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Facebook may proactively censor content to protect itself from legal or regulatory action

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Starting from October 1, Facebook might proactively block content, if “it determines” that doing so is “reasonably necessary” to avoid any legal or regulatory impact on the company. In short, the company has decided that it will take down content which isn’t necessarily unlawful, just so that it can avoid legal or regulatory scrutiny.

Facebook told Bloomberg that the change will allow it to block users and publishers in Australia from sharing news. However, since Facebook told the publication that the change was global, it can have larger ramifications on free speech (more on that below).

We have reached out to Facebook with a few questions about the change and will update the post when they respond. Facebook informed users of the change via an app notification on Tuesday.

Facebook’s notification to users about the imminent change.

Facebook might block news sharing in Australia

The change comes on the heels of Facebook’s announcement that it will not allow publishers and users in Australia to share local and international news on Facebook and Instagram if the country passes a proposed code which is set to challenge Facebook and Google’s influence over online news. Facebook said that despite numerous proposals to the Australian government, it was left with a choice of either removing news entirely or “accepting a system that lets publishers charge us for as much content as they want at a price with no clear limits”. “Unfortunately, no business can operate that way,” it added.

Australia has put out a draft News Media Bargaining Code for consultation which forces platforms like Facebook and Google to pay Australian news companies for their content. The code also requires platforms to give news companies nearly a month’s notice of any changes to its algorithms which may affect referral traffic to news sites, or those affecting rankings of paywalled news, and “substantial changes” to how news is displayed, and even advertising of news.

How this could affect free speech on Facebook

This move gives Facebook too much power to “determine” what type of content could possibly lead to trouble for the company, and this is where Facebook could possibly make decisions out of its own biases and business interests. In India, for instance, the company’s public policy head, Ankhi Das stands accused of political bias, and internal communication has reportedly revealed that she was overt in her support for the governing BJP, while disparaging its main opposition, the Congress party.

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Independent researcher Srinivas Kodali believes that this change could further help the company in boosting its business interests, but warned that it could also have a chilling effect on free speech. “Facebook is trying to censor people to ensure their business interests are not impacted. But this has severe ramifications where Facebook or Twitter can voluntarily delete content without court orders. This was recently done in the case of Prashant Bhushan’s tweets. Twitter deleted his tweets before even there was an order,” Kodali told MediaNama.

It is safe to assume that content that is against a ruling government is more likely to attract more legal and regulatory scrutiny, especially in a time when the political discourse in democracies has become extremely polarising. Kodali said the change can possibly lead to overt-censorship of content that is anti-establishment in nature. “[…]this [change] has severe ramifications where Facebook or Twitter can voluntarily censor rights activists who are probably making statements against the state. Anything from Kashmir to CAA could be censored in future,” Kodali said.

However, Divij Joshi, Tech Policy fellow at Mozilla told us that “the new contractual term changes little of the legal reality under which content operation operates in India”. He said that the change is “likely a response to possible claims which can be brought against Facebook. Facebook in India has no legal obligation to not remove any user content, only a legal obligation to remove particular content under relevant law and as per the Shreya Singhal judgement”.

In a series of tweets, Joshi said that, “Facebook, as a non-state actor, has no legal obligation under public law (constitutional or otherwise) *not* to censor any content at its own discretion. At least, not in India (sic)”. He added that “Indian law does not prohibit discretionary censorship by [Facebook]. The only legal recourse against discretionary censorship is to possibly bring a contractual claim for failure to abide by its terms of service (which can also be a claim under consumer protection law)”.

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Also read:

Update at 5:05 pm: Article was updated with comments from Divij Joshi, who said that the new contractual term changes little of the legal reality under which content operation operates in India

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