The position of the Warsaw Enterprise Institute on the protection of freedom of speech online

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The government-pushed bill on the protection of freedom of speech on social networking sites will not protect freedom of speech. The establishment of the Freedom of Speech Council will contribute to the politicization of this issue. Composed of officials and representatives of professional councils, it will become a space for the realization of interests of particular groups. The Warsaw Enterprise Institute is of the opinion that online content should be regulated based on a clear definition of the entity responsible for its publication, and at the same time the online platforms themselves should create clear, transparent regulations that leave no doubts as to what can and cannot be posted on them.

The ruling camp of the United Right has decided to accelerate the procedure of the draft law on the protection of freedom of speech on social networking sites presented in 2021. The law provides for the creation of a special Freedom of Speech Council, which is to consider user complaints in cases where their content has been censored by these websites. The websites have 48 hours to consider users’ complaints, and after that time users can submit complaints to the Council. The Council, on the other hand, may impose a fine on websites from 50,000. PLN up to PLN 50 million.

Freedom of speech is one of the paramount values in a democracy. Its defense is part of the mission of the Warsaw Enterprise Institute. However, the proposed bill does not only differ from the essence of personal freedoms, but also with the role of the state in a democratic system in the protection of freedom of speech. The proper task of the state is to guarantee clear and transparent rules for its implementation for everyone, regardless of their affiliation and worldview. We should be particularly concerned about the attempt to take on the role of an active intermediary in the relationship between the Internet entrepreneur and the user. Just as the removal of the Confederation profile from Facebook is an outrageous example, it would be even more disturbing to have top-down state control over which content should work online and which should not. This would lead to rationing of freedom of speech.

Meanwhile, in the law, a body that would in practice do just that – the Freedom of Speech Council. According to the information posted on government websites, candidates for Council experts “will be able to reprot, inter alia, entities such as: the Supreme Medical Chamber, the Supreme Pharmaceutical Chamber, the Polish Financial Supervision Authority, the Ombudsman, the Ombudsman for Children, the Ombudsman for Patients and the President of the Office of Competition and Consumer Protection”. The problem is that professional councils represent group interests, not citizens, and the bureaucratic caste tends to be over-zealous. For the first reason, the Council could only positively consider complaints targeting narrow interest groups, while at the same time – due to the second factor – being excessively strict in imposing penalties. The defense of freedom of speech would be treated selectively, and companies operating on the Internet, as exposed to sudden and solid punishment, would be less eager to direct their offer to Polish recipients. We should remember that although it is social networking sites that constitute a pretext for the legislator to take up the subject, regulated Internet content is a broader concept, covering practically everything that is published on the web. So everything will be (potentially) subject to verification of the Freedom of Speech Council.

Does this mean that moderating web content should not be subject to any rules other than those formulated by platforms?

The owner of a given platform has the option of developing their own regulations regarding acceptable content. Such freedom guarantees quick, algorithm-based removal of content that is illegal or shows extreme violence to the wrong audience. For example, no one wants children to be able to watch a crime broadcast live by a criminal. At the same time, and very importantly, the regulations of such websites should be unambiguous and clear – and this transparency should be guarded by the law – so that no user could be surprised by the moderation of their publication.

The current law of the European Union imposes the obligation to moderate content on Internet companies, but the rules of this moderation remain vague and unspecified, and this only increases the chaos on the Internet and leads to increasing socio-political tensions. Under the influence of political pressure groups, portals and networks often remove content that is not so much offensive as contrary to the ideological interpretation of a given environment. Here, the role of the state should be to demand a clear interpretation and regulations defining “obscene” content, and not forcing deviations from already vague regulations. Cases such as the removal of the Confederation profile from Facebook show that in the current situation, Internet companies feel obliged to even uphold the rightness of the content published by users. This leads to the forcing of only the right worldview, which is contrary to the assumptions of the protection of freedom of speech.

These issues require serious thought, so that when fighting for freedom, you don’t throw your baby out with the bathwater, paralyzing the development of Internet companies. The Warsaw Enterprise Institute emphasizes that in practice, the way to ensure freedom on the Internet is to treat all entities operating in it in the same way. If we want pluralism, we should take care of online competition and the existence of as many players as possible, and we should also avoid creating new regulations. Attempts to regulate the functioning of Internet companies in detail would make the biggest players parastatal monopolies. Nobody remembers today about Myspace, which was supposed to monopolize the social media market – precisely because politicians did not start regulating it.

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