Protecting Users' Rights to Free Expression and Preparing for the Extremely Exceptional Circumstance

by Foley Hoag LLP - Corporate Social Responsibility
Contact

Google's decision to block access to an anti-Islamic video in Libya and Egypt as a result of widespread violence highlights some of the complex challenges that face companies that host user-generated content. Companies that host such content must confront circumstances in which the nature of that content can have far-reaching effects ranging from affronts to cultural norms to difficult political and security challenges.

At the same time, restrictions on that content implicate users' rights to free expression. In this context, as Tim Wu, professor of law at Columbia University, observed in response to Google's action,“most free speech today has nothing to do with governments and everything to do with companies."

Google has determined that the video does not violate YouTube's terms of service. Yet, as protests in several countries grew violent and lives, including those of several Americans, were lost, a decision was made to restrict access to the video in Libya and Egypt, at least temporarily. In a public announcement of the decision, YouTube stated

"We work hard to create a community everyone can enjoy and which also enables people to express different opinions. This can be a challenge because what's OK in one country can be offensive elsewhere. This video — which is widely available on the web — is clearly within our guidelines and so will stay on YouTube. However, given the very difficult situation in Libya and Egypt we have temporarily restricted access in both countries. Our hearts are with the families of the people murdered in yesterday's attack in Libya."

By providing platforms for user content that both accessible around the world and capable of restriction, Google, and other companies, must confront both legal and political challenges in determining when restrictions are appropriate. In this content, Andrew McLaughlin, a former top policy official at Google, observed last week that companies now play an "adjudicatory role on free speech." 

Companies play this adjudicatory role in circumstances in which there may be little time for fact-finding and deliberation. Corporate stakeholders expect companies to be protectors of users' rights, but also to be accountable for any adverse impacts of their operations, including decisions to do nothing.

Google's decision provoked a mixed reaction. The Electronic Frontier Foundation, a policy and advocacy organization, criticized the decision, stating that

"Once YouTube has made the decision to pro-actively censor its content, they start down a slippery slope that ends in YouTube Knows Best moral policing of every video on their site. It is disappointing to see YouTube turn its back on policies that have allowed it to become a such a strong platform for freedom of expression."

Other stakeholders observed that it was hard to question the company's decision to try and calm a volatile atmosphere in which people had been killed, but wondered whether Google had established a precedent whereby violence could be used to stifle expression. Rebecca MacKinnon, co-founder of Global Voices, stated that the impact of the decision "depends on whether this is the beginning of a trend or an extremely exceptional response to an extremely exceptional situation.

Google has made a significant effort to highlight the challenges faced by companies that seek to protect users' rights to free expression including through the publication of a regular transparency report detailing government requests to restrict such content. Google has also been active in a number of initiatives meant to protect users' freedom of expression, including the Global Network Initiative. In this context, when making its decision last week, Google likely benefited from an overall sense on behalf of many stakeholders that the company takes these issues seriously and makes determinations in a manner guided by executive-level consideration.

Last week's events should provoke many companies to assess how they would respond in analogous situations. Companies make difficult decisions in exceptional circumstances with significant impacts on the lives and freedoms of people around the world. Companies should have policies and procedures in place so that, in the heat of the moment, it is clear:

  • Who within the company is responsible for making such determinations? and
  • What principles or values will guide internal decision-making?

In evaluating internal capacity, companies should assess the extent to which existing or potential relationships with external stakeholders can be used to assess, and test, the appropriateness of the factors that guide internal decision-making. Companies must also confront the challenges posed by the truly exceptional set of circumstances: not all scenarios will fit neatly within guidelines developed during moments of relative calm. Are some circumstances sufficiently exceptional so as to be distinguishable? If so, who within the company is responsible for identifying and responding to such circumstances in contexts in which established precedents can be extremely damaging?

Ultimately, companies must know that if they are going to be adjudicators of users' fundamental rights, they should expect to confront reactions not only to their final determinations, but also to the processes and principles that guided those determinations.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Foley Hoag LLP - Corporate Social Responsibility | Attorney Advertising

Written by:

Foley Hoag LLP - Corporate Social Responsibility
Contact
more
less

Foley Hoag LLP - Corporate Social Responsibility on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.