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pandemic-speech.html.pm
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pandemic-speech.html.pm
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#lang pollen
◊define-meta[page-title]{Pandemic Speech}
◊define-meta[short-title]{Pandemic Speech}
◊define-meta[original-date]{2021-01-29}
◊define-meta[snippet]{How has social media responded to misinformation during the pandemic? And could the government force them to?}
◊declare-work[#:id "Charter" #:type "custom" #:custom-format
"*Canadian Charter of Rights and Freedoms*[[pinpoint]], Part I of the
*Constitution Act, 1982*, being Schedule B to the *Canada Act 1982*
(UK), 1982, c 11" #:short-form "*Charter*"]
◊declare-work[#:id "Porter" #:type "magazine/news" #:author "Tom
Porter" #:publication "Business Insider" #:title "Twitter Deleted a
Tweet by Rudy Giuliani for Spreading Coronavirus Misinformation"
#:date "29 March 2020"]
◊declare-work[#:id "Helderman" #:type "magazine/news" #:author-given
"Rosalind S" #:author-family "Helderman" #:author2-given "Josh"
#:author2-family "Dawsey" #:author3-given "Jon" #:author3-family
"Swaine" #:title "Giuliani, a Familiar Voice in Trump's Ear, Promotes
Experimental Coronavirus Treatments" #:publisher "Washington Post"
#:date "5 April 2020"]
◊declare-work[#:id "Lazer" #:type "article" #:author-given "David MJ"
#:author-family "Lazer" #:etal? "yes" #:title "The Science of Fake
News" #:journal "Science" #:volume "359" #:issue "6380" #:first-page
"1094" #:date "9 March 2018"]
◊declare-work[#:id "Constine" #:type "magazine/news" #:author "Josh
Constine" #:title "Facebook Deletes Brazil President's Coronavirus
Misinfo Post" #:publication "TechCrunch" #:date "30 March 2020"
#:short-form "Constine, “Facebook Deletes Brazil President's
Coronavirus Misinfo Post”"]
◊declare-work[#:id "Constine2" #:type "magazine/news" #:author "Josh
Constine" #:title "Facebook Now Flags and Down-Ranks Fake News with
Help from Outside Fact Checkers" #:publication "TechCrunch" #:date "15
December 2016" #:short-form "Constine, “Facebook Now Flags and
Down-Ranks Fake News...”"]
◊declare-work[#:id "Harper" #:type "legal-case" #:title "Harper v
Canada (Attorney General)" #:citation "2004 SCC 33" #:short-form
"*Harper*"]
◊declare-work[#:id "Kendi" #:type "magazine/news" #:title "What the
Racial Data Show" #:author-given "Ibram X" #:author-family "Kendi"
#:publication "The Atlantic" #:date "6 April 2020"]
◊declare-work[#:id "Serhan" #:type "magazine/news" #:title "The Case
Against Waging 'war' on the Coronavirus" #:author "Yasmeen Serhan"
#:date "31 March 2020" #:publication "The Atlantic"]
◊declare-work[#:id "Little Sisters" #:type "legal-case" #:title
"Little Sisters Book and Art Emporium v Canada (Minister of Justice)"
#:citation "2000 SCC 69" #:short-form "*Little Sisters*"]
◊declare-work[#:id "Wagner1" #:type "magazine/news" #:author "Kurt
Wagner" #:title "Facebook, Twitter, Youtube Remove Posts from
Bolsonaro" #:publication "Bloomberg" #:date "30 March 2020"
#:short-form "Wagner, “Facebook, Twitter, Youtube Remove Posts...”"]
◊declare-work[#:id "CDC-Masks" #:type "magazine/news"
#:author-institutional "Centers for Disease Control and Prevention"
#:title "Recommendation Regarding the Use of Cloth Face Coverings,
Especially in Areas of Significant Community-Based Transmission"
#:date "3 April 2020" #:url
"https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/cloth-face-cover.html"
#:display-url? "yes" #:publication "CDC"]
◊declare-work[#:id "WHO-Masks" #:type "magazine/news"
#:author-institutional "World Health Organization" #:title
"Coronavirus disease (COVID-19) advice for the public: When and how to
use masks" #:url
"https://www.who.int/emergencies/diseases/novel-coronavirus-2019/advice-for-public/when-and-how-to-use-masks"
#:display-url? "yes" #:publication "WHO"]
◊declare-work[#:id "BC-Masks" #:type "magazine/news"
#:author-institutional "BC Centre for Disease Control" #:title "Masks"
#:url
"http://www.bccdc.ca/health-info/diseases-conditions/covid-19/prevention-risks/masks"
#:display-url? "yes" #:publication "BCCDC"]
◊declare-work[#:id "Guess" #:type "article" #:author-given "Andrew M"
#:author-family "Guess" #:etal? "yes" #:title "'Fake News' May Have
Limited Effects Beyond Increasing Beliefs in False Claims" #:journal
"Harvard Kennedy School Misinformation Review" #:year "2020" #:url
"https://doi.org/10.37016/mr-2020-004" #:display-url? "yes"]
◊declare-work[#:id "Wong" #:type "magazine/news" #:author-given "Julia
Carrie" #:author-family "Wong" #:title "Facebook Bans Some
Anti-Lockdown Protest Pages" #:publication "The Guardian" #:date "21
April 2020"]
◊declare-work[#:id "Statt" #:type "magazine/news" #:author "Nick
Statt" #:title "Major Tech Platforms Say They're 'Jointly Combating
Fraud and Misinformation About COVID-19" #:publication "The Verge"
#:date "16 March 2020"]
◊declare-work[#:id "Twitter COVID Policy" #:type "magazine/news"
#:author "Vijaya Gadde" #:author2-given "Matt" #:author2-family
"Derella" #:title "An Update on Our Continuity Strategy During
COVID-19" #:publication "Twitter" #:url
"https://blog.twitter.com/en_us/topics/company/2020/An-update-on-our-continuity-strategy-during-COVID-19.html"
#:display-url? "yes" #:date "16 March 2020"]
◊declare-work[#:id "Wagner2" #:type "magazine/news" #:author "Kurt
Wagner" #:title "Facebook Still Won't Fact-Check Political Ads Headed
into Election Season" #:publication "Time" #:date "9 January 2020"
#:short-form "Wagner, “Facebook Still Won't Fact-Check...”"]
