information. With this, comes inevitable concerns about the impact on freedom of expression.

The legal concept of free speech is far stronger in the US, where courts are reluctant to restrict application of the First Amendment except in the most serious situations. In the UK, the right is subject to more exceptions but still given significant protection, with the Human Rights Act 1998 transposing the ECHR protections to domestic law. However, it is important to note that the right is generally only protected from interference by the state. There is no requirement for private companies like Facebook or Twitter to promote free speech. The liberal approach to freedom of expression is a feature of the culture surrounding these platforms, but it is not something prescribed by law, here or in the US.

Focussing on the framework in the UK, certain human rights obligations carry a significant positive element. For example, a Government bound by the ECHR must not only avoid causing the unlawful death of citizens, but also has a positive duty to protect the right to life, extending to certain situations involving private individuals. Given its importance to democracy, the right to freedom of expression also carries a positive obligation, which could extend to the interaction between an individual and a private company in certain situations. However, the case law does not indicate that it would extend to a Government, such as the UK or Scottish Government, requiring the privately owned social media sites available to citizens to allow a completely unrestricted exchange of ideas and opinions.

There is a further issue with the type of speech subject to the measures taken by social media sites. When President Trump repeatedly tweeted that the US election result was fraudulent and encouraged this to be challenged, the real-world implications were significant and, taken by some as a call to riot, leading to violence and several deaths at the Capitol. Speech which incites violence is not protected under the rights granted by UK law, or even by the First Amendment in the US. Similarly, though more so in the UK than in the US, the law is unlikely to protect the sharing of ideas or misinformation about Covid, which could pose a threat to the health of the country.

Censorship of any degree has negative connotations, particularly on issues of democracy or important issues of personal freedom. However, the steps being taken by sites such as Twitter and Facebook are unlikely to be problematic in terms of the legal protection granted to freedom of expression. Any objections on the grounds of freedom of speech are moral rather than legal.

Even the most avid defenders of the principle of free speech are likely to understand the public protection drive in Trump’s removal from Twitter, or of posts by Covid deniers or anti-vaxxers being flagged as potentially incorrect. The worry lies more with where the line is drawn.

The free exchange of ideas is essential to democracy and awarded legal protection because of this. Discussion of elections would ordinarily be considered one of the aspects of speech most deserving of protection. Likewise, while there is a need for the public to have the tools identify false information about Covid, care needs to be taken that discussions around the effectiveness of Government measures or informed consent to a vaccine are not suppressed. Discussion surrounding the democratic process, personal autonomy and private life bring other rights into play and strengthen the protection given to freedom of expression.

As it stands, the instances and type of censorship seen on social media platforms are unlikely to interfere with any legally granted right to freedom of expression, if viewed through the lens of UK law. The circumstances are exceptional and the restrictions relatively limited. However, the unease this causes, and the resulting public scrutiny of what is being done, is important to prevent us going too far down the road of censorship, to the point where the law does become engaged.

Blog by Amy Haughton, Associate Solicitor

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