Mod Squad: Legal Aspects of Social Content Moderation

The social media landscape is in flux. The dizzying rise of AI and the burgeoning metaverse have ignited a global debate around online safety and content moderation. At the heart of this discussion, in the United States at least, lies a critical question: How can we ensure a safe and healthy online environment without stifling free speech? The startling ease with which special interests create and disseminate disinformation and deepfakes that push First Amendment protections to their limits — and possibly beyond — complicates the discussion.

Lawmakers across the country are grappling with how to address the challenges posed by online content, from the spread of misinformation to hate speech and copyright infringement.

A Global Quest for Transparency

The proliferation of “information disorder syndrome” — creating or sharing misinformation, disinformation, fake news, and hate speech, with or without malicious intent — has become a major concern for governments worldwide. In response, many countries are turning to transparency as a potential solution. The logic is simple: by shedding light on their content moderation practices, social media companies can be incentivized to improve them.

For example, California passed Assembly Bill 587 in 2022, requiring social media platforms with over a million daily active users to publicly disclose their content moderation policies. This includes how they manage reports of hate speech, misinformation, libel, and user appeals. Similarly, the European Union’s landmark Digital Services Act (DSA) mandates transparency from social media giants. The DSA requires platforms to disclose their content moderation practices, the criteria used to moderate content, and how they deal with user complaints.

While transparency seems like a straightforward approach, the devil — as always — lies in the details. An experienced Web3 attorney can advise platforms on exactly what and how much information needs to be disclosed and how this information will be used.

A World of Diverse Approaches

The global response to online content moderation is far from uniform. While the US and EU emphasize transparency, other countries have taken a more direct approach.

Germany, Austria, and several others have enacted laws specifically prohibiting hate speech and violent content on social media platforms. These laws often require platforms to remove such content within a tight timeframe, typically 24 hours, or face hefty fines. As might be expected, this approach has sparked concerns about potential censorship and the chilling effect it might have on legitimate free speech and political commentary.

Beyond Europe, several countries are actively shaping their regulatory landscapes. Venezuela, Australia, Russia, India, Kenya, the Philippines, and Malaysia have implemented or proposed laws similar to the German model.

Indonesia’s proposed legislation seeks to compel social media platforms to operate under local jurisdiction for content and user data. This move has significant implications for data privacy and internet governance, potentially disrupting the free flow of information.

Ethiopia’s approach is particularly aggressive. Its Computer Crime Proclamation and Hate Speech and Disinformation Prevention and Suppression Proclamation of 2020 require platforms to function as digital police forces, mandating the removal of “disinformation” and hate speech within 24 hours. Such compressed timeframes raise serious concerns about the accuracy and fairness of content moderation decisions.

The proposed Mauritian law represents an even more extreme example. It would empower the government to seize and intercept traffic to social media platforms — which seems like a blatant disregard for net neutrality and the free flow of information.

The US Walks a Tightrope

Despite First Amendment protections, there are growing calls in the US for the enactment of broad content moderation laws. While the potential harms arising from unfettered online discourse cannot be ignored, the spread of misinformation can undermine trust in institutions and democratic processes. Hate speech can incite violence and marginalize vulnerable groups. Copyright infringement on these platforms can also damage creativity and stifle innovation.

Traditionally, US law has afforded online services significant leeway in content moderation thanks to Section 230 of the Communications Decency Act. This legal shield allows platforms to host, display, remove, or block content without facing liability for its origin. While Section 230 has fostered online innovation, concerns about its scope have emerged. Shielding platforms from liability for user-generated content allows them to focus on growth without the burden of constant content moderation. However, concerns have been raised about the potential for this shield to be abused. Critics argue that Section 230 allows platforms to become de facto publishers, wielding immense power over online discourse with limited accountability.