Can the Government ban social networks’ users criticism?

In the United States, a Supreme Court judge equates platforms with collective services to express an opinion on online censorship. More rights for users or a deresponsibility of social networks?  by Andrea Monti – Initially published in Italian by Wired.it

Social networking and instant messaging platforms are increasingly blocking or deleting accounts of users deemed responsible —for the most varied reasons— for the infringement of the service’s condition. This fate has also befallen political and governmental figures, and the most illustrious of whom is undoubtedly former US President Donald Trump. As a result, the question has been raised in many quarters as to whether the ‘mere’ application of contractual terms could restrict the constitutionally guaranteed right to freedom of expression and the exercise of political rights.

There is, however, another issue that has not received as much attention: can someone who publishes criticism of a government official on the latter’s social account be blocked? In other words, if an official exposes himself through a private service, does he or she have the right to behave like a typical user and ‘ban’ his or her critics? The issue goes beyond the United States because, in many countries including Italy, politicians, MPs and government representatives make extensive use of social networks, not always distinguishing between personal and institutional use.

The certiorari in the case of Knight First Amendment Institute vs Donald Trump

An indirect answer to these questions comes from the United States, with a Supreme Court ruling on 5 April 2021. The case, which went to the highest level of justice, was brought by the Knight First Amendment Institute of Columbia University against Donald Trump in his capacity as acting president.

The claim — which is not new and has already been recognised as well-founded by other judgments—  was that he had unlawfully blocked users who criticised him on his private Twitter profile.

Due to the change of leadership at the White House and the closure of Donald Trump’s Twitter account, the Court declared the matter to be dismissed. Consequently, it did not enter into the merits of the certiorari (the request for the issuance of a principle of law binding on lower courts) filed by the former president, that asked the Court to tell

Whether the First Amendment deprives a government official of the right to control his personal Twitter account by blocking those of third parties if he also uses that account to announce official actions and public policy choices.

The Supreme Court’s ruling was also an opportunity to analyse the role and powers acquired by US multinationals, which have de facto become the controllers of interactive electronic communication.

Does the right to ban also apply to public institutions?

In 2019 American courts already ruled that a government official does not have the power to ban a user from criticising him on his private profile (in the sense of a profile not used in an official role).

It is necessary, however, to make some further considerations on this subject. As a private citizen, in no way could the right to free speech force somebody to interact with people with whom he disagrees. It is precisely in the name of this right that one can decide with whom one wants to share his personal information. If despite its nature, a private profile were considered to be subjected (subjected, not protected) to the obligation to enforce free speech, each citizen would lose the right to decide with whom he or she wants to enter in touch.

By contrast, it is clear that if we are talking about an official, civil service-owned account, the problem does not arise: preventing a citizen from criticising the executive or parliament is simply unacceptable. Politicians, MPs and civil service members cannot restrict the right to criticise their actions lest by invoking the ‘personal’ nature of a social profile. Thus, in the Trump case, it is irrelevant that the Twitter account was not that of the White House . When he used it to disseminate political messages as the US President, he was subject to public scrutiny and criticism. In principle, therefore, while citizen Trump had the right to block users who commented on matters unrelated to his official role, President Trump could not refuse to confront those who criticised him.

Power and responsibility of digital platforms

The Supreme Court decision dismissing the case also carries additional reasoning —a concurring opinion— drafted by Justice Thomas, who took the opportunity to analyse the roles and responsibilities of digital platforms more extensively.

The judge’s thesis is that to limit the enormous power acquired by digital platforms, they should be equated with common carriers, i.e. with those (public and private) entities that carry out activities of collective interest and therefore cannot discriminate against individuals. Italian law speaks of a ‘legal obligation to enter into agreements’ in the name of which, for example, a utility cannot refuse to supply electricity, a transport company cannot deny access to a passenger, and a telecommunications operator must activate a voice or data line if the contracting party offers to pay the cost of the service.

Treating platforms as if they were telephone operators would therefore imply recognising their ‘public service’ role. It would imply limiting discretion in applying the infamous terms&conditions, thus reducing the possibility of ‘silencing’ users. In the words of Justice Thomas

In many ways publicly available digital platforms are similar to traditional common carriers. Although their networks are digital rather than physical, the platforms are communication networks that ‘carry’ information from one user to another. A traditional telephone company has installed physical cables to create a network that connects people. Digital platforms manage an information infrastructure that can be controlled in much the same way.

Common carrier and network neutrality

Although intriguing at first glance, the US judge’s proposal is based on a technological misunderstanding that adversely affects its legal feasibility. Traditional carriers —those that transport goods and energy and electrical signals— are neutral to the objects they move from one point to another. When a telecommunications operator makes two people interact, it does not get involved in the content of the messages exchanged: users can arrange to go to dinner or carry out a robbery, but the operator does not get involved.

European rules (particularly Directive 31/00/EC) prohibit telecommunications operators from engaging in prior surveillance, and national constitutions protect the secrecy of communications. As long as telecommunications operators maintain their neutrality about the behaviour of users, they are not responsible for how the service is used.

The non-neutrality of platforms

Contrary to Justice Thomas’s proposal, the protection of constitutional rights in interactive electronic communication would instead require a clear distinction. At the regulatory level there should be a clear difference between providers of ‘passive’ services (access, transport, hosting, caching, messaging), which are indeed assimilated to the figure of the common carrier, and those who, instead, claim the right to decide independently how users should behave. These latter should not be allowed to invoke the ‘neutrality’ of the service as a defence for what their customers do.

Social networking platforms are not neutral, quite the contrary. They are known to offer users pre-selected content based on complex profiling and to decide on suspensions and permanent account closures or targeted removals of specific content without any apparent consistency. Accordingly, ‘platforms’ do not fall into the category of common carriers. They are and remain private entities that do not provide services in the public interest and regulate their relations with their customers in an entirely autonomous manner.

How to limit the power of platforms?

It does not mean that platforms are free to make untrammelled choices that affect fundamental  rights. No power in a democratic country can be exercised absolutely. The application of contractual clauses, in other words, cannot be based on the arbitrariness of one party (especially if it is the stronger one) but must always respect the duty of good faith (which in Italy is a legal obligation set out in the Civil Code).

Therefore, there is no need to attribute digital platforms the role of a common carrier or equate them with telecommunication operators and internet providers to protect fundamental rights. On the contrary, the opposite is true: the more platforms operate based on autonomous choices, the more they can be called to account for their decisions.

The issue, then, becomes that of the practical possibility for citizens to challenge the decisions that platforms take on content removal or account closure. Here is where the real problem emerges: the time and cost of legal action prevent most users from asserting their rights before a judge. On the other hand, digital platforms’ ‘private courts’ do not allow for a real independent verification of how the platforms themselves have exercised their powers.

From a European perspective, a solution would require (as the European Digital Service Act is supposed to do) that operating in the European Union, requires digital platforms to appoint a legal representative based in a Member State.

It would also be necessary to establish fast procedures to apply decisions taken by judicial and administrative authorities to digital platforms.

Finally, but perhaps most importantly, it would be essential to clearly distinguish digital platforms from ‘passive’ electronic communication service providers.

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