◊declare-work[#:id "FB Health Claims" #:type "magazine/news" #:author
"Travis Yeh" #:title "Addressing Sensational Health Claims"
#:publication "Facebook" #:date "2 July 2019"]
◊declare-work[#:id "Perez" #:type "magazine/news" #:author "Sarah
Perez" #:title "Facebook News Feed Changes Downrank Misleading Health
Info and Dangerous 'cures'" #:publication "TechCrunch" #:date "2 July
2019"]
◊declare-work[#:id "DiResta" #:type "article" #:author "Renee DiResta"
#:title "Computational Propaganda: If You Make it Trend, You Make it
True" #:journal "The Yale Review" #:volume "106" #:issue "4"
#:first-page "12" #:year "2018"]
◊declare-work[#:id "FSP" #:type "magazine/news" #:author "Jennifer
Daskal" #:author2-given "Danielle Keats" #:author2-family "Citron"
#:author3-given "Nathaniel" #:author3-family "Gleicher" #:publication
"New America" #:title "Free Speech Project: Confronting Viral
Disinformation" #:date "26 March 2020" #:url
"https://youtu.be/a6hFwYxUSxM" #:display-url? "yes"]
◊declare-work[#:id "Klonick" #:type "article" #:author "Kate Klonick"
#:title "The New Governors: The People, Rules, and Processes Governing
Online Speech" #:journal "Harvard Law Review" #:volume "131"
#:first-page "1598" #:year "2018"]
◊declare-work[#:id "Pinterest" #:type "magazine/news" #:publication
"Pinterest" #:title "Health Misinformation" #:url
"https://help.pinterest.com/en/article/health-misinformation"
#:display-url? "yes"]
◊declare-work[#:id "Francois" #:type "magazine/news" #:publication
"Transatlantic High Level Working Group on Content Moderation Online
and Freedom of Expression" #:author "Camille François" #:title
"Actors, Behaviors, Content: A Disinformation ABC: Highlighting Three
Vectors of Viral Deception to Guide Industry & Regulatory Responses"
#:date "20 September 2019"]
◊declare-work[#:id "Kelion" #:type "magazine/news" #:author "Leo
Kelion" #:title "Coronavirus: YouTube Tightens Rules after David Icke
5G Interview" #:publication "BBC News" #:date "7 April 2020"]
◊declare-work[#:id "Torstar" #:type "legal-case" #:title "Grant v
Torstar Corp" #:citation "2009 SCC 61" #:short-form "*Grant v
Torstar*"]
◊declare-work[#:id "Gertz" #:type "legal-case-US" #:title "Gertz v
Robert Welch, Inc" #:citation "418 US 323" #:year "1974" #:short-form
"*Gertz*"]
◊declare-work[#:id "Milkovich" #:type "legal-case-US" #:title
"Milkovich v Lorain Journal Co" #:citation "497 US 1" #:year "1990"
#:short-form "*Milkovich*"]
◊declare-work[#:id "Jeong" #:type "magazine/news" #:title "The History
of Twitter's Rules" #:author "Sarah Jeong" #:publication "Vice" #:date
"14 January 2016"]
◊declare-work[#:id "FB: Lyons" #:type "magazine/news" #:title "Hard
Questions: What’s Facebook’s Strategy for Stopping False News?"
#:author "Tessa Lyons" #:publication "Facebook" #:date "23 May 2018"
#:url "https://about.fb.com/news/2018/05/hard-questions-false-news/"
#:display-url? "yes"]
◊declare-work[#:id "Corbin" #:type "article" #:title "The
Unconstitutionality of Government Propaganda" #:author-given "Caroline
Mala" #:author-family "Corbin" #:journal "Ohio St LJ" #:forthcoming
"2021"]
◊declare-work[#:id "Citron" #:type "article" #:title "Deep Fakes: A
Looming Challenge for Privacy, Democracy, and National Security"
#:author2-given "Danielle Keats" #:author2-family "Citron"
#:author-given "Robert" #:author-family "Chesney" #:journal "Cal L
Rev" #:volume "107" #:first-page "1753" #:year "2019"]
◊declare-work[#:id "Novella: What's the Harm" #:type "magazine/news"
#:title "What's the Harm?" #:author "Steven Novella" #:publisher
"Science-Based Medicine" #:date "13 October 2010" #:url
"https://sciencebasedmedicine.org/whats-the-harm/" #:display-url?
"yes"]
◊declare-work[#:id "Benecke" #:type "article" #:author "Olivia
Benecke" #:author2-given "Sarah Elizabeth" #:author2-family "DeYoung"
#:title "Anti-Vaccine Decision-Making and Measles Resurgence in the
United States" #:journal "Glob Pediatr Health" #:year "2019" #:volume
"6" #:first-page "1"]
◊declare-work[#:id "Verstraete" #:type "article" #:title "Ecosystem of
Distrust" #:author "Mark Verstraete" #:author2-given "Derek E"
#:author2-family "Bambauer" #:journal "First Amendment LR" #:volume
"16" #:first-page "129" #:year "2018"]
◊declare-work[#:id "Citron: Censorship Creep" #:type "article" #:title
"Extremist Speech, Compelled Conformity, and Censorship Creep"
#:author-given "Danielle Keats" #:author-family "Citron" #:journal
"Notre Dame L Rev" #:volume "93" #:issue "3" #:first-page "1035"
#:year "2018" #:short-form "Citron, “Extremist Speech...”"]
