Free Speech in the Puzzle of Content Regulation

Free speech, one of the oldest and most widely recognized constitutional rights in many countries across the world, is traditionally perceived as the liberty to express oneself and is indispensable as it guarantees the opportunity for citizens to participate in the government (Kentridge, 1996; Meiklejohn, 1961; Stevens, 1993). Also, it has been recognized as a fundamental human right in many of the international and regional instruments. However, when free speech adopts an increasingly dark and deeply malicious tone, it plays a conflicting role with other rights, such as the right to privacy, and the right to freedom of thought and religion (Bychawska-Siniarska, 2017; Smet, 2010; Sullivan, 2010). Navigating these conflicts requires a delicate balance between upholding free speech and addressing its potential adverse consequences on other rights and societal values. Different jurisdictions adapt various approaches and preferences in balancing conflicts among these fundamental human rights. For instance, in the United States, a strong preference is placed on protecting free speech, as guaranteed under the First Amendment to the Constitution. For example, in the case of New York Times Co. v. Sullivan, where the New York Times published an ad by civil rights activists criticizing the Montgomery, Alabama, police’s treatment of protestors, containing some inaccuracies. Police Commissioner L.B. Sullivan, claiming the ad defamed him, won a libel case against the Times in Alabama courts. The New York Times appealed to the U.S. Supreme Court, arguing the ad’s content was protected under the First Amendment and not intended to harm Sullivan’s reputation. The U.S. Supreme Court unanimously ruled in favor of the New York Times, establishing that the First Amendment protects the publication of statements, even if inaccuracies exist. The Court introduced the standard that a public official claiming libel must prove the statement was made with actual malice, meaning with knowledge of its falsehood or reckless disregard for the truth. This decision emphasized that vigorous debate about government and public affairs is protected under the First Amendment, even if such debate includes vehement criticism and mistakes. The ruling extended First Amendment protections to the press, significantly impacting how libel and defamation are approached legally, particularly in cases involving public figures and officials. In a 2015 Time magazine survey involving over 50 law professors, this decision was named the best Supreme Court decision since 1960 by both Owen Fiss of Yale and Steven Shiffrin of Cornell.

Undoubtedly, social media has significantly contributed to the proliferation of free speech online. This chapter begins with an overview of the evolution of social media platforms over time. It then delves into contemporary case studies to analyze how social media has contributed to the evolution and amplification of free speech within democratic spaces. While recognizing the intriguing challenges posed by widespread social media use, the chapter assesses the pros and cons of unlimited free speech online, stressing them through the lens of the need for regulatory measures.

This chapter focuses on two interconnected variables critical to the study: free speech and Internet intermediaries. It delves into the international framework to illustrate the global recognition of free speech amidst debates on competing rights and values. Additionally, the chapter explores the concept of intermediaries, highlighting the pivotal role of intermediaries in content moderation practices worldwide. Given the Internet’s universal and international character, and the global nature of content moderation, this discussion aims to provide a thorough analysis from the perspective of international recognition. This foundational analysis sets the stage for the deeper discussions that will occur later in the book.

The chapter explores the regulatory need of the social media platforms, focusing on the various approaches employed by different regulatory models to manage online content and their effects on human rights, particularly free speech. It highlights the necessity for a regulatory model in social media, identifying three main models discussed within the context of social media governance by scholars and policymakers: internal, external, and co-regulation. Through meticulous examination and case studies, the chapter outlines the challenges and chances associated with each model. It aims to identify the most effective model for navigating these challenges while ensuring the protection or promotion of free speech online. Additionally, the chapter extends the discussion to intermediary liability models, which are crucial for developing co-regulation frameworks that accommodate both authorities and private platforms.

The contemporary expansion of authoritarian regimes into digital platforms poses significant challenges to democratic values and human rights, including free speech. This chapter examines four methods through which governments carry out digital authoritarianism: mass surveillance, cyber-operations, censorship, and information operations, along with their potential implications for democratic society. By analyzing these through case studies, the study aims to identify the challenges in externally regulating Social Media Platforms—which empower government authorities—often resulting in authoritarian control in the jurisdictions like China, and Russia.

This chapter explores the regulation of social media from the perspective of the United States, focusing on Section 230 of the Communications Decency Act. It examines the significant role social media plays in free speech and democratic discourse, particularly during widespread movements and elections. The study delves into the legal challenges of regulating social media content, emphasizing Section 230 while analyzing issues related to protecting free speech and achieving consistent content moderation both in the United States and globally. It proposes an “interpretational shift” in judicial approaches to Section 230 cases and addresses the risks of amending the section. Additionally, the chapter suggests that any amendments to the “safe harbor” provision should include clear standards to safeguard free speech online.

The EU has been proactive in creating comprehensive legislative frameworks to address contemporary challenges faced by its member states, with platform moderation and regulation being key areas of focus. The Digital Services Act (DSA) serves as a prime example of this effort. Despite its general stance of minimal interference with Internet freedom, Germany enacted the controversial Network Enforcement Act (NetzDG) in 2017, which took effect in 2018, to tackle hate speech and fake news. This chapter discusses the impact of NetzDG on free speech online—with the paradigm of DSA, particularly on the regulations of social media platforms (SMPs)—through an analysis of judicial, research, scholarly, and policy debates. While acknowledging and supporting the shift of platform governance to private platforms, the chapter identifies critical challenges posed by the current regulatory framework. It proposes strategies for addressing these challenges in the governance of social media content, aiming to protect the inherent rights to free speech recognized both locally and globally.

While the Information Technology (IT) Act of India (2000) stands as a pioneering effort in technology regulation, India introduced the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules in 2021. This move aimed to tackle emerging issues in digital spaces by regulating digital platforms, including social media platforms (SMPs), digital news portals, and OTT platforms. Despite introducing significant contemporary standards, such as the revocation of platform immunities and imposing additional obligations on Internet intermediaries, the framework faces practical challenges. This chapter analyzes the role of social media within the Indian context, examining its contributions to free speech and social movements. It also reviews the regulatory landscape prior to the 2021 IT Rules, with a particular focus on Section 66A of the IT Act. However, the core of this paper is to discuss the background, key features, and critical analysis of the newly implemented IT Rules of India, with a special emphasis on the potential challenges they pose to online speech across various SMPs. Acknowledging these challenges, the chapter concludes with suggestions for overcoming these obstacles by amending certain aspects of the IT Rules—especially those related to procedural standards and the distribution of authority mandated by the Rules.

Sri Lanka, as a postconflict country from the Global South, has experienced the proliferation of hate content over the Internet, particularly after incidents such as the mob violence (2018) and the Easter Sunday attacks (2019). In response to these challenges, Sri Lanka implemented Internet shutdowns as existing legal frameworks proved ineffective and were criticized as heavy-handed measures against free speech online. Specifically, the study examines the Online Safety Act (OSA) of Sri Lanka, passed in January 2024, with the objective of regulating content over the Internet, particularly on social media platforms (SMPs). This study attempts to discern the pros and cons of the OSA and its impacts on free speech in the digital era, from a fragile democratic jurisprudence. Identifying the key challenges associated with the Act, the chapter concludes with suggestions on how to rectify these issues by adopting international standards and holding platforms accountable.