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

by Foley Hoag LLP - Corporate Social Responsibility

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.

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