Emily B. Laidlaw

Private Power, Public Interest: An Examination of Search Engine Accountability

As information becomes a critical commodity in modern society, the issue is raised whether the entities that manage access to information, that are tools for public discourse and democracy, should be accountable to the public. The Internet has transformed how we communicate, and search engines have emerged as managers of information, organizing and categorizing content in a coherent, accessible manner thereby shaping the Internet users experience. This article examines whether search engines should have public interest obligations. In order to answer this question, this article first examines comparative public interest regulatory structures, and the growing importance of the Internet to public discourse. Then examined is how the algorithmic designs and manual manipulation of rankings by search engines affects the public interest without a sufficient accountability structure. Finally, the values necessary to a public interest framework are suggested.

A framework for identifying Internet information gatekeepers

Issues of freedom of expression, intellectual property and data protection dominate debates concerning Internet governance, and the legal responsibility of gatekeepers is often at the centre of such discussions. A focused analysis is needed on what is meant by the term and how to identify and differentiate between the various gatekeepers. This article traces the historical development of the term gatekeeper and shows how traditional conceptions of gatekeeping are inadequate for the context of the Internet where gatekeeping primarily involves control over the flow, content and accessibility of information. A particular type of gatekeeper will be identified, termed ‘Internet Information Gatekeepers’, which are those gatekeepers that as a result of their control of the flow of information, control deliberation and participation in democratic culture. This article will then propose a human rights driven framework for identifying and differentiating between the various gatekeepers and their levels of responsibility.

The responsibilities of free speech regulators: an analysis of the Internet Watch Foundation

The Internet Watch Foundation (IWF) is a UK-based self-regulatory organization that seeks to reduce the availability of child sexual abuse and criminally obscene content on the Internet. One of the methods used by this organization is the creation of a blacklist of content, which the members disable access to through the use of filtering technologies. The work of the IWF raises fundamental questions about how to regulate free speech in the digital age; it carries out work of critical importance, but if unchecked its operations can have a significant impact on the right to freedom of expres- sion. This article examines whether the IWF’s regulatory structure is sufficient to protect and respect freedom of expression online. The analysis is both internal to the organization by looking at its governance documents, and external to the IWF by examining the applicability of human rights laws. Through this examination, wider issues in Internet regulation and human right are analysed, in particular the increasing impact of businesses on human rights such as free speech, the sufficiency of self-regulation to address human rights issues, and the limits in extending direct application of human rights laws to private organizations. This article concludes by identifying the risks with self-regulatory regimes when human rights are at stake and by framing the principles needed for accountability of such bodies as the IWF for freedom of expression.

Myth or Promise? The Corporate Social Responsibilities of Online Service Providers for Human Rights

The story of technology and law has often been about the law lagging behind innovation. Corporate Social Responsibility (CSR) instruments, because of their transnational amenability, responsiveness to change and non-binding nature, have been increasingly deployed to fill the perceived governance gap. This chapter examines the various CSR frameworks that guide or govern online service providers (OSP), such as search engine providers, social networking providers, payment providers, and e-commerce platforms. It will focus on three influential initiatives: the United Nations Guiding Principles, the European Commission ICT Sector Guidance and the Global Network Initiative. The core question for OSPs, as with any company, is how do we make them accountable for their human rights impact? This entails analysis of some of the following questions. What value, if any, do such CSR frameworks offer to the protection of human rights online and what are their drawbacks? Relatedly, how do we know if these CSR frameworks are a success? What factors lead to the conclusion that CSR, in a given situation or sector, is an ill-suited device where more traditional legal measures are needed?

What Is a Joke? Mapping the Path of a Speech Complaint on Social Networks

When an individual goes online and makes a comment that causes offense it can be framed in a variety of ways. It can be framed as hate speech, defamatory speech, an invasion of privacy, terrorism supporting speech, or bullying, obscene, or offensive speech. The common defence of such posts is that it was just a silly joke. The question for speech regulation is how to treat such purported jokes. Are these jokes simply pushing boundaries; distasteful, but the price we pay for our freedom of expression? The banter and jokes that take place on social media are often spontaneous and imperfectly executed. The problem is that some of these jokes can cause serious harm, particularly to traditionally marginalised groups which tend to be the targets. The response of Western countries is varied, with the United Kingdom, for example, struggling with over-criminalization of such comments, while that is not the case in Canada or the United States of America. Most complaints about content fall to be privately regulated through the hosts. Through the lens of what is a joke, this chapter maps the path of a complaint about speech on social networks, focusing on the ways that the law, industry measures and voluntary policies by the hosts interwork and intersect. This mapping will then be used to highlight the difficulty in drawing a line between offensive speech requiring regulation and jokes.