By: Dana Yaffe and Racheli Edri.
Facebook's decisions on content removal affect how we consume and share information, how we perceive our rights to freedom of expression, and the right to information
What kind of entity is Facebook? Is it just a private company? Or when it makes a decision to remove a page that has a large number of followers, does it have the characteristics of a public figure? This is the question posed by the Movement for Freedom of Information, represented by the clinic on Human Rights in Cyberspace at the Hebrew University, to the Israeli Supreme Court in the hearing regarding Facebook’s decision to permanently remove a page with over 700,000 followers named “Tweeting Statuses.”
The Movement's position is that such a decision is not just a matter of contract interpretation, or a mere dispute between two private parties, but rather a matter of great public interest. Ehen it comes to decision of content removal, Facebook's unique character and position in cyberspace has to be considered, and accordingly, it must be obligated to ensure a fair and transparent process with its users.
The central status of Facebook in cyberspace is universally acknowledged. The platform has more than two billion users worldwide, and in Israel over 60 percent of the population uses it. For these users, the platform is the one to determine to which information they will be exposed. it knows us better than we know ourselves.
During the hearing in the Supreme Court, in order to illustrate the great power Facebook has, Justice Amit mentioned the television series Black Mirror. By his inspiration, we recommend to watch the second episode of the fifth season, in which a desperate man decides to kidnap an employee of an international technology company. The London police is present physically, while Smithereen, the company, is also present – in cyberspace.
Which intelligence body has access to the information needed to save the situation: the British police and the FBI, or Smithereen, California? Who will be the first to decipher the kidnapper’s mental state and manipulate it, or to trace his last actions? Who will manage to penetrate the common domain of the kidnapper and the hostage and listen to their conversations?
Smithereen is analogous to Zuckerberg's omnipotent and omnipresent Facebook. It is the gateway to any social, personal or professional interaction in today’s world, providing us with essential services of content and media. Through these services we consume news and information and thus they shape the consciousness of the masses. It has unprecedented information about each of its users – and knowledge is power.
Facebook has enormous power over each and every user, leading to an almost unbelievable advantage it has over ‘The State’. Facebook's decisions on content removal affect how we consume and share information, how we perceive our rights to freedom of expression, and the right to information.
In light of all this, one must wonder how Facebook makes its decisions. What considerations guide it, and what values it takes into account upon making such a decision? A more simple question is: how much content did Facebook remove in Israel claiming that it is in breach of its policy? An answer to this question was not given during the hearing, since the transparency report Facebook published includes various statistics, but it is not detailed by states.
Facebook has special characteristics and is clearly not an ordinary player. The question as to what legal obligations should be borne by such a company must be examined very cautiously. The imposition of obligations on a private body whose main purpose is to maximize profits might in itself lead to violation of basic rights. Imposing legal liability on Facebook on account of content uploaded by its users, might encourage extensive removal of content, including legitimate content. Facebook must certainly not be entrusted with the task of determining which information is true and which is false, as if it was the “Ministry of Truth”.
Equally, though, it is clear that some regulation is required. Is this a radical position? Apparently not, since Zuckerberg himself has acknowledged publicly the need for regulation, as has Bill Gates. Both moguls have declared that regulation is needed in view of the far-reaching effects of their developments on civilization. The Head of the Israeli Elections Committee, Justice Hanan Meltzer, apparently shares this position and has obligated Facebook to meet the legal transparency requirements of political campaigns during the Israeli election period. The first step toward shaping proper regulation is to require fair and transparent content removal process, so that we have the information needed to base and enact carefully considered regulation.
The writers are lawyers. Dana Yaffe is the clinical director of the Clinic on Human Rights In cyberspace at the Hebrew University, and Racheli Edri is the CEO of the Movement for Freedom of Information.