On May 31, 2016, the European Commission together with Facebook, Twitter, Google’s YouTube, and Microsoft (the ICT Companies) issued a voluntary Code of Conduct on Countering Illegal Hate Speech Online that requires removal of any hate speech, as defined by the European Union. The impetus for this Code included the rise of intolerant speech against refugees as well as concerns that hate speech fuels terror attacks. Germany in particular has garnered significant media attention for its robust crackdown on Internet hate speech targeting refugees.
The road to governmental excess can be paved with good intentions in times of crisis, with the laudable goals of refugee protection and terror prevention reflecting such good intentions in this case. Civil society groups have criticized the Code as endangering freedom of expression and lamented their exclusion from its drafting process. A Harvard law professor was initially outraged at the U.S. companies for selling out on First Amendment free speech principles, but ultimately decided that society shouldn’t expect private sector actors to protect speech.
With governments no longer holding exclusive power to resolve international crises and companies playing significant roles in global affairs, it is not surprising that U.S. companies find themselves in the middle of this debate, triggering three key questions: Should the ICT Companies have agreed to this Code? Is it fair to expect that U.S. companies will seek to respect freedom of expression abroad when democratic governments raise concerns about risks to refugees and others? How should these companies handle future requests to take down hate speech in Europe?
This Essay seeks to unpack these questions. The Essay first examines the Code’s hate speech definition as well as the companies’ commitments. It then analyzes whether such commitments comport with two leading business and human rights frameworks that the U.S. Government supports: the United Nations Guiding Principles on Business and Human Rights and the Global Network Initiative. The Essay concludes that the Code is inconsistent with these frameworks as well as U.S. governmental expectations for U.S. companies operating abroad. This Essay then proposes ways forward for the key enforcers of the speech code, the ICT Companies.Download the PDF