Expert alert: A watershed in US digital democracy

Dr Alexander Brown is a reader in political and legal theory, in UEA’s School of Politics, Philosophy, Language and Communication Studies. He is the author of a major study on behalf of the Council of Europe looking at Models of Governance of Online Hate speech, published in May 2020. He researches hate speech on the internet, free speech and hate speech laws.

Dr Brown said: “What started earlier this week as a war of tweets between President Donald Trump and Twitter has transformed into an unprecedented moment in American digital democracy.

“Today Twitter added a ‘glorifies violence’ warning label to a tweet posted by Trump about the street protests sweeping American cities. That follows the tech giant’s decision to add a fact-check icon to a Trump tweet about mailed-out ballots.

“Twitter’s actions show that if Trump wishes to exploit the platform provided by tech companies like Twitter to speak directly to US voters and beyond, then he must play by their rules (almost) like everyone else.

“Trump had earlier threatened Twitter – and all Internet platforms, but Twitter only by name – with a change to Section 230 of the Communications Decency Act (CDA) of 1996. This Act provides a kind of ‘safe harbour’ to Internet platforms in the US. It treats them as hybrids: when it comes to their right to edit/delete content they are publishers, but when it comes to their potential liability for failing to remove illegal content (e.g. illegal threats of violence, illegal incitement to imminent lawless action, illegal hate speech) they are mere conduits like telephone companies.

“In Europe the situation is already quite different, as a recent Council of Europe study has demonstrated. In Germany and France, for example, Internet platforms can be held responsible and fined for patterns of failure to remove illegal content. And the signs are that a new EU Digital Services Act may copy the model for all member states.

“Some people, myself included, argued at the beginning of the dispute that Twitter was fudging its own content policies without sufficient cause. The special position, power and celebrity of politicians is not, I argued, a decisive reason to leave their harmful words on Twitter but rather a decisive reason to remove them. Indeed, managing the words by using a warning label may only serve to highlight and valorize them, albeit doing so may help to remove any symbolic sanction or authorization associated with leaving them up without a label.

“That said, it is fair to say that Twitter’s stand is an act of democratic courage. Trump is famous for doubling down on his enemies. Twitter just doubled down on Trump.

“Twitter has stood up against Trump in the face of these threats. Why? Maybe because it calculates that the constitutional, technical and political challenges to amending Section 230 will be insurmountable to Trump. Perhaps it reckons that Trump will lose the presidential election later this year. Indeed, Twitter could see this as part of the battle to remove Trump.

“Alternatively, it may be that Twitter just believes this is the right thing to do. Last year Twitter adopted the new tool of using warning labels – a type of content management as opposed to content removal – for tweets that violate its content policies (including on violent speech and on hate speech) when the tweets originate from the accounts of political figures. It argued that this was the right way to balance the special importance and value of free speech among political figures and the public interest in removing harmful content from Internet platforms.

“Of course, Trump could always delete his Twitter account, rather than try to create a loophole in Section 320 to prevent Internet platforms adding fact-check icons and warning labels to his online messages. But even Trump knows that he needs his Twitter account to help win the election. He could move onto Gab, and speak directly to his political base. However, then he risks no longer reaching swing or undecided voters. In the end Trump wants to win more than he wants to be right.”

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