Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
12 January 2021

Trump’s Twitter ban is justified, but Twitter’s unregulated power to ban individuals should not be trusted

After US President Donald Trump incited a mob to storm the US Capitol (in what the Times of India memorably described as a “Coup Klux Clan”), social media companies like Twitter and Facebook finally took action against Trump for lying about his election loss and for inciting a violent insurrection. Most notably, on Friday night Twitter banned Trump from its app. Many Trump allies and free speech fundamentalists criticised the move, predictably and simplistically complaining of censorship. These reactions nicely illustrate why almost everything traditional advocates of free expression claim to believe about free speech is misguided or wrong.

First things first. Donald Trump used Twitter to spread the baseless lie that he won the US presidential election, thus delegitimising the results of a free and fair election in the eyes of millions of his supporters. He also used Twitter to incite an insurrection to overturn the results of this free and fair election. Even ardent free speech fundamentalists would be hard pressed to argue that such speech warrants constitutional protection. When such statements are prohibited – as they often are in constitutional democracies – the limitation on free expression is justified.

For example, in South Africa, Trump would have faced criminal prosecution, and may have been jailed for much of what he tweeted (and for claims made in speeches) before and after the election. This is because section 9(1)(b) of the Electoral Code of Conduct prohibits the publication of false and defamatory allegations in connection with the election. Section 98 of the Electoral Act provides that anyone contravening the Code could be found guilty of an offence and could be imprisoned for up to 10 years.

It is therefore not helpful to use the Trump example to think through the complex free speech questions that arise when a private company like Twitter, running a near monopoly, bans somebody from its app. His case is too obvious. Instead, let me tackle some of the most prominent claims made about free expression in the wake of Trump’s Twitter ban.

Claim 1: No one has a right to be given a platform to speak

When considering the right to free expression, there is indeed a fundamental difference between the outright prohibitions of speech, on the one hand, and declining to provide a platform for specific types of speech, on the other. While a prohibition on any speech would always amount to a limitation on freedom of expression (justifiable or not), no one has an absolute right to be platformed, and free expression would normally not be limited when an institution or company refuses to provide a speech platform to an individual.

Thus, if the SABC or ENCA refuses to grant me my own TV show, if Harvard or Oxford Universities refuses to invite me to give a prestigious lecture, or if the notice board at the Spar refuses to post my adds for sex hook-ups, it would be absurd to argue that my right to freedom of expression has been infringed. Similarly, a refusal by UCT to hang my art work in the Vice Chancellors office, or the refusal of Tinder to allow me to upload nude pictures of myself onto its app would not amount to “censorship”. When one is refused a platform for one’s speech, one has to find another platform, and having to do so does not amount to censorship. (As Malusi Gigaba would know, one could always upload one’s nude pictures on PornHub or another such platform if Tinder refuses to host them.)

But I suspect there are at least two (maybe more) exceptions to this principle. Firstly, a public broadcaster like the SABC, has a duty to platform a wide variety of voices and ideas. Because of its public mandate, its partial funding by taxpayers, and its unprecedented reach across South Africa, its refusal to platform certain types of ideas might implicate the right to freedom of expression.

The SABC is unique as many South Africans rely almost exclusively on the SABC TV and especially radio to access news and information. Although access to the internet has moderated the monopolistic impact of the SABC, its public mandate and reach still means that, say, a decision by the SABC not to platform any LGBTQ activists would impact on the right to receive information protected by section 16 of the Constitution as it would have a real impact on who receives the information. (While it would be ethically lamentable if, say, the Daily Maverick takes a similar step, the impact on the ability of individuals to receive such information would be limited.)

Second, the right to freedom of expression (when read with the right to free and fair elections and the right to vote, along with the relevant legislation) may place a duty on both the SABC and private radio, television and print media to platform political parties in a fair and equitable manner, specifically in the run-up to elections. But this “right” should not be read as an absolute right of any politician or political party to be platformed. Instead it should be read as a right to be given a fair amount of time or space, based on the size of the party and other relevant factors.

