Bloquer ou pas bloquer? Les contenus “insultants” et les intermédiaires de l’Internet

Ci-dessous le texte de mon intervention au séminaire “Religion, Freedom of Expression, and Outrage” organisé par le Master in Foreign Service de l’université de Georgetown. J’y discute de la position délicate des intermédiaires de l’Internet, entre capacité de controle, responsabilité et “soft power”, dans les cas de publication de contenus “insultants” sur des services en ligne comme Facebook, Twitter ou – comme l’a montré récemment le vidéo ridiculisant Mahomet – Google.

Google and Video Blocking: Control (and Responsibility) of Information Intermediaries on the Internet

Francesca Musiani

Religion, Freedom of Expression, and Outrage – Panel Discussion

The “Embassy Riots” that have shaken the Arab world a couple of weeks ago, following the publication on the Internet of an “American-made video” (better defined as a video made by an individual with American citizenship) ridiculing the Prophet Muhammad, offer one further, important occasion to reflect on one of the very relevant questions of our connected world – the extent of the control (and the responsibility) that the great information services, intermediaries and gatekeepers of today’s Internet exert on user-generated, online-published content. Google’s decision to selectively block the video in violence-stricken countries, while not removing it from the service altogether, raises, indeed, fundamental questions about the control that Internet companies have over online forms of expression. Should the companies themselves decide what standards govern what is seen on the Internet? How consistently should these policies be applied, and are de facto applied? What to do of “critical precedents”, like this one, in the future?

This most recent debate stems from the decision by Google – the “giant” of online search, which owns the very popular video streaming service YouTube – to block access to the infamous video in two of the countries that have experienced the most severe upheavals, Egypt and Libya, while at the same time choosing not to remove it completely from its Web site. Google’s decision is based on a number of conflicting dynamics. On one hand, its capacity, stated by contract, to block access to content on a country-by-country basis. On the other, its stated approach to have a “bias in favor of free expression – not just because it’s a key tenet of free societies, but also because more information generally means more choice, more power, more economic opportunity and more freedom for people” – an ideology that has been upheld repeatedly by Google’s top leaders in the recent past, including a number of very vocal reproaches to China’s online censorship efforts, and refusals to remove content deemed as delicate or unacceptable by governments – including the United States. This is reflected in YouTube’s terms of service: according to them, hate speech is speech against individuals, not against groups. All of this is enshrined in the company’s obviously steady lack of willingness to play any part, even indirectly, in fueling violence that has already resulted in American deaths.

In short, as the video mocks Islam but not Muslim people and is therefore, by Google’s own admission, “clearly within the company’s guidelines”, it has been allowed to stay on the site in most of the world – while “given the very difficult situation in Libya and Egypt”, a Google representative has remarked, the company has “temporarily restricted access” in both countries.

The New York Times has recently reported the opinion of Peter Spiro, a constitutional and international law professor at Temple University in Philadelphia. The scholar was adamant in saying that “Google is the world’s gatekeeper for information, so if Google wants to define the First Amendment to exclude this sort of material then there’s not a lot the rest of the world can do about it (and) it makes this episode an even more significant one if Google broadens the block.” Indeed, in addition to emphasizing the amount of control that Internet companies can exert alongside governments (sometimes, superseding them) on what should, and should not, be publicly and freely expressed online, the Embassy Riots also highlight the difficult positions that content platforms are sometimes put in – because of the responsibility that their “privileged gatekeeper status” entails.

All Web companies that allow people to post content online — Facebook, Twitter, Google — grapple with issues involving content. The questions are complicated by the absence of geographical boundaries on the Internet, that require companies to navigate through a highly heterogeneous ensemble of laws and cultural traditions. Web companies receive dozens of requests a month to remove content. Google, in particular, has continually referred to its guidelines to remove only content that breaks laws or its terms of service, and only at the explicit request of users, governments or courts. In this light, blocking the anti-Islam video was exceptional, although “the decision to block in those two countries specifically is kind of hard to second guess, considering the severity of the violence in those two areas,” pointed out Kevin Bankston, director of the free expression project at the DC-based Center for Democracy and Technology. Some wonder what precedent this might set. Rebecca MacKinnon, co-founder of Global Voices, a worldwide network of bloggers, has remarked that “it depends on whether this is the beginning of a trend or an extremely exceptional response to an extremely exceptional situation.”

Google’s response to the “Embassy Riots” can be read as perplexing and disquieting, if the enormous weight of the Internet company ends up pushing for the first one of these alternatives. To quote Kevin Bankston again, the video blocking may send the message that “if you violently object to speech you disagree with, you can get it censored.” It may also be read in a more positive light, as an attempt by one of the Internet’s foremost “giants” to craft more articulate, complex and nuanced policies on content removal, user rights, and the power of intermediaries – even when it is less risky, not just for the users but for the company itself, to take a more extreme stance of absolute openness or absolute restriction. Time will tell what is going to build on this episode, be it a critical precedent or an isolated case – but one thing may be concluded for now: it demonstrates, not for the first time, the court-of-law-like powers of Internet information intermediaries, de facto able to decide what content remains public, and what is taken out. But the techno-juridical framework governing online freedom of expression – and with it, transparency and accountability of individuals, companies and governments – is still very much in the making.

Francesca Musiani

Chercheuse postdoctorale, MINES ParisTech Yahoo! Fellow in Residence, Georgetown University

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