Freedom of Expression and Social Media

Dear Colleagues,

Social media are usually defined as interactive technologies that facilitate the creation and sharing of information, ideas, and other forms of expression through virtual communities and networks. Supported on web 2.0 internet-based applications, they mainly include user-generated content and are dialogic (not monologic as traditional media). The five most popular social networking services, as of January 2022, were Facebook, YouTube, WhatsApp, Instagram, and WeChat (Wikipedia: “Social Media”).

Freedom of speech is commonly understood as the right to express information, ideas, and opinions free of government restrictions based on content (Britannica). However, this right to speech or the absence of it is not absolute in any legal order. Its most common limitations relate to (more or less) extreme forms of hate speech, obscenity, misinformation, and harassment. The right to voice one’s opinion without fear of government prosecution is preserved in the United Nations Declaration of Human Rights and is recognized by the laws of most nations, albeit it varies strongly from one nation to another.

Social media have enacted policies and guidelines to establish the limits of the content generated by their users. As a matter of fact, one of the most relevant new issues on freedom of speech is how far can the media set the boundaries of expression and self-expression created by their billions of users. As a distinctive example, YouTube, an online video-sharing and social media platform owned by Google, has more than 2.5 billion monthly users. YouTube’s Policies and Community Guidelines cover (a) Spam & Deceptive Practices, (b) Sensitive Content, (c) Violent or Dangerous Content, (d) Regulated Goods, (e) Misinformation, and (f) Educational, Documentary, Scientific, and Artistic (EDSA) Content. Under (b), the “Thumbnails Policy” means that users “cannot post a thumbnail or other image if it shows pornographic imagery sexual acts, nudity, unwanted sexualization, violent image that intends to shock or disgust, graphic or disturbing imagery with blood or gore, vulgar or lewd language, a thumbnail that misleads viewers to think they’re about to view something that’s not in the video”, and other similar posts. Certainly, users affected by the enforcement of those policies and guidelines retain their rights to complain before relevant jurisdiction.

To date, one of the most important U.S. cases relating to the complaints of individuals against social media is Reynaldo Gonzalez et al. v. Google LLC (598 U.S. ___ (2023)), which dealt with the question of whether recommender systems were covered by liability exemptions under the Communications Act, in dealing with terrorism-related content posted by users and hosted by their servers. The Court ruled unanimously that the charges against the social media companies were not permissible under antiterrorism law.

The mentioned developments are only illustrative, but clearly show how the relationship between social media and freedom of speech is conforming a new legal field, and more specifically, how the social media themselves are generating a substantial body of quasi regulations on freedom of speech.

Prof. Dr. Pablo Salvador-Coderch
Guest Editor

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• social media quasi regulations
• freedom of speech
• policies and guidelines