When “don’t be evil” becomes exceptionally difficult
5:52pm | 14 September 2012 | by Jochai Ben-Avie, English
Google has long been recognized as a company that protects freedom of expression, often coming to the defense of content that is widely seen as distasteful but is nonetheless protected speech (Full disclosure: Google has been a long time supporter of Access and its activities, and contributes to our overall budget). With its impressive global reach, the company, which bought YouTube in 2006, frequently finds itself having to balance universal human rights on one hand and the demands, local laws, and customs of individual nations on the other, almost always siding with preserving rather than removing speech. In the last few days, however, Google may have failed to live up to its famed “Don't be Evil” philosophy.
On 13 September it was reported that YouTube had blocked access to the video, “The Innocence of Muslims,” in Egypt and Libya. The block came after demonstrators protesting against the film, which has been accused of "insulting Islam," breached US diplomatic compounds in Cairo and Benghazi, resulting in the death of four Americans, including the US Ambassador to Libya on 11 September. Over the following three days, protests have continued to spread across the Muslim world, turning violent at times, and resulting in damage to the US Embassies in Tunisia and Yemen, and the German Embassy in Sudan.
Google has admitted that the ‘Innocence of Muslims’ fails to meet the company’s own test for “hate speech,” one of the content categories that violate its community guidelines and would make the video eligible for removal. The video would also be eligible for takedown if it violates Google’s Terms of Service, or if it were the subject of a court order or a properly scoped lawful government request. The film does not violate the company’s Terms of Service and as of writing, Google had not demonstrated that it was responding to a legal order. Rather, the company defended its decision on the grounds of “exceptional circumstances,” in direct response to the ongoing lethal protests.
Google doesn’t currently have an error message that reads “This content is not available in your country due to intense political pressure. Sorry about that.” That’s a good thing--it’s because these events probably don’t occur very often. However, Google’s message to users trying to access the video--at least in Egypt--is misleading and inaccurate. Access has acquired a screenshot of what Egyptian users are seeing when they try to access the video, which states that the clip was removed due to a “legal complaint.” At the time of writing, no known formal legal complaint has been filed with Google from the Egyptian government.
screenshot courtesy of Twitter user @moftasa
In its Transparency Report FAQ on removal requests by governments, Google is emphatic about due process, so their actions in this case are particularly surprising. Google says requests may be denied if they involve “allegations of defamation through informal letters from government agencies.” The company prefers to “rely on courts to decide if a statement is defamatory.” Given that Google is also known for its clear and transparent justifications for takedowns, using the vague excuse of a “legal complaint” evokes uncomfortable parallels to Tunisia’s old “Ammar404” censorship excuse--a shorthand for the inaccurate and misleading error pages shown to users trying to access content censored under the Ben Ali regime.
Historically, Google has resisted efforts to take down content that does not violate its Community Guidelines, often insisting on a properly scoped official directive or a court order, before taking action. In this case, however, Google seems to have acted unilaterally. As the President of Access’ Board of Directors and the former Director of Public Policy at Google, Andrew McLaughlin, told NPR this morning, “‘If Google is being perceived to be taking these videos down because of the threat of violence,’ it could create more problems. This is the concept of the heckler's veto— the ‘idea that if you show weakness in your devotion to free speech, then all that somebody has to do is threaten to riot in order to get you to take the speech down.’”
There are several possible justifications for YouTube’s action--however, all of them are inadequate.
It is important to note that Google is a privately owned and directed corporation, which answers to shareholders and its Board. Although much--even the majority--of our speech takes place online, Google is not a public forum in the legal sense. Though it is regulated by various government entities, Google is not required to allow the free expression we expect at libraries, in parks, and through the mail. Google does not appear to be breaking any U.S. law or violating its corporate charter by taking down the video.
Wishing to remain in certain markets -- likely a priority for its business interests -- Google might rather play nice and remove offending content than have its sites blocked over the incident, as Afghanistan's government has done (blocking not just YouTube, but also Google News, Gmail, and Chrome). However blocking content in an ad hoc way--that is in conflict with its own corporate policy--will only embolden governments to request more takedowns, and leave Google few excuses to demur in the future. Moreover, using its power to unilaterally censor content is inconsistent with the company’s obligations under the UN Guiding Principles on Business and Human Rights, which require companies to respect human rights and remedy abuses.
In fact, restricting speech is a frequent topic in international legal bodies: Article 19 of the International Covenant on Civil and Political Rights (ICCPR) protects the freedoms of opinion and expression. Although Article 19 does allow for certain legitimate restrictions on the right to freedom of expression, including protecting public order and national security, the UN Human Rights Committee has laid out a strict test for when these restrictions are applicable in its latest official interpretation (General Comment 34). The case for censoring ‘The Innocence of Muslims’ does not meet this standard. Indeed, restrictions to protect morals and public order must be based on existing law, but blasphemy laws that only protect or favor one religion over another are not valid under Article 19. The means of restricting expression must be necessary and proportionate, and the government must establish a direct and immediate connection between the expression and the threat to order or security. These terms are strictly construed.
The UN Human Rights Council’s resolution on hate speech (Res. 16/18) encouraged states to “[speak] out against intolerance, including advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence” and adopt “measures to criminalize incitement to imminent violence based on religion or belief.” The video, the White House and Google could argue, constitutes a modern form of incitement to imminent violence. However, incitement is for governments to prove, not corporations. Moreover, authorities would need to prove imminence or immediacy, and given that the video was released months ago, its release is likely too attenuated from the violence, even if the reactions were expected and predictable.
The line between public and private entities--governments responsible to their citizens, and corporations to their owners, in the classic sense--is blurred by the existence of the massive, multinational corporation. This particular incident raises important questions about the implications of Google as a literal “gatekeeper of the world’s information.” While the company has made strides in transparency and the protection of free speech in its policies and practices, we are acutely reminded of the ability of a single corporation to control how and what kind of information we are “granted” access to. Google has prided itself upon its mantra of "don't be evil,” even refusing to operate in some countries because they refused to bow to requests for censorship.
By making a decision that was not based on its own policies set forth in its Terms of Service--or compelled by the rule of law--the company has set a very dangerous precedent.
When companies like Google are perceived by governments and individuals as “gateways” to information, they become subject to pressure and requests to quell dangerous, unwanted, or inappropriate speech. However, these companies must uphold the rule of law and respect internationally established human rights lest they become instruments of censorship and oppression. In the end, while the company is responsible to its shareholders, they are also accountable to the users of their products and services. As people increasingly rely upon these online services for information, it is critical that companies of all shapes and sizes, but particularly for those with the global reach such as Google, uphold their duty to respect internationally established human rights, such as freedom of expression and access to information.