◊declare-work[#:id "Douglas: Conspiracy" #:type "article"
#:author-given "Karen M" #:author-family "Douglas" #:author2-given
"Robbie M" #:author2-family "Sutton" #:author3-given "Aleksandra"
#:author3-family "Cichocka" #:title "The Psychology of Conspiracy
Theories" #:journal "Current Directions Psych Sci" #:volume "26"
#:issue "6" #:year "2017" #:first-page "538"]
◊declare-work[#:id "Douglas: Chapter" #:type "chapter" #:author-given
"Karen M" #:author-family "Douglas" #:etal? "yes" #:title "The Social,
Political, Environmental, and Health-Related Consequences of
Conspiracy Theories" #:in-book "Bilewicz" #:first-page "183"]
◊declare-work[#:id "Bilewicz" #:type "book" #:author "Michal Bilewicz"
#:author2-given "Aleksandra" #:author2-family "Cichocka"
#:author3-given "Wiktor" #:author3-family "Soral" #:editors? "yes"
#:title "The Psychology of Conspiracy" #:year "2015" #:publisher
"Routledge"]
◊declare-work[#:id "Cunha" #:type "magazine/news" #:title "Beware of
Selling Yoga Pants on Facebook" #:author "Darlena Cunha" #:date "18
April 2018" #:publication "The Atlantic"]
◊declare-work[#:id "Twitter Deep Fake Policy" #:type "magazine/news"
#:title "Building Rules in Public: Our Approach to Synthetic &
Manipulated Media" #:author "Yoel Roth" #:author2-given "Ashita"
#:author2-family "Achuthan" #:publication "Twitter" #:date "4 February
2020" #:url
"https://blog.twitter.com/en_us/topics/company/2020/new-approach-to-synthetic-and-manipulated-media.html"
#:display-url? "yes"]
◊declare-work[#:id "YouTube: Elections" #:type "magazine/news" #:title
"How YouTube Supports Elections" #:author "Leslie Miller"
#:publication "YouTube" #:date "3 February 2020" #:url
"https://youtube.googleblog.com/2020/02/how-youtube-supports-elections.html"
#:display-url? "yes"]
◊declare-work[#:id "Eldridge" #:type "legal-case" #:title "Eldridge v
British Columbia (Attorney General)" #:citation "[1997] 3 SCR 624"
#:short-form "*Eldridge*"]
◊declare-work[#:id "Keller" #:type "magazine/news" #:author "Daphne
Keller" #:title "Facebook Restricts Speech by Popular Demand"
#:publication "The Atlantic" #:date "22 September 2019"]
◊declare-work[#:id "Newton" #:type "magazine/news" #:author "Casey
Newton" #:title "Why Facebook Doesn't Follow the First Amendment"
#:publication "The Verge" #:date "10 October 2019"]
◊declare-work[#:id "Kang" #:type "article" #:author-given "Pyeng Hwa"
#:author-family "Kang" #:title "Constitutional Treatment of Hate
Speech and Freedom of Expression: a Canada--US Perspective" #:journal
"Revue des droits de l'homme" #:volume "14" #:year "2018"]
◊declare-work[#:id "Alvarez" #:type "legal-case-US" #:title "United
States v Alvarez" #:citation "567 US 709" #:year "2012" #:short-form
"*Alvarez*"]
◊declare-work[#:id "Brandenburg" #:type "legal-case-US" #:title
"Brandenburg v Ohio" #:citation "395 US 444" #:year "1969"
#:short-form "*Brandenburg*"]
◊declare-work[#:id "Miller" #:type "legal-case-US" #:title "Miller v
California" #:citation "413 US 15" #:year "1973" #:short-form
"*Miller*"]
◊declare-work[#:id "NYT" #:type "legal-case-US" #:title "New York
Times Co v Sullivan" #:citation "376 US 254" #:year "1964"
#:short-form "*New York Times Co*"]
◊declare-work[#:id "Giboney" #:type "legal-case-US" #:title "Giboney v
Empire Storage & Ice Co" #:citation "336 US 490" #:year "1949"
#:short-form "*Giboney*"]
◊declare-work[#:id "Chaplinsky" #:type "legal-case-US" #:title
"Chaplinsky v New Hampshire" #:citation "315 US 568" #:year "1942"
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#:author "Katherine Clayton" #:etal? "yes" #:year "2019" #:journal
"Political Behaviour"]
◊declare-work[#:id "Persily" #:type "article" #:author
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"2017--2018" #:first-page "337"]
◊fig[#:src "assets/misinformation-warning.jpg" #:width "50%"]{An
example misinformation warning used by Twitter.}
◊abstract{
Social-media platforms have adopted an unprecedented approach to
misinformation relating to COVID-19: they are now willing to delete
content that is false. This article situates COVID-19 misinformation
in the spectrum of hate speech, misinformation, and disinformation. It
then explores the social-media platforms' approaches to policing
speech before and during the COVID-19 pandemic through the dual lenses
of the American First Amendment the Canadian
◊em{Charter}. Social-media platforms appear to be making their content
decisions under a framework more akin to that from Canada’s
◊em{Charter} than from the American First Amendment. Further, it is
possible, in admitedly unlikely circumstances, that Canada could
require social-media platforms to perform content-based deletion of
specific misinformation during a pandemic.
