Balkinization: Why There Is No Due Process Online?

Why There Is No Due Process Online?

Guest Blogger

New Controversies in Intermediary Liability Law

Martin Husovec

Online information gatekeepers are in the spotlight. Their roles are being questioned and societal expectations reformulated daily – not only in Europe, but around the globe. However, much of the attention of regulators is biased only towards achieving removal of the objectionable content. Owing to a never-ending stream of controversies, the regulators fail to see (or worse, decide to ignore) that, as much as societies risk under-removal of illegitimate content, they also risk over-removal of legitimate speech of their citizens.

No other regulator better illustrates this mindset than parts of the European Commission. As a direct offspring of the European refugee crisis, the European Commission set up an informal agreement with technology companies to quickly remove hate-speech in May 2016. Since then, the Commission publicly communicates that the less notified content is rejected by platforms (and therefore removed), the better for all of us. It does not take an expert to recognize that this thinking assumes that underlying notifications are flawless—something that the European Commission does not evaluate in its monitoring exercise. Despite the criticism, the Commission continues to celebrate increasing removal rates as some form of ‘evidence’ of the fact that we are improving. In reality, we are far from knowing what the net positive value of this exercise is.

Academics have long argued that even the baseline system of intermediary liability, which allocates responsibilities with several stakeholders under a notice and takedown regime, is prone to over-removal of legitimate speech. Faced with potential liability, providers have a rational bias towards over-removal; they err on the side of caution. These arguments have been proven right by daily news and rigorous empirical and experimental studies.

Although some regulators have started recognizing this as an issue, many still do not think that magnitude of the problem is too severe, in particular when compared to social problems associated with failing to enforce the laws. To be fair, even academics cannot yet properly tell what the aggregate magnitude of this problem is. We can point to the gap between false positives in removals and extremely low user complaint rates at the service level, but not too much more than that. The individual stories that make up this graveyard of erroneously blocked content are mostly unknown.

To their credit, the stakeholders have successfully voiced the problem recently. Several upcoming pieces of the Union law—such as the Digital Single Market (DSM) Directive, the Terrorist Content Regulation, and the Platform to Business Regulation—now include some commitment towards safe-guards against over-removal of legitimate speech. However, these are still baby steps. We are lacking a vision of how to effectively achieve high-quality delegated enforcement that minimizes under-removal and over-removal at the same time.

Article 17(9) of the DSM Directive mandates that E.U. Member States require some online platforms dealing with copyrighted content to “put in place an effective and expeditious complaint and redress mechanism that is available to users of their services.” The right holders who issue requests for removal have to justify their requests, and the platforms must use humans to review these user complaints. The Member States have to facilitate alternative dispute resolution (ADR) systems and should ensure respect for some types of copyright exceptions and limitations. The Terrorist Content Regulation aims to prescribe such mechanisms to the hosting platforms directly. Although the Commission proposed a full reinstatement obligation for wrongly removed content, the European Parliament recently suggested to soften it towards a mere obligation to hear a complaint and explain its decision (as seen in Article 10(2) of the proposal). Article 4 of the Platform to Business Regulation prescribes that complaint processes are available for cases of restriction, suspension or termination of services of business users.

All of these initiatives, even though well-intended, show a great deal of misbalance between two sides. While the regulators are increasingly ramping up the effort to increase the volume and speed of removals, by finding more wrongful content online and blocking it more quickly, their approach is almost surgical when it comes to over-removal. They suddenly want the platforms to weigh all the interests on a case-by-case basis. While the regulators apply all pressure possible on the detection and removal side by prescribing automation, filters and other preventive tools which ought to be scalable, they limit themselves to entirely ex-post individual complaint mechanisms that can be overruled by platforms in cases of over-removal errors. When fishing for bad speech, regulators incentivize providers to use the most inclusive nets, but when good speech gets stuck in the same nets, they provide the speakers only with a chance to talk to providers one-on-one, thus giving them a small prospect of change.

We fail to create equally strong incentives for providers to avoid over-removal at scale. Without parity in incentives, delegated enforcement by providers is no equal game; and without equality of weapons, there is no due process. Even with policies like the ones currently baked in the European Union, the users (whether private or business ones) have to invest to counter false allegations. They bear the cost, although they cannot scale up or speed up their defense. Without strong ex-ante incentives for higher quality review, the cost of mistakes is always borne by the users of those platforms since the correction takes place ex-post after a lengthy process. Even if somehow legitimate speakers prevail after all, the system, by definition, defies the legal maxim that justice delayed is justice denied.

The solutions that we need might not always be that complicated. The first experimental evidence suggests that exposing platforms to counter-incentives in a form of external ADR, which also punishes their over-removal mistakes by small fees in exchange for legal certainty, can in fact reduce the over-removal bias and thereby lower the social costs of over-blocking. The logic here is simple: if platforms bear the costs of their mistakes because over-removal suddenly also has a price tag, they have more incentive to improve by investing resources into the resolution of false positives too. Moreover, since platforms can learn at scale, each mistake is an opportunity for the benefit of everyone else, thereby improving the technology and associated governance processes in the long-run.

However, to complicate things further, regulators need to find a way to strike a balance between user’s expectations to share their lawful content and platform’s interest to pick and choose what to carry. Treating all platforms as states by imposing must carry claims to all legal content overshoots the target to the detriment of speech. However, treating platforms as purely private players underappreciates their existing social function. We need to find a mechanism that preserves the contractual autonomy, and ability to shape communities along some values or preferences, which at the same time safeguards due process of speakers. However, due process has to mean something more than mere explanation from a human. It has to amount to credible and timely contestability of decisions, which platforms cannot simply override without too much effort.

Martin Husovec is Assistant Professor at Tilburg University (appointed jointly by Tilburg Institute for Law, Technology and Society & Tilburg Law and Economics Center) and Affiliate Scholar at Stanford Law School’s Center for Internet & Society (CIS). He researches innovation and digital liberties, in particular, regulation of intellectual property and freedom of expression. He can be reached at martin@husovec.eu.

Posted 1:30 PM by Guest Blogger [link]