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Between Freedom of Speech and Online Security

It seems like the news about internet laws are put on the conveyor belt. There are laws that demolish previously established internet regulations or copyright directives that kill memes and question further online creativity. There’s also the FCC’s move away from net neutrality which eliminates equal access to the internet. These and other laws aren’t obviously aimed at establishing total internet censorship, but the case is they kind of are.

Laws that Kind of Censor Internet

One of the earliest pieces of internet regulation was Section 230 of the 1996 Communications Decency Act. Simply put, it protected online services from being held legally responsible for what users say and post on their platforms. Without it, service providers would have become targets for individuals, governments, and corporations willing to limit the freedom of expression for any reason. Nevertheless, 22 years later, people began questioning Section 230 due to the rise of online harassment, hoaxes, fake news, and hate speech.

The first step towards neglecting this legal “shield” was the introduction of the FOSTASESTA package in the US in April 2018. The essence of the package was to provide legal punishment for websites that are somehow related to sex trafficking.

Congresswoman Ann Wagner said that “online trafficking is flourishing because there are no serious, legal consequences” for websites that profit from sex trafficking and that the “FOSTA-SESTA package will finally give prosecutors the tools they need to protect their communities and give victims a pathway to justice.”

However, SWOP-USA, a sex-workers advocacy group, regarded the FOSTA-SESTA package as a “disguised internet censorship bill” that jeopardizes working conditions in online sex industry and censors Internet by removing the protection given to websites under Section 230.

“There’s a long history of states passing extremely broad censorship laws in the name of combating trafficking. Let’s unpack that. Under SESTA, states would be able to enact laws that censor the Internet in broad ways. As long as those laws claim to target sex traffickers, states could argue that they’re exempt from Section 230 protections,“ said Alex Andrews, SWOP-Orlando Representative.

Around the same time, the EU ministers approved proposals from the European Commission aimed to fight inappropriate videos, such as those featuring hate speech or calls to terrorism, posted on social media platforms. The new Audiovisual Media Directive (AVMD) has given the full control over user-generated content to video-sharing platforms, such as Netflix, YouTube or Facebook. Even though AVMD contributed to the elimination of inappropriate and downright harmful content, it can be used to effectively censor the content, given that the right labels are in place. Moreover, the AVMD contradicts the E-Commerce Directive meant to protect the freedom of expression by ensuring that internet companies can’t be obliged to delete user-generated content.

Unsurprisingly, the establishment of such contradicting laws questions the relevance of the E-Commerce Directive, the European analog of the US’s Section 230.

“Reforming the E-commerce Directive is unavoidable,” said Marietje Schaake, a Dutch Liberal member of the European Parliament specialized in digital rights, “De facto steps taken by big tech platforms to tackle terrorist content, disinformation and copyright infringements already make their claims of being ‘neutral’ dubious.”

Right now, both the US and the EU are effectively moving away from the free internet, regardless of how cruel, chauvinistic, and unfair it can be, to something completely different and definitely without the word “free.”

Freedom of Speech as Collateral Damage

Compared to China that banned Google, or Russia that has gone to great lengths to ban a messenger service with no actual avail, none of this laws comes even close to threatening the freedom of speech in such a direct manner. Most likely, they don’t have any oppressive agenda at all, though the freedom of expression might become a collateral damage in that case.

While the idea of censorship looks inadmissible in the free world, the obvious truth that the freedom of speech is not limitless. One cannot go proselytizing terrorist agendas across the internet because the dissemination of such views brings more harm than their exclusion from the list of allowed topics. The same logic suggests that disseminating information on activities that are regarded as adverse not just by law but also by common opinion should not be included in the scope of freedom of speech. After all, it’s very unlikely that you or anyone you know would sincerely defend the right of some criminals to sell slaves online.

With that in mind, it is the government in the broad sense of the word who has the authority to deal with such matters. Policing is one of its functions. What we see in the US is that the government seeks to delegate some of its oppressive functions to businesses, which should introduce certain censorship measures at their own expense. Is it just lazy policing? It could be, considering who is the current resident of the White House. The contradiction between Section 230 and FOSTA/SESTA could be a result of equally lazy lawmaking, rather than an ominous attempt to subvert the fundamental democratic values through democratic processes. After all, Hanlon’s Razor suggests that one should never attribute to malice that which is adequately explained by stupidity.

Such contradictions between laws, should they arise, are usually addressed by constitutional courts, or, in case of the US, by the Supreme Court. That’s one of the functions of the judiciary branch, and that’s one of the reasons why there is a Supreme Court in any country in the world. Still, this standoff between two laws could indeed result in certain problems for internet users.

The AVMD is, in some way, the way for the European authorities to delegate their policing function to the corporations that host and handle content online. Now, one of the potential scenarios is that the authorities will become able to silence the undesired voices without even getting blamed for totalitaristic approach. The businesses, on the other hand, will have to put additional effort into filtering the uploaded content, either automatically or manually, and balance on the edge between becoming censorship machines and being shut down by the government.


In both cases, the very problem comes down to the interaction between governments and very big companies, while the end user interests are thrown to the back burner. This is a very strange thing for a democratic society that actually consists of end users, legally known as citizens. In both cases, the contradiction may lead to prolonged legal proceedings that would have to somehow sort things out. Where would it lead us as end users? Of course, only time (and possibly the court) will tell.

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