This article was prepared in April 2020 for my Communications Law
course at UBC's Peter A. Allard School of Law. I thank Professor
Festinger and my classmates for the valuable discussions about media
and communications. The article is already dated. When I wrote it,
@realdonaldtrump still had a Twitter account and Facebook's Oversight
Board was not yet operational. I am most skeptical of my Section 1
analysis at the end of the article, especially thinking about how
Facebook's Oversight Board recently applied International Human Rights
standards to overturn Facebook's deletion of COVID-19 misinformation.
}
◊heading{Introduction}
On 27 March 2020, Twitter deleted a tweet written by Rudy Giuliani
that contained a false claim that hydroxychloroquine was "100%
effective" at treating COVID-19.◊note{◊see["Porter"]
◊see-also["Helderman" #:parenthetical "reporting instead that Twitter
“locked Giuliani's account until he deleted [the tweet]”"]} On 30
March 2020, Facebook, Twitter, and Youtube deleted videos of the
Brazilian President, Jair Bolsonaro, that claimed "hydroxychloroquine
is working in all places."◊note{◊cite["Constine"]
◊see-also["Wagner1"]} These deletions reflect an unprecedented change in
the way major social networks treat misinformation.
In the early stages of the COVID-19 pandemic, Twitter, Facebook,
YouTube, Google, and others jointly committed to combat COVID-19
misinformation.◊note-see["Statt"] Twitter and Facebook broadened their
definitions of harm to include COVID-19 misinformation. For example,
Twitter now recognizes as harmful "content that goes directly against
guidance from authoritative sources of global and local public health
information."◊note-cite["Twitter COVID Policy" #:parenthetical
"updated 1 April 2020"] Facebook is deviating from its long-standing
practice of not fact-checking politicians.◊note{◊see["Wagner2"
#:parenthetical "in January, Facebook said they were “sticking with a
controversial policy that stipulates the company will not fact-check
posts from politicians”"]} These changes are a specific response to
COVID-19. These platforms have never before had a policy to delete
pseudoscientific medical misinformation (e.g. claims that homeopathy
or acupuncture are effective, or anti-vaccination propaganda). Only
recently, in late 2019, did Facebook begin downranking---not
deleting---content that contained exaggerated health claims
(e.g. “miracle cure[s]”) or that advertised a health
product.◊note{◊cite["FB Health Claims" #:terminal ";"]
◊see-also["Perez"]}
In this article, I situate COVID-19 misinformation within a spectrum of
hate speech, disinformation, and misinformation. I explain social
media platforms' approach to non-COVID-19 misinformation through a
model of self-governance that has until now appeared rooted in
American First Amendment values. However, the tactics that the
platforms have adopted with respect to COVID-19 misinformation reveal
that their approach to policing expression is actually more akin to
that found in Canada under ss. 1 and 2(b) of the ◊em{Charter of Rights
and Freedoms}.◊note{◊cite["Charter" #:pinpoint "ss 1, 2(b)"] Section
2(b) of the ◊em{Charter} establishes freedom of expression, "including
freedom of the press and other media of communication" as fundamental
freedoms. Section 1 of the ◊em{Charter} "guarantees the rights and
freedoms set out in [the ◊em{Charter}] subject only to such reasonable
limits prescribed by law as can be demonstrably justified in a free
and democratic society."} When deciding to adopt new policies in
response to COVID-19, the platforms are performing a balancing
exercise rather than adopting an absolutist approach to free
expression on their platforms.
I present the factors that the platforms are likely weighing during
this balancing exercise, drawing from the factors that are relevant to
a s. 1 analysis when the government infringes a person's right to free
expression in Canada. The risk of harm appears to play a prominent
role in the platforms' decision-making processes. Yet the risk of harm
is present in non-COVID-19 misinformation as well. I explore the
conception of harm that platforms might be adopting in their balancing
exercise that would explain their hands-off approach until now.
Having made the decision to police this misinformation, the platforms
are now faced with a task they have in the past claimed is
insurmountable: categorizing claims on their platform as true or
false---permissible or impermissible.◊note{◊see-eg["Newton"]} This
involves value-laden decisions about what entities to consider
authoritative, distinguishing claims of fact from opinion, and
assessing the risk of harm. I will present their approach to these
issues.
Last, I consider whether Canada could ◊em{require} platforms to police
COVID-19 misinformation or misinformation more broadly. While this
would almost certainly not be an option available to US legislators, I
conclude that Canada's free-expression jurisprudence leaves open the
possibility for Canadian legislators to require platforms to
intervene---to delete content---in times of discrete emergency.
