Freedom of Information on Social Networks: Is Advertising in the New Digital Town Square Like Advertising in the Actual Town Square?

By: Dana Yaffe.

The significant influence of social networks in the conduct of public discourse in the world has direct ramifications in terms of the scope of legal protection afforded to basic rights, including the right to online freedom of expression. Given the dominance of these platforms, public discourse in cyberspace is often compared to discourse in the “town square.” From this perspective, these platforms have a greater influence on the realization of the right to freedom of expression than public authorities. While actions of public authorities restricting expressions are subject to constitutional and administrative review, the question arises as to what laws apply to actions to restrict public discourse imposed by the internet discourse platforms, which are inherently private companies. We should recall that in these services, offered by international internet giants, are not subject in Israel to any specific regulatory regime beyond the general law applying in the state. As a result, a question arises regarding the “general law” that applies to these private companies in the context of their users’ basic rights. This question applies to publications posted “free of charge” on these platforms, as well as to content users seek to promote on the platforms in return for payment.

Whether because of their strong dominance among the public or because of the effective advertising mechanism offered by the internet giants, these platforms now account for a substantial portion of the advertising market. In Israel, online advertising is rising constantly. As of 2018, advertising on the internet accounted for one-third of the advertising market in Israel, and was conducted primarily through the two internet giants Google and Facebook (by way of example, see the report of the Knesset Research and Information Center submitted to the Economy Committee on the subject of The Impact of Changes in Advertising Expenditure on the Media Market, dated 18 October 2018). Advertising on these platforms includes advertisements for commercial products with the goal of securing financial profit, but also the promotion of content for other purposes, such as the advancement of social or political protests, whether ongoing or ad hoc, and, of course, election propaganda.

The Clinic on Digital Rights and Human Rights in Cyberspace is currently representing the Alei Yarok – Liberal Party and its campaign manager, after the account used to publish its paid advertisements was blocked by Facebook. The account was blocked after the publication of advertisements for a crowdfunding campaign to submit a petition to the Israeli Supreme Court challenging the current legal arrangement for the cannabis market in Israel. The advancement of the legalization of cannabis forms the main component in this party’s platform. According to Facebook’s policy, advertisements encouraging the use of drugs are not permitted. We argued that these advertisements do not encourage the use of drugs, but rather support public activities centering around a petition seeking to change the existing law. Following the Clinic’s intervention, Facebook unblocked the account. We are currently clarifying ancillary legal issues surrounding this blockage. In this instance, the problem would appear to have been resolved satisfactorily. 

As I see it, however, this examples illustrates a more complex problem. What would have happened if Facebook had decided that it would not permit paid advertisements promoting court petitions – or paid advertisements noting the difficulties involved in the use of light drugs?

The relations between those who publish paid content on these platforms and the platforms themselves are regulated primarily according to a standard contract that establishes terms of use of the platform, including restrictions regarding the content that may be published. The contract between the advertisers and the platforms is, of course, subject to the law, though it is not always clear to the law of what country (see, for example, PCA 5860/16 Facebook Inc. v Ohad Ben Hamo, published in Nevo, 31 May 2018). If we assume that this contract is subject to Israeli law, it is thus subject to the Prohibition of Discrimination in Products, Services, and Entry to Places of Entertainment and Public Places Law, 5761-2000. This law prohibits discrimination in the supply of services on the grounds of worldview. 

Case law in Israel has already recognized that paid advertisements constitute a “service” as defined in the law (see, for example, CA (TA Dist.) 35563-02-12 Association for the Protection of Personal Rights, Reg. Ass. v Unified Makor Rishon (Hatzofeh) Ltd. (published in Nevo, 12 Jan. 2014)). It has also been established that the law applies to websites (see, for example, CC (Jer.) 9532-10-14 Israel Religious Action Center – Israel Movement for Reform and Progressive Judaism v Erez Lieberman (published in Nevo, 15 Oct. 2017)).

It is possible to imagine cases in which it will be easy to argue that a decision by these platforms to prevent a certain advertisement will constitute prohibited discrimination in accordance with the law. An example of this would be a situation in which a platform permits the publication of advertisements supporting a particular position (for example, in favor of signing a peace agreement), but refuses to publish advertisements supporting the opposing position (opposing the signing of the said agreement). It will be easy to substantiate an argument that this constitutes discrimination on the grounds of worldview, which is prohibited according to the law. This would also be case if the body seeking to promote this content is a legally-registered political party in Israel, as in the instance discussed above.

