An analysis of the application of international human rights law to content moderation on social media platforms

Abstract

Content moderation is a vital component of the business model utilised by global social media platforms. These internet-based services offer entertainment, news, and a space for sharing ideas and information. Platforms regulate which information and ideas, as well as which users and the extent to which they can access, receive, and share them. This is achieved by defining the scope of permissible content through rules outlined in service agreements and community guidelines and enforcing these rules by making value judgments about content visibility, removal, and user access. Ultimately, platforms define the scope of the exercise of the right to freedom of expression online without regard to the laws of any State. However, it is presumed that the laws of a platform’s State of origin determine the limits of the authority platforms have over the exercise of the right to freedom of expression online. Under international law, States are required to regulate social media platforms and must protect human rights from adverse effects arising from the operations of platforms. According to the International Covenant on Civil and Political Rights, States must promulgate laws that safeguard the right to freedom of expression. Additionally, States must exercise due diligence when they regulate social media platforms. According to Article 19(3) of the ICCPR, while freedom of expression can be restricted, any restrictions imposed must comply with the standards set in the Article. States regulate social media through intermediary liability laws that permit self-regulation and shield platforms from legal liability for the decisions they make regarding user expression online. The conventional construction of treaties suggests that they do not apply to non-State actors and are thus not applicable to social media platforms. Therefore, this study critically assesses the applicability of international human rights law, particularly Article 19 of the ICCPR, to social media. This study shows that Article 19 of the ICCPR and the obligations derived from it apply to social media platforms and are enforced indirectly through the traditional framework. Alternatively, Article 19 is directly applicable, and platforms must abide by its obligations when moderating content.