◊heading{COVID-19 Misinformation}
I refer to the expression being blocked under these policies as
◊em{misinformation}. I adopt a definition of misinformation that
assumes only the falsehood of the statement. Misinformation is broader
than, but includes, ◊em{dis}information, which implies an intentional
effort to deceive. This is a commonly accepted distinction, adopted by
Renee DiResta and Facebook.◊note{◊see["DiResta" #:pinpoint "14"
#:terminal ";"] ◊see-also["FSP" #:pinpoint "04m:50s"]} Given how
difficult it is for a platform to know the intent of the speaker, they
are necessarily disregarding intent in their treatment of COVID-19
misinformation. Misinformation is also different from hate
speech. While hate speech can certainly ◊em{include}
misinformation,◊note-cite["Keegstra" #:parenthetical "“[t]here is very
little chance that statements intended to promote hatred against an
identifiable group are true”" #:pinpoint "763"] the reason platforms
target hate speech is not because it is false.◊note{◊see["Citron:
Addressing Cyber Harassment" #:pinpoint "61--62"] And regarding
political propaganda, another category of suspect speech, see
generally ◊cite["Corbin"]}
Platforms are categorizing COVID-19 misinformation based on its
falsehood. This is a ◊em{content}-based categorization and is a novel
aspect to the platforms' response to COVID-19
misinformation. Platforms have generally not deleted expression based
on its falsehood.◊note-see["Klonick" #:pinpoint "1660"] There are two
notable exceptions. Pinterest prohibits "promotion of false cures for
terminal or chronic illnesses and anti-vaccination
advice."◊note-cite["Pinterest"] And (only since February 2020) YouTube
prohibits a small category of political-process
misinformation.◊note-see["YouTube: Elections"] Platforms have instead
relied on proxy criteria (like the identity of the actor or presence
of deceptive behaviours) to delete likely
◊em{dis}information.◊note-see["Francois"] For example, Facebook has
had little issue removing posts attributed to "well-funded military
and intelligence apparatus" (e.g. Guccifer 2.0).◊note-cite["Francois"
#:pinpoint "3"] And Twitter deletes fake accounts and bots in order to
stamp out "faux-organic" content.◊note-cite["Ravel" #:pinpoint
"1271--72"]
What is new about the platforms' deletion of COVID-19 misinformation
is that they are distinguishing between true and false. Under these
new policies, it does not matter who makes the false claim; it does
not matter whether the claim is part of a deception campaign. Facebook
and Twitter have never before deleted information because it was false
(YouTube has, and only since February 2020).◊note-see["YouTube:
Elections"]
But in the context of a novel global pandemic, full of scientific
uncertainty, what does it mean for a claim to be false? Twitter has
said that it will "prioritiz[e] removing content when it has a clear
call to action that could directly pose a risk to people’s health or
well-being" but that it will not "limit good faith discussion or
expressing hope about ongoing studies related to potential medical
interventions that show promise."◊note-cite["Twitter COVID Policy"]
They will remove "[d]enial of established scientific facts about
transmission during the incubation period or transmission guidance
from global and local health authorities."◊note-cite["Twitter COVID
Policy"] Facebook will take down content that is "provably false",
that "has been flagged by a global health expert like the [World
Health Organization (WHO)]," and "could lead to imminent
harm."◊note-cite["FSP" #:pinpoint "08m:40s"] YouTube will delete "any
content that disputes the existence or transmission of Covid-19, as
described by the WHO and local health
authorities."◊note-cite["Kelion"] But “[f]or borderline content that
could misinform users in harmful ways,” they only reduce
recommendations of that content.◊note-cite["Kelion"]
In these policy statements we see the platforms adopting the
fact--opinion distinction familiar from defamation
law.◊note{◊see["Torstar" #:pinpoint "para 31" #:terminal ";"]
◊cite["Gertz" #:terminal ";"] ◊cite["Milkovich"]} These statements
also reveal the harm-based motivation for adopting this more proactive
approach to COVID-19 misinformation. Third, they have all identified
authoritative sources of the truth for the purpose of their policies.
◊heading{Non-COVID-19 Misinformation}
These policies are at odds with the platforms' traditional approach to
misinformation. While platforms have had policies against "gratuitous
violence" and pornography that is in-line with obscenity norms in
American media, they have not attempted to divide truth from fiction
or fair from unfair.◊note-see["Klonick" #:pinpoint "1626, 1660"]
Twitter took such a hands-off approach that it was called "the free
speech wing of the free speech party."◊note{◊see["Klonick" #:pinpoint
"1620--21"] ◊see-also["Jeong" #:parenthetical "presenting Twitter's
early rules: “we will not actively monitor and will not censor user
content, except in the limited circumstances below,” referring to
categories of “Impersonation, Privacy, Violence and Threats,
Copyright, Unlawful Use, Serial Accounts, Name Squatting,
Malware/Phishing, Spam, and Pornography”"]} Kate Klonick hypothesizes
that the "normative background" of the early in-house counsel at these
platforms was so infused with First Amendment doctrine that they
effectively imported it into Twitter, Facebook, and
Youtube.◊note-see["Klonick" #:pinpoint "1621"]
Where platforms ◊em{have} prohibited content (e.g. obscenity,
violence, hate speech), they have been motivated by corporate identity
and monetary interests.◊note-see["Klonick" #:pinpoint "1626--27"]
Misinformation has been policed only by proxy: by targeting bad actors
or bad behaviour.◊note-see["Francois"] But platforms have avoided
assuming a role as arbiters of truth. If a private individual says
something openly using their primary, personally-identified account,
no matter how false or harmful the information might have been, the
platforms have left it up. Only recently have the platforms started to
police misinformation ◊em{qua} misinformation and it has been with a
light touch.
What follows next is a summary of the (often recent) high-water mark
of each platform's treatment of non-COVID-19 misinformation.
◊sub-heading{Facebook}
"[F]alse news does not violate [Facebook's] Community
Standards."◊note-cite["FB: Lyons"] Unless it violates one of their
other content policies, Facebook will not take down
misinformation. Their approach to tackling misinformation (since
2016◊note-see["Constine2"]) has been to use fact-checkers who are
certified by the International Fact-Checking Network. When a
fact-checker judges content to be false, Facebook will downrank the
content so that many fewer people will see it, attach a warning label,
and include a link to corrective information.◊note{◊see["FB: Lyons"
#:terminal ";"] ◊cite["Constine2"] ◊see-generally["Clayton"]}
◊sub-heading{Twitter}
In February, 2020, Twitter announced a policy targeting manipulated
media◊note-see["Twitter Deep Fake Policy"] (e.g. ◊em{deep
fakes}◊note-see-generally["Citron"]). When such manipulated media
risks creating "serious harm," Twitter will delete it; otherwise,
Twitter will simply label it. While this can be construed as targeting
content,◊note-see["Francois" #:parenthetical "policing deep fakes is a
content-based distinction"] this is a special category of
misinformation. The medium has been manipulated or synthetically
generated. Of course there is an ◊em{implicit claim} that the person
depicted in the photo, video, or audio actually did what they have
been depicted doing (e.g. a video depicting a trustworthy person X
advocating dangerous behaviour Y). In this sense, manipulated media
makes a meta claim. Twitter's manipulated-media policy is the closest
that Twitter has come to deleting claims because they are
false. However, Twitter's policies would not result in deletion of a
text-based version of the same claim (e.g. a tweet saying that
"trustworthy person X advocated dangerous behaviour Y"). This reveals
that Twitter's manipulated-media policy requires more than mere
falsehood and harm in order to trigger deletion. Their policy toward
manipulated media is based on the ◊em{manner} in which the claim is
made and thus is more properly categorized as a ◊em{behaviour}-based
distinction.
