By: Anjoly Ibrahim
International human rights law, through regional and international treaties, prohibits hate speech. For example, the International Covenant on Civil and Political Rights (ICCPR) Article 20(2) states that “any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence shall be prohibited by law.”[1] One-hundred and seventy-three countries are parties to the ICCPR[2] and international human rights law generally only implicates states, meaning corporations are not held to the same standards. The ICCPR only compels “governments to take . . . measures in order to protect the rights enshrined in the treaty and to provide an effective remedy.”[3]
The United States is a party to the ICCPR; however, it does not have a hate speech law per se as essentially all speech is protected under the First Amendment.[4] United States law also provides that social media platforms are not liable for user-generated content, which “reduce[s] incentives for platforms to police hateful and other extreme or offensive content.”[5] These laws essentially create a safe harbor for hate groups to expound their rhetoric on social media platforms, most of which are based in the United States.
Facebook is a social media platform which has been used for just these purposes. For example, Facebook has been used by military personnel and others in Burma to espouse hatred against Muslims, and “turn[] the social network into a tool for ethnic cleansing.”[6] In Burma, Facebook is believed to be the entire internet, making any “news” found on Facebook believable to millions.[7] This rhetoric and its accompanying violence has forced more than one million people to flee their homes,[8] and over 24,000 deaths.[9] United Nations investigators blamed Facebook for leading the genocide by spreading hate speech.[10] This and other backlash has led Facebook to institute reforms in its hate speech filters and language preferences.[11] However, this has not been enough.
There have been many other instances of hate speech on Facebook, including in Sri Lanka,[12] the Assam region in India,[13] and the United States.[14] Facebook has come under fire by civil rights groups, personalities, and the European Commission for its lax hate speech and disinformation laws.[15] The European Court of Human Rights has also ruled that individual countries can order Facebook to take down posts worldwide that are defamatory or otherwise illegal.[16] Which is what Germany and Great Britain attempted to institute by implementing and debating laws restricting hate speech on social media platforms.[17]
Although Facebook has been revitalizing its hate speech filters and making hate speech denunciation a priority, it is not enough. The United States must find a way to limit the hate speech allowed on its social media networks, while allowing ample space for free speech, to comply with both the Constitution and international law.
[1] International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171, Can TS 1976 No 47 (entered into force 23 March 1976) [ICCPR].
[2] Chapter IV Human Rights: 4. International Covenant on Civil and Political Rights, United Nations Depository: Status of Treaties, available at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en
[3] FAQ: The Covenant on Civil and Political Rights (ICCPR), ACLU available at https://www.aclu.org/other/faq-covenant-civil-political-rights-iccpr
[4] Supreme Court jurisprudence has continuously said that the First Amendment’s Free Speech clause protects almost all speech. See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Beauharnais v. Illinois, 343 U.S. 250 (1952); Brandenburg v. Ohio, 395 U.S. 444 (1969); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992); Virginia v. Black, 538 U.S. 343 (2003); Snyder v. Phelps, 562 U.S. 443 (2011); Matal v. Tam, 137 S. Ct. 1744 (2017).
[5] Jonathan Peters, How the law protects hate speech on social media, Columbia Journalism Review (Nov. 2, 2018) available at https://www.cjr.org/analysis/gab-hate-speech.php
[6] Paul Mozur, A Genocide Incited on Facebook, with Posts from Myanmar’s Military, New York Times, Oct. 15, 2018 available at https://www.nytimes.com/2018/10/15/technology/myanmar-facebook-genocide.html
[7] Olivia Solon, Facebook struggling to end gate speech in Myanmar, investigation finds, The Guardian, Aug, 15, 2018 available at https://www.theguardian.com/technology/2018/aug/15/facebook-myanmar-rohingya-hate-speech-investigation
[8] Euan McKirdy, Facebook: We didn’t do enough to prevent Myanmar violence, CNN Business (Nov. 6, 2018) available at https://www.cnn.com/2018/11/06/tech/facebook-myanmar-report/index.html; Myanmar: Events of 2018, Human Rights Watch available at https://www.hrw.org/world-report/2019/country-chapters/burma
[9] Former UN chief says Bangladesh cannot continue hosting Rohingya, Al Jazeera, July 10, 2019 available at https://www.aljazeera.com/news/2019/07/chief-bangladesh-continue-hosting-rohingya-190710191318011.html
[10] Myanmar: UN blames Facebook for spreading hatred of Rohingya, Reuters, Mar. 12, 2018 available at https://www.theguardian.com/technology/2018/mar/13/myanmar-un-blames-facebook-for-spreading-hatred-of-rohingya
[11] McKirdy supra note 8
[12] Amalini de Sayrah, Facebook helped foment anti-Muslim violence in Sri Lanka. What now?, The Guardian, May 5, 2018 available at https://www.theguardian.com/commentisfree/2018/may/05/facebook-anti-muslim-violence-sri-lanka
[13] Billy Perrigo, Facebook Says It’s Removing More Hate Speech Than Ever Before. But There’s a Catch, Time (Nov. 26, 2019 available at https://time.com/5739688/facebook-hate-speech-languages/
[14] Ariana Tobin, Civil Rights Groups Have Been Warning Facebook About Hate Speech in Secret Groups for Years, ProPublica (Jul. 2, 2019) available at https://www.propublica.org/article/civil-rights-groups-have-been-warning-facebook-about-hate-speech-in-secret-groups-for-years
[15] See Kate Shepard, ‘Your Product is defective’: Sacha Baron Cohen slams Facebook for allowing hate speech, The Washington Post (Nov. 22, 2019) available at https://www.washingtonpost.com/nation/2019/11/22/sacha-baron-cohen-slams-facebook-zuckerberg-allowing-hate-speech/; Tobin supra note 14; Daniel Boffey, EU disputes Facebook’s claims of progress against fake accounts, The Guardian, Oct. 29, 2019 available at https://www.theguardian.com/world/2019/oct/29/europe-accuses-facebook-of-being-slow-to-remove-fake-accounts
[16] Adam Satariano, Facebook Can Be Forced to Delete Content Worldwide, E.U.’s Top Court Rules, New York Times, Oct. 3, 2019 available at https://www.nytimes.com/2019/10/03/technology/facebook-europe.html
[17] Janosch Delcker, Germany fines Facebook €2M for violating hate speech law, Politico, Jul. 2, 2019 available at https://www.politico.eu/article/germany-fines-facebook-e2-million-for-violating-hate-speech-law/; Emma Woolacott, UK Proposes Sweeing New Social Media Laws, Forbes, Apr. 8, 2019 available at https://www.forbes.com/sites/emmawoollacott/2019/04/08/uk-proposes-sweeping-new-social-media-laws/#1765e73a4944
