Hate Speech is as difficult to define as it is to regulate. There is no international consensus on what is considered hate speech and what isn’t. The difficulty with regulating hate speech is that it sometimes infringes on the freedom of speech, which is a right defended by international law. In the absence of a universal definition however, hate speech is a universal problem that has become ever more present with rapid developments in media and communication technology. It is important to note that hate speech is not an isolated issue that affects just a few communities or just a few loud voices.
This article is going to visit the concept of social media platforms regulating the behaviour of their users as a duty of care, and why that better regulates online hate speech!
1. Hate speech vs freedom of speech
The regulation of harmful speech in online spaces requires drawing a line between legitimate freedom of speech and hate speech. Freedom of speech is protected in the constitutions of most countries around the world, and in the major international human rights treaties. Of course, we know that despite this widespread protection, many countries do not provide effective protection for freedom of speech. One of the dangers of regulating hate speech online is that it will become a pretext for repressive regimes to further limit the rights of their citizens.
2. What are countries already doing?
Governments around the world are struggling with this problem, too. In New Zealand, for instance, there has been considerable debate over hate speech law reform, particularly whether there must be a clear link to violence before hate speech regulation can be justified.
Germany has enacted one of the toughest laws against online hate speech, imposing fines of up to €50 million for social media companies that fail to delete “evidently unlawful” content. Civil rights advocates, however, argue that it encroaches on freedom of expression.
France, too, passed a law last year that would have required online platforms to take down hateful content flagged by users within 24 hours, but a court struck down this provision on the ground that it infringed on freedom of expression in a way that was not necessary, suitable, and proportionate.
3. Statutory duty of care
The Carnegie Trust has developed a proposal to introduce a statutory duty of care in response to online harms. Similar to how we require the builders of roads, buildings or bridges to exercise a duty of care to the people using them, the idea is that social media companies should be required to address the harms their platforms can cause users.
The UK government incorporated this idea into its Online Safety Bill, which was just released in May for public discussion. Trumpeted as a “new framework to tackle harmful content online”, the mammoth legislation (which runs to 145 pages) is framed around duties of care.
There are still some concerns. The Carnegie Trust itself has critiqued a number of aspects of the bill. And the powers given to the culture secretary are of particular concern to free speech advocates.
Despite these concerns, there is much to be said for the overall approach being pursued. First, the legislation sits within the existing framework of negligence law, in which businesses owe a duty of care, or responsibility, to the general public who use the facilities they create and enable.
Second, it places the burden of responsibility on the social media companies to protect people from the harm that could be caused by their products. This is a better approach than the government penalising social media companies after the fact for hosting illegal or harmful content (such as happens under the German law), or requiring an eSafety commissioner to do the heavy lifting on regulation.
Regulating hate speech online is a major policy challenge. Policymakers must ensure that any regulation of social media platforms does not unduly impair freedom of speech. Given the complexity of the problem, close monitoring of new legislative initiatives around the world is necessary to assess whether a good balance has been struck between the protection of freedom of speech and the prohibition of hate speech.
Eileen Harrison writes for Homework writing service and is a content creator for websites, blogs, articles and social media platforms and one of the professional essay writers at Draft Beyond and Writinity.