However, what about a situation where a platform decides that it does not wish to publish any information about a particular subject? Is a private company not free to determine that the character of a service is inconsistent with publication on certain topics? If it can be proved that the company does not publish any information on a given subject, the claim of discrimination on the grounds of worldview is weakened. This is particularly true in light of the exclusionary clause in the law stating that an action required by the character or essence of the service is not considered discrimination (see section 3(D)(1) of the law). Are the private platforms not entitled to determine the character of the service they wish to offer to their users?

Establishing a policy of refraining from publishing paid advertisements on a given issue on a key platform for public discourse constitutes a significant de facto violation of freedom of expression, even if we do not regard it as discrimination. And let there be no mistake: if the paid advertisements were intended to promote a political agenda, or a social approach on issues relating to the character of society, we are not referring solely to damage to the freedom of commercial expression. Such cases also entail damage to the freedom of political expression. The breakdown of the advertising market shows that preventing the promotion of ideas on these platforms will serious impede efforts to promote these ideas in society, particularly in the case of issues that are not represented by the social hegemony. Accordingly, the strength of the violation of freedom of expression is considerable. 

The more consistent the definition of prohibited subjects is with the law, the more it would seem possible to justify it. Thus, for example, policy stating that it is not possible to publish content constituting a criminal offense may be considered reasonable. Policy excluding advertisements for tobacco or alcohol products is also consistent with the Restrictions on Advertisement and Marketing of Alcoholic Drinks Law, 5772-2012, and the Restrictions on Advertisement and Marketing of Tobacco Products Law, 5743-1983. But what about policy stating that no advertisements will be published that include information about military conflicts? Or information about controversial political issues? Information about diseases in general, or about sexually transmitted diseases specifically? Can such policies stand?

In order to determine this question, we must first determine whether advertising on these forums is synonymous with advertising on a private platform, such as a building on the street belonging to a private business. Or perhaps we should take the “town square” analogy a step further and argue that advertising on these platforms is synonymous with advertising in the town square – on the public street?

It would seem that the time is right to attempt to examine the commitment of these platforms to maintaining public discourse from a perspective that combines civil and public law, and to expand the consideration of the restrictions imposed by private companies on the content that may be promoted on their platforms to include the prism of public law. 

This will not be the first time that public norms are imported to private law, in cases when private bodies provide services of a public character. The UN Human Rights Commissioner has called for the internet giants to accept the universal human rights regime (for example, see the Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, UN Doc. A/HRC/38/35 (2018)). According to section 30 of the Contracts Law (General Section), 5733-1973, any contract is also subject to the “public good.” We may even go further, establishing that, in light of the structure of the media and advertising market and the service offered by these platforms, they constitute a dual-purpose body in terms of the service they offer for the publication of advertisements. This will be consistent with the approach adopted by the Supreme Court when it recognized that private bodies that provide burial services, for example, do not constitute an “ordinary” private body, but constitute a dual-purpose body that by virtue of the nature of their actions and the services they provide also include a public dimension (see, for example, Chevra Kadisha v Kastenbaum (published in Nevo, 30 April 1992)). 

We may examine advertising on these platforms and the restrictions that may be imposed thereon in a similar (albeit not identical) manner to advertisements that may be published on billboards in the public domain, which are not permitted to prevent the publication of paid political content. A recent Israeli court established that a local authority is not permitted to decide that advertising surfaces will carry only commercial advertisements, thereby preventing the publication of political content. It was also been ruled in the same case that even if the local authority were permitted to do so, it would be required to exercise this authority in light of the provisions of the Basic Law: Human Dignity and Liberty, while examining the presence of other effective alternatives for political advertising (see Adm.App. 4058/16 Givat Shmuel Municipality v Arik Institute for Reconciliation Tolerance and Peace in Memory of the Late Aryeh Zvi Frankenthal, published in Nevo, 26 June 2017).

By way of analogy, it can be determined that online platforms that constitute a significant portion of the advertising market may not impose restrictions on the subjects of advertising on the basis of content, with the obvious exception of the adoption of various advertising restrictions established in law (such as the advertising of tobacco products or alcohol, as mentioned above). It may certainly be possible to think of types of content that should properly be restricted, for example to users of specific ages – but the ability of advertising on the platforms to focus and adapt to a specific age group actually permits the establishment of softer restrictions than those established by public authorities for advertising in physical public spaces. 

The Clinic on Digital Rights and Human Rights in Cyberspace was established this year as a cooperative endeavor of the Federmann Cyber Security Research Center and the Center for Legal Clinical Education at the Hebrew University, where I am proud to lead the clinical work. The Clinic has set itself the goal of ensuring the protection of the right to freedom of expression, and of human rights in general, in cyberspace. To this end, it offers legal aid to any person whose rights have been violated in cyberspace. Click this link to contact the Clinic.