◊sub-heading{YouTube}
In February, 2020, YouTube announced several categories of content
that it would remove: manipulated media that poses a "serious risk of
egregious harm," misinformation about the "voting or census process,"
and "false claims related to the technical eligibility requirements
for current political candidates."◊note-cite["YouTube: Elections"] The
manipulated-media category is much like that from Twitter's
policy. However, the latter two categories (political-process
misinformation) are rare examples where a platform has decided to
remove misinformation based purely on it being false. This is
low-hanging fruit, given that there is a clear ground truth about what
the voting and census processes involve and what the technical
eligibility requirements are.
◊sub-heading{Alternatives to deletion}
Among major social media platforms, YouTube's recent policy relating
to election or census misinformation is the only other example where
false claims would be removed because of their falsehood. The
platforms all otherwise resort to less intrusive alternatives:
downrank, flag or label, and promote more accurate
content.◊note-see["Persily" #:parenthetical "presents demotion,
disclosure, delay, dilution and diversion, deterrence, and digital
literacy as alternatives to deletion"]
◊heading{The harms of misinformation}
◊q{ Force, and fraud, are in war the two cardinal virtues. --- Thomas
Hobbes }
Misinformation causes both ◊em{societal} and ◊em{individual} harm. At
the societal level, misinformation can result in "distortion of
democratic discourse," "manipulation of elections," "erosion of trust
in significant public and private institutions," "enhancement and
exploitation of social divisions," and "threats to the
economy."◊note{◊cite["Citron" #:pinpoint "1777ff" #:parenthetical
"discussing deep fakes specifically, but these harms stem from
disinformation generally"]} Misinformation sows seeds of doubt,
mistrust, and a "cascade of cynicism" that spreads from particular
sources to media and experts in general.◊note-see["Verstraete"
#:parenthetical "presenting the doubt, mistrust, and “cascade of
cynicism” that spreads from particular sources to media and experts
generally"] Misinformation also creates direct harms to
individuals. At the low end, this might be misinformation as innocuous
as "keeping your cellphone charged at 100% will extend its battery
life." But it also includes much more consequential misinformation
that can cause people to waste time and money on medical treatments
that do nothing or even worsen a prognosis.◊note-cite["Novella: What's
the Harm"]
In this article, I present a hypothesis that the major social media
platforms are operating under a ◊em{Charter}-like approach to free
expression that balances free expression against these harms caused by
misinformation. COVID-19 misinformation apparently meets the
platforms' threshold for intervention. This raises the further
question: what other misinformation might also meet this threshold?
YouTube has already targeted a small category of democratic-process
misinformation.◊note{◊see["Miller" #:parenthetical "discussed above,
in the text accompanying note 36"]} Protecting the integrity of the
political process from the harms of misinformation has also been
recognized in Canada as a justification for infringing the right to
free expression.◊note-see["Harper" #:parenthetical "the Court allowed
a blackout period on election advertising in order to allow response
to “potentially misleading election advertising”"]
I've presented the general harms of misinformation above, but I
present next a small list of misinformation that is particularly and
demonstrably harmful in diverse ways.
Misleading health claims can give patients and families false hope,
they can lead patients to forego effective treatment or to undergo
interventions that carry risk with no benefit.◊note-see["Novella:
What's the Harm"] When the proper treatment has societal benefits
(vaccination, for example), following the misinformation leads to
societal harms.◊note-see["Benecke"]
Conspiracy theories are another category of misinformation. These take
advantage of a psychological need to explain, to control, and to feel
like you're on the "inside."◊note-see["Douglas: Conspiracy"]
Conspiracy theories certainly overlap with the category of misleading
health claims. Some anti-vaccination theories involve a claim that
vaccines are dangerous yet recommended ◊em{because} of "secret and
malevolent forces."◊note-cite["Douglas: Chapter" #:pinpoint "184"]
Another example of overlap is the conspiracy theory that HIV is not
the cause of AIDS.◊note-cite["Douglas: Chapter" #:pinpoint "188"] But
they also influence how people receive information about
socially-important issues like climate change.◊note-cite["Douglas:
Chapter" #:pinpoint "188"] And conspiracy theories are associated with
racist attitudes, although the direction of causation has not been
established.◊note-cite["Douglas: Chapter" #:pinpoint "188--89"]
Another kind of harmful misinformation may simply be fraud. This
includes financial hoaxsters, multi-level marketing
schemes,◊note-see["Cunha"] and even the peddling of "organized
pseudolegal commercial arguments" (freemen-on-the-land or
sovereign-citizen theories).◊note-cite["Meads"] This latter category
has "proven disruptive, inflict[s] unnecessary expenses on other
parties, and [is] ultimately harmful to the persons who appear in
court and attempt to invoke these vexatious
strategies."◊note-cite["Meads" #:pinpoint "para 71"]
Misinformation and its harm is as old as speech
itself,◊note-cite["Persily" #:pinpoint "4"] but online misinformation
has additional characteristics that increase the risk and extent of
that harm, including speed, virality, and
anonymity.◊note-see["Persily" #:pinpoint "5"] Platforms may very well
be able to decrease the impact of misinformation by targeting these
force multipliers rather than the misinformation directly.