Claim 2: A private company like Twitter does not limit the right to freedom of expression when it bans somebody from its app

I find this argument particularly unpersuasive as I do not agree that private entities cannot infringe on the human rights of individuals (although this might be true in the USA). The drafters of the South African Constitution, aware of the enormous power wielded by large corporations, specifically included section 8(2) in the Bill of Rights to ensure that private companies are held accountable for their human rights abuses. Thus the section states that private entities (including Twitter) are bound by the provisions of the Bill of Rights to the extent that it is applicable, “taking into account the nature of the right and the nature of any duty imposed by the right”.

Not all rights will always bind private actors, but political rights will often bind private parties. Some examples are easier to get one’s head around than others. For example, if the V&A Waterfront prohibited activists from protesting outside a shop accused of using child labour, it would surely limit the right to freedom of assembly and demonstration protected in the Constitution. As the protest is only likely to be effective if it happens outside the store, the prohibition on protest by the Waterfront would surely limit the right. The interesting question would be whether a court would find that such a limitation was justified.

But – hypothetically – what would the position be if Penguin South Africa cancelled a book deal it had concluded with Bantu Holomisa, after the UDM politician propagated fake covid-19 cures on Twitter? I would think the same platforming argument used above would apply and the decision would not limit the right to freedom of expression, as Holomisa would be able to approach other publishers to publish his book.

However, the position of Twitter, Facebook and Google might be more complicated. This is because these are private companies, running quasi-monopolies, providing a service now considered by many to be of vital importance for our well-being and flourishing. These companies have enormous power to influence what we read and thus, how we think. They also have enormous power to help or hinder us in communicating with ever larger audiences.

These companies pose a potential threat to our right to depart and receive information, first because algorithms pre-select the information we can easily access on these platforms. These algorithms may be benign, but there is no guarantee that they will be benign as these private companies are only lightly regulated and are, in most part, not legally accountable for their operational decisions. Second, these companies have enormous power to silence voices by suspending individual accounts or banning individuals completely from these apps. If these companies were to abuse their powers, they would pose a real threat to the right to freedom of expression and to our democracy itself.

In this sense, companies like Twitter, Facebook or Google are different from the Daily Maverick. If the Daily Maverick takes a decision never to mention Donald Trump ever again, it may have a small impact on his ability to get his toxic message out, but this will be marginal. But if Twitter, Facebook and Google all decide to automatically delete any post that mentions Donald Trump’s name, it would amount to profoundly effective censorship.

Conclusion: What is to be done?

I draw two conclusions from the above discussion.

First, when large private companies like Twitter, Facebook or Google, running quasi-monopolies and providing a public service, deplatform an individual, it may drastically limit the rights of that individual to impart and receive information, thus implicating the right to freedom of expression. Trumps’ Twitter ban was clearly warranted by his behaviour (as we have seen, in South Africa, Trump might have faced 10 years in jail for his actions), and the limitation on his right to free expression was thus justified, but this might not be the case in every case where Twitter bans somebody from its platform.

Second, the power of these private companies potentially pose a profound threat to our democracy. In many parts of the world (Europe tentatively emerging as an exception) these companies are not held accountable, yet they play a decisive role in what information we are exposed to and whether our own ideas are amplified or not. Being quasi-monopolistic information companies, the argument that “the market” will ensure that these companies are held accountable is not persuasive – even if one believes that “the market” normally does hold companies accountable (which I do not).

It is for this reason that I believe the time has come to impose stricter regulation of these companies. The CEO’s of Twitter, Facebook or Google and the army of employees who make decisions on who get kicked off these platforms and how to tweak their algorithms have not been elected. It is therefore time for elected representatives to pass legislation setting out basic, human rights enhancing, norms and standards that such companies should comply with when making the many decisions that could influence who gets heard and what information one gets to access. Such legislation would of course be subjected to the discipline of the Bill of Rights – including the right to freedom of expression – which means it is less likely to lead to abuse than leaving it to the private companies to decide – often in secret – how to deal with these complex free expression issues.

Unlike some of the sloganeering free speech fundamentalists, I am not pretending that the kinds of distinctions I draw above are watertight, or that they cannot be improved on. Neither do I pretend that it will be easy to decide how these large quasi-monopolies should be regulated, or that there is no risks involved. What I do know is that those who believe that the protection of freedom of expression is an uncomplicated matter, has not made any good faith attempt to think through the issues at hand.

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