Intermediaries & Private Speech Regulation: A Transatlantic Dialogue - Workshop Report

Abstract

The Wikimedia/Yale Law School Initiative on Intermediaries and Information (WIII) at Yale Law School has released a comprehensive report synthesizing key insights from intermediary liability and online speech and expression experts in Europe and the United States. The report focuses on the critical but complicated issue of private speech regulation on the internet and the connections between platform liability laws and fundamental rights, including free expression. The report reflects discussions held at “Intermediaries & Private Speech Regulation: A Transatlantic Dialogue,” an invitation-only workshop convened by WIII, featuring leading internet law experts from the United States and Europe. This report highlights insights and questions raised by leading academics and legal practitioners during the event, providing theoretical ideas, practical experiences, and directions for further research on rapidly evolving questions of intermediary liability from a uniquely transatlantic perspective. (Nothing in the report necessarily reflects the individual opinions of participants or their affiliated institutions.) Key takeaways from this report include the following: Europe and the United States must work together to protect online free expression and access On issues of intermediary liability and online speech, the United States and Europe have much more in common than not. Focusing too much on differences between Europe and the United States can lead to unproductive division of resources and intellectual efforts, particularly if the goal is to protect global democratic values of free expression and access. While the development of the early internet may have reflected primarily American values, today’s internet ecosystem is also shaped by the growing influence of the European Union. Future international standards must also include perspectives from other nations and regions, as the internet is global. Collaboration between countries on online speech issues can be helpful and should be encouraged. Regulatory solutions for online speech issues must address the entire internet ecosystem Regulating internet intermediaries is not enough to protect online speech. Regulations must conceptualize and regulate the growing data economy. Some large tech companies are now extremely powerful, with the largest intermediary companies having as much international negotiation power as nation-states. The increasingly disparate power of a few large tech platforms may also lead to a loss of decentralized discourse and increased difficulties for new competitors to enter the market. The law should protect free speech and expression rights against abuses from government as well as from corporations. Policymakers must narrowly tailor regulations to protect online free speech and expression Policymakers should avoid creating overly broad regulations and instead tailor regulations narrowly to best address consumer harms. One way to do this might be to craft regulations that distinguish between types of intermediaries or perhaps between types of harms. Another option for tailoring regulations is to craft regulations tailored toward protecting or managing different types of speech. There may also be alternative or additional models that include either hybrid state-industry regulatory regimes or models that give greater weight to civil society and to individuals. Industry and civil society must work together to combat harmful indirect speech regulation States are using corporate terms of service and content takedown mechanisms as a form of indirect speech regulation. This indirect speech regulation is effectively a form of prior restraint. When states use intermediaries as proxies for speech regulation, this has a negative impact on rights to free speech and free expression. Indirect speech regulation lacks transparency, and there is no accountability or redress for citizens whose speech has been silenced. Practical strategies to fight against this problem include: 1) calling for greater government transparency, through the FOIA process or through NGO audits; 2) working with companies to gather information, for use in academic and policy research; 3) advocating for individuals and groups who have been disproportionately harmed; and 4) other forms of advocacy, including amicus briefs, policy papers, and impact litigation. New laws can create better models for future regulation of online speech By analyzing failures of existing regulations and noting successes, academics and advocates can create better models for future regulations of online speech. Future regulatory models for protecting free expression online can draw from: U.S. legal concepts from media and telecommunications regulations, including the “must carry” obligation and consumer protection law; U.S. First Amendment and property law doctrine; European human rights law regarding freedom of expression; and precedent from both the United States and Europe regarding due process. Other new frameworks that can be useful in shaping future regulation include the information fiduciaries model and the implementation of strong duty of care standards. Regulatory models can also include incentivization of systemic, architectural solutions on the part of companies.