SOCIAL MEDIA SANCTIONS – THE NEW PROCEDURAL JUSTICE?
Guest blog post by Lucas Hieronimus and Florian Bachmann
One view on social media communication is that platforms should remove content deemed to be inappropriate or disturbing and suspend users who have repeatedly violated the Community Guidelines and should do so in a consistent and coherent manner. A contrasting view is that users can share what they want, and platforms should solely act as transmission agents without assessing and restricting the content. But where exactly do platforms stand on content moderation and what do their sanctions reveal about it?
The Importance of Community Guidelines
First, to understand why a particular behaviour on social media has to be sanctioned at all and on which grounds it might be helpful to take a step back and look at the importance of community guidelines and content moderation in general. But what are community guidelines, and how does content moderation look like? Broadly speaking, community guidelines are the regulations set by the individual social media outlets to manage the content and behaviour their users display on them. Every major social media, such as Twitter, YouTube, TikTok, and Instagram, has them. This is especially vital, having in mind new and potentially threatening online phenomena such as trolling, fake news, online scams and hate speech. Due to an increasing societal call for action regarding social media outlets and their responsibility towards both their users and society as a whole, many social media outlets have to upgrade their community guidelines constantly to adapt them to current needs. A prominent example for such recent upgrades is, of course, Twitter’s Election Integrity Policy, which was enacted before the 2020 US federal election, in order to prevent the spread of misinformation aimed at distorting the democratic process. Nevertheless, the ongoing COVID-19 pandemic has also boosted the need for adapted community guidelines since conspiracy theorists heavily rely on social media to spread potentially dangerous misinformation on the disease and the current vaccinations. YouTube, for example, integrated an entirely new section on COVID-19 information into its community guidelines.Comparing the different social media outlets’ community guidelines, one can see that they tend to categorise different types of prohibited online behaviour in a similar structure. Generally, the standard categories, almost universally present, include spam and deceptive practices, sensitive content, violent or dangerous content, and regulated goods and illegal activities.Still, the question is legitimate, why do we need community guidelines in the first place? Use your imagination and think of social media platforms as actual communities of people (the users). The community guidelines serve as the law to allow a peaceful and fruitful cohabitation. In a system based on a functioning symbiosis between coherent community guidelines and effective content moderation, every party benefits. Social Media outlets are increasingly forced to implement good content moderation policies in order to keep their reputation. Just think of the backlash on Facebook’s lash content moderation during the 2016 US presidential election and how the company was repeatedly criticised for allowing the spread of falsehoods. Also, businesses should try to look out for proper content moderation on their own online presences on various social media outlets. Otherwise, a company’s reputation could suffer as well, for example, if people only find negative or even disturbing comments under certain posts. Lastly, and arguably to the most considerable extent, the user profits from such measures by having the possibility to navigate through a friendlier and more secure online environment.
Different Sanctions on Social Media
Criticism on the Measures Taken
Naturally, sanctioning social media users always leads to an intensive debate and criticism from every side of the aisle. The most striking criticism nowadays is, of course, that sanctioning social media users, for example, by deplatforming them, might infringe upon their freedom of speech. This is especially controversial regarding the sanctioning of political world leaders, such as Donald Trump or Jair Bolsonaro. Although the topic is fascinating and subject to rapid development, this blog post will not go further into detail here, as our blog already discussed the subject in detail. Similarly to the sanctioning of political leaders, also ordinary users who represent extreme political views, for example, conspiracy theories or far-right ideologies, are repeatedly sanctioned for violating the community guidelines. Ken Jebsen, for instance, a former German television host turned conspiracy theorist, was recently permanently banned from YouTube for spreading conspiracy theories and falsehoods around the COVID-19 pandemic, leading to a public outcry from the far-right. Although these bans are often wanted by most users in general and are a logical consequence for repeatedly uploading controversial content, some researchers argue that banning people with extreme political views only furthers their radicalisation, as they are not able to enter into proper discussions, thus receiving no objections to their opinions. In general, as certain influencers and streamers have a large fan basis, a public backlash for sanctioning them is only a natural consequence. Especially on Twitch, where streamers get banned temporarily quite frequently, such a backlash is more than typical. There even exists a Twitter profile that automatically updates its followers on when a streamer gets banned. Of course, there are, however, more subtle sanctions than an ordinary social media ban, such as shadow-banning on Instagram, around which there is often a lot of confusion and also increasingly more criticism. Another criticism of the sanctions imposed by the platforms is the lack of legitimacy. Social networks have complete control over their platforms and can, if the content is deemed to be inappropriate or to contain hate speech or nudity, simply remove the content or restrict access to their sites which consequently restricts the right to free speech enshrined in most constitutional instruments and which entitle individuals to free expression without intrusion. These competences are similar to those of state authorities to assess a violation and impose the appropriate consequence. While the latest events have demonstrated that many platforms have accepted the opinion that they should take responsibility for content and better monitor content and impose sanctions when the users fail to comply with the Community Guidelines, some question whether private companies may lack legitimacy for engaging in rulemaking and enforcement  and whether there should be a limit to the discretion of theses private companies when adopting enforcing actions. Most legal systems control their citizens in the sense of exercising powers and maintaining law and order and trace these legitimate powers to rule in their sovereignty. They are structured around a set of affirmative rights and duties, which often require a high level of scrutiny. Moreover, in a conflict between rights or interests, each is balanced so that the enjoyment of one right does not result in the deprivation of another. In a legal setting, this balance is defined by laws or by the interpretation of these laws by judges and may, in case of dissent, be subject to appeal. Yet this is not the case for social media platforms. The power of these platforms merely stems from the control they exercise over user accounts and content and the rules and sanctions are not adopted according to a debate between elected representatives who serve the interest of their constituents but defined through the standards and policies that social media companies create. Platforms can thus not claim democratic legitimacy and should not be able to enforce coercive actions that may restrict the enjoyment of fundamental freedoms. Nevertheless, while the application of notions such as legitimacy to social media platforms may seem like an evidence, private entities are not state authorities and social media users are not citizens. It is clear that the various social media outlets’ different paths are not all strictly coherent and at times, misleading if not even potentially dangerous. However, likewise, it holds also true that, until now, no utopian path was found that would be above reproach. We have seen that one of the reasons for this is that every social media outlet has its own specific focus that it has to deal with, as some rather rely on video and others on photo content. Nevertheless, this should be no discouragement to all social media outlets to live up to their responsibilities and strive for the safest online environment they can provide to their users – even if it is fair to predict that the criticism will not disappear entirely.