◊heading{An emerging balance}
As non-government entities, social media platforms are not subject to
the constraints of the First Amendment or s. 2(b) of the
◊em{Charter}.◊note-see-generally["Eldridge"] They in fact ◊em{benefit}
from the right to free expression to secure their own freedom to
govern expression on their platforms as they see
fit.◊note{◊see["Keller" #:parenthetical "“private platforms aren’t
really the public square, and internet companies aren’t governments”"
#:terminal ";"] ◊cite["Newton" #:parenthetical "“most people want
[Facebook] to go much further than the First Amendment”" #:terminal
";"] ◊cite["Klonick" #:pinpoint "1626" #:parenthetical "“you get to
decide what the tone and tenor of your platform look[] like, and
that's a First Amendment right in and of itself”"]} But, it is still
revealing to examine what free-expression values are reflected in the
policies adopted by social media platforms.
The platforms' actions until now have appeared to reflect liberal
First Amendment values and a "reductionist" conception of
harm.◊note-cite["Kang" #:pinpoint "para 15"] Platforms' proactive
treatment of COVID-19 misinformation, in the absence of government
regulation or obvious market pressures, reveals that the First
Amendment isn't the whole story. There is a communitarian or
egalitarian aspect to their self-governance as well. Or if I am wrong
about the motivations, their actions today at least reveal that there
is space for such a communitarian or egalitarian aspect.
◊sub-heading{A First Amendment Perspective}
The US Supreme Court has interpreted the First Amendment to only allow
content-based restrictions within a narrow list of
traditionally-recognized categories: "incitement of imminent lawless
action," obscenity, defamation, child pornography, speech "integral to
criminal conduct," fighting words, fraud, true threats, and "speech
presenting some grave an imminent threat the government has the power
to prevent."◊note{◊cite["Alvarez" #:pinpoint "717" #:terminal ""],
citing ◊cite["Brandenburg" #:parenthetical "imminent lawless action"
#:terminal ";"] ◊cite["Miller" #:parenthetical "obscenity" #:terminal
";"] ◊cite["NYT" #:parenthetical "defamation" #:terminal ";"]
◊cite["Giboney" #:parenthetical "speech integral to criminal conduct"
#:terminal ";"] ◊cite["Chaplinsky" #:parenthetical "fighting words"
#:terminal ";"] ◊cite["Ferber" #:parenthetical "child pornography"
#:terminal ";"] ◊cite["VA Pharmacy" #:parenthetical "fraud" #:terminal
";"] ◊cite["Watts" #:parenthetical "true threats" #:terminal ";"] and
◊cite["Near" #:parenthetical "grave and imminent threat..."]} The
Court has explicitly noted that "absent from those few
categories... is any general exception to the First Amendment for
false statements"; "erroneous statement is inevitable in free
debate."◊note-cite["Alvarez" #:pinpoint "718"] The Court ◊em{has},
however, placed less value false statements, but always in the context
of some other "legally cognizable harm."◊note-cite["Alvarez"
#:pinpoint "718--719"] Where the Court has allowed a content-based
distinction that would treat false statements differently than true
statements, it has been in one of two contexts: commercial
speech◊note{The US Supreme Court initially held that advertising was
not protected by the First Amendment. ◊see["Valentine"]} or falsehood
plus harm. And for non-commercial false speech, a remedy is only
available to a person harmed after such harm has occurred: there are
no prior restraints on non-commercial false statements.
The United States Supreme Court has also "rejected as startling and
dangerous a free-floating test for First Amendment coverage based on
an ad hoc balancing of relative social costs and
benefits."◊note{◊cite["Alvarez" #:pinpoint "717" #:terminal " (cleaned
up)"], citing ◊cite["Stevens"]} Note that there is no analogue of
Section 1 of the ◊em{Charter} in the US Constitution. Thus, the entire
issue is generally framed in terms of First Amendment "coverage":
e.g. does the First Amendment cover obscenity? The Supreme Court of
Canada instead has given s. 2(b) of the ◊em{Charter} the broadest
possible conception, protecting any attempt to convey
meaning.◊note-see["Irwin Toy"] (This does, however, excludes violence
and threats of violence.◊note-see["Khawaja" #:pinpoint "para 17"])
Whether something like obscenity can be prohibited by the government
is framed in Canada as a question of whether the infringement of the
right to free expression can be justified under s. 1 of the
◊em{Charter}. This exercise is infused with a balancing of "social
costs"◊note-cite["Whatcott"] and benefits.◊note{◊see["Oakes"
#:terminal ";"] ◊cite["Dagenais" #:terminal ";"] ◊cite["RJR"
#:pinpoint "para 62" #:parenthetical "“[t]he s. 1 inquiry is an
unavoidably normative inquiry”"]}
Platforms have hewed closely to First Amendment ideals, although
straying slightly with respect to several categories of
content.◊note-see-eg["Facebook's Community Standards" #:parenthetical
"listing (among other things) violence and incitement, promotion of
crime, fraud, child nudity and sexual exploitation, harassment and
intimidation, obscenity as content that will be deleted"] These
departures are best explained as a response to foreign regulation and
market pressures rather than a reasoned balancing of harm and
expression: "It's no coincidence that YouTube, Facebook, Twitter, and
Microsoft, which earn substantial portions of their revenues in
Europe, apply European hate-speech standards globally—even in
countries where that speech is legal."◊note-cite["Keller"]
Until now though, platforms have resisted pressure to police
misinformation. Mark Zuckerberg has said:
◊q{ [M]isinformation, I think is really tricky... everyone would
basically agree that you don’t want the content that’s getting the
most distribution to be flagrant hoaxes that are tricking people. But
the other side... is that a lot of people express their life and their
experiences by telling stories, and sometimes the stories are true and
sometimes they’re not. And people use satire and they use fiction
... and the question is, how do you differentiate and draw the line
between satire or a fictional story? Where is the
line?◊note{◊cite["Newton"] This quote also reflects a vision of free
expression that is focused on individual liberty and "self-expressive
rights of the singular speaker." ◊cite["Syed" #:pinpoint "341"]}}
But wherever that line might be, COVID-19 misinformation is across
that line for these platforms. This reveals that platforms are
operating under a vision closer to that from Canada's ◊em{Charter}
than that from the First Amendment.
