The Contemporary Remedy for Extreme Speech Online: “Notice and Takedown” In and Out of the Shadows
Neil MacCormick Room, Old College
Mon 30 January 2023
About the event
What is politely termed ‘content moderation’, but is actually content-removal, has rapidly become the preferred remedy for several states in Europe and beyond and the EU in dealing with extreme speech on social media. Since it only applies to material on online platforms, its removal does not, unlike criminal sanctions or prior restraint, directly assail the individual right to utter the content in question, given other modes of expression exist. However it does at least render the message of such posts far less visible and at most, practically absent from the public sphere. This paper considers the legal/constitutional and normative/conceptual concerns that arise from three different models of content moderation operating in the EU and beyond. These are (a) ‘pure’ self-regulation - platforms removing content that offends their own ‘community standards’; (b) ‘voluntary’ state-directed removal, as under the EU’s Hate Speech Code, where the Commission and other authorities additionally ‘notify’ platforms of content to be removed; and (c) compulsory state-directed content moderation, as under e.g. the German NetzDG law, the EU’s 2021 Regulation on terrorist content online and the EU Digital Services Act (when it comes fully into force in 2024). While model (c) is a form of direct (partial) state censorship, such formal legal schemes not only come with legal remedies but also engage the protections provided by national and international free speech guarantees and allow supervision by independent courts. Hence this paper considers whether model (b), which operates outside law, ‘in the shadows‘, as a form of state-directed, privatised speech-restriction, without legal rights to notice or remedy, may be the more insidious free speech problem.
About the speaker
Professor Gavin Phillipson, Professor of Law, University of Bristol Law School and Visiting Fellow at the Bonavero Institute for Human Rights, University of Oxford
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