◊sub-heading{A ◊em{Charter} Perspective}
Some previous restrictions of misinformation by the platforms may
appear at first as an adoption of a ◊em{Charter} perspective, but
these previous restrictions have been consistent with the narrow
exceptions that the US Supreme Court has carved out from First
Amendment protection. For example, platforms have generally not
allowed misleading or deceptive advertisement.◊note-see-eg["Google
Misrepresentation"] This reflects a conception of free expression that
places less value on commercial or profit-motivated
speech.◊note{◊see-eg["Valentine" #:terminal ";"] ◊cite["VA Pharmacy"]
Profit-motivated speech also holds less value under a s. 1
justification in Canada. ◊see["Irwin Toy" #:parenthetical "“harm
engendered by tobacco and the profit motive underlying its promotion
place this form of expression as far from the 'core' of freedom of
expression values”"]}
But, the new policies of Twitter, Facebook, Google, and YouTube with
respect to COVID-19 misinformation amount to a prior restraint (within
each platform) on non-commercial misinformation, before any legally
cognizable harm has occurred. This is wholly inconsistent with a First
Amendment-inspired lens on the role of free expression. While prior
constraints are viewed with particular skepticism by Canadian
courts,◊note-see["Little Sisters"] they are not out of the question,
and courts will consider the balance of the "social costs and
benefits"◊note-cite["Stevens"] that US law avoids.
As presented above, COVID-19 is just the latest subject of
misinformation, yet platforms have adopted unusually proactive and
strict measures to delete it. When we look at the ◊em{social costs}
side of the ledger in Canadian jurisprudence, we find a plethora of
factors can explain the platforms' differential treatment of COVID-19
misinformation, particularly in the s. 1 analysis. To justify an
infringement of a ◊em{Charter} right, s. 1 requires the government to
identify a pressing and substantial objective and to demonstrate that
the means chosen to achieve that objective are proportional (further
requiring that the government demonstrate that the means are
rationally connected to the objective, that the means are minimally
impairing, and that the deleterious effects do not outweigh the
salutary effects of the measure).◊note{◊see["Oakes"]
◊see-also["Dagenais"]}
At the highest level, a s. 1 analysis of infringements of the right to
free expression adopts a "communitarian understanding of the
harms."◊note-see["Kang"] It matters that the harms may be suffered by
vulnerable groups.◊note-see["Irwin Toy" #:parenthetical "the *Consumer
Protection Act* regulated advertising that was directed at young
children"] Even the dissent in ◊em{Irwin Toy} (which would have struck
down a prohibition on advertising directed at children) said that
restrictions could be justified for the "protection of the
community."◊note-cite["Irwin Toy" #:pinpoint "1009"] A "social
nuisance" has been sufficient to justify a s. 2(b)
infringement.◊note-see["Prostitution reference" #:parenthetical "“the
public display of the sale of sex”"] The Court has approved of a
restriction on advertising that was "likely to create an erroneous
impression about the characteristics, health effects, or health hazard
[of tobacco]."◊note-cite["JTI" #:parenthetical "albeit, this was in
the context of commercial, profit-motivated speech"] "Avoidance of
harm to society" was an objective that justified criminal obscenity
law.◊note-cite["Butler"] "[C]ourts must determine as best they can
what the community would tolerate others being exposed to on the basis
of the degree of harm that may flow from such
exposure."◊note-cite["Butler"] To the extent that there is uncertainty
about the harmful effects of misinformation,◊note-see["Guess"] s. 1
jurisprudence has not demanded evidential certainty in order to
justify an infringement. The Court in ◊em{R. v. Butler} explicitly
relied on "inconclusive social science evidence."◊note-cite["Butler"]
The approach that platforms have taken to COVID-19 misinformation can
be explained through this s. 1 lens. Our collective response to
COVID-19 is rooted in a communitarian understanding of its harms. We
are not self-isolating because we may personally get sick; we are
self-isolating in order to deny the virus a vector for
transmission. This is why platforms are combatting misinformation that
would lead to people violating isolation guidelines. Facebook has even
gone so far to take down pages that organize protests that "defy
government's guidance on social distancing."◊note-cite["Wong"] It also
appears that these harms may be suffered more by vulnerable
groups.◊note-see["Kendi"] While there is disagreement and uncertainty
about fine details and forecasts, public health authorities are
largely in agreement about the big picture on COVID-19: it exists, it
is caused by a virus, it spreads through close human--human
interaction, and risk of spread is reduced maintaining physical
distance, avoiding touching one's face, washing one's hands, and
wearing a mask.◊note{◊see-eg["CDC-Masks" #:terminal ";"]
◊cite["WHO-Masks" #:terminal ";"] ◊cite["BC-Masks"]} This gives
platforms a set of authoritative sources, deviation from which the
community is not willing to tolerate. And our COVID-19 response has
been likened to a war, which can elicit a statist deference to
authority.◊note{This imagery has been criticized, specifically because