Google: Taking responsibility, or choosing their battles?

Google’s carefully considered decision to bar Egyptian and Libyan YouTube viewers from accessing Innocence of Muslims changed its line on resisting responsibility for content, and changed the terms and conditions under which the world uses its service, perhaps forever.

If ever asked, I strongly advise service providers such as ISPs, website hosts, search engines, email services and social networks to stay neutral – like phone companies, and act purely as plain carriers of data.

Google made a clear commitment to this principle in 2007, by resisting attempts to make service providers responsible for carried content and in its defence of the legal principle of “qualified safe harbours for Internet intermediaries”.

Avowing respect for the laws of the countries in which they operate, they normally only block access when presented with a valid legal order, unless the material is already judged to breach terms of service that bar certain kinds of content.

Accordingly Google barred access to the YouTube video Innocence of Muslims in response to legally-applied state orders in India and Indonesia, but declined informal appeals from the US and Australia.

The White House, which found the video “reprehensible and disgusting,” asked if it breached YouTube’s terms of service, thereby justifying a global ban. Google replied that it didn’t.

Anti-Islam Film protests (8009251610)
Malaysians protest the Film Innocence of Muslims:
Firdaus Latif / Wikimedia Commons

But in Egypt and Libya, Google was not responding to state demands, legal or otherwise. Instead it cited a “very difficult situation” and independently decided to ‘temporarily’ restrict access to the video in both countries anyway.

The Electronic Frontier Foundation’s Jillian York said the decision “reeked of paternalism” and described it as a step towards putting “moral policing” of speech over fairly applied safeguards.

If service providers take the ad hoc route, as Google did in this case, make a value judgement on content and block access without a valid legal order they will end up, as York put it: forever “vulnerable to demands from a variety of parties and (expected) to explain why it sees censorship as the right solution in some cases but not in others”.

Google was once the main corporate critic of ‘intermediary liability’ and defender of the principle, as they themselves expressed it in 2007, “that Internet middlemen – like ISPs, website hosting companies, search engines, email services, social networks, and other neutral hosts of information sent, posted or uploaded by others – should not be held legally liable for their users’ content”.

No longer. Google HQ thought hard about the takedown order in Egypt and Libya. Not only the need to protect public order – one of the few justifications for limiting free speech approved by Article 19 of the UN’s International Covenant on Civil & Political Rights – but also the consequences for its policy on intermediary liability.

It’s suggested that the situation in Egypt and Libya was already out of the frame of references on legal orders and application of T&Cs, even before issues of moral and corporate responsibility began to knit together as they apparently did at Google HQ.

The Global Network Initiative (GNI) – a multi-stakeholder forum for corporates and civil society in the online world, of which both Google and Index are members – has said “there is no ‘one size fits all’ approach to corporate responsibility, nor a single right course of action or script for all to follow”.

Yet pre-agreed procedures give corporate decision making processes more clarity, transparency, fairness and usually, recourse to appeal, sometimes even redress. Ad hoc decisions, no matter how well intentioned, do not.

I expect Google to review their takedown guidelines in situations such as these, so they are a sounder tool to use in managing their response in these extreme circumstances.

There’s definitely a role for the GNI as a ‘thought leader’ in addressing this, but only if all its members allow that the debate on appropriate responsibilty for content has been moved on by Google beyond the straightforward issue of whether a takedown order has legal authority or not.

Like it or not, and some corporates will not, the function of corporate terms of service agreements by ‘internet middlemen’ and their own interpretation of corporate social responsibility has been placed front and centre in the debate.

It was after all the route the White House chose when it ‘reached out’ to Google and asked it to ‘review’ whether Innocence of Muslims should be globally censored.

‘Internet middlemen’ apply terms of service conditions that entitle them to block content for all kinds of reasons; desire to protect reputation, avert criminality, even executive principles. Some will want to reserve the right in a rapidly changing crisis to use their own judgement, without being tied to a commitment to act only on a court order.

Index on Censorship has advised service providers that the process under which these decisions are made should be transparent and fully respect the free expression rights of the user, where guaranteed by national constitution or, as in the UK, by the Human Rights Act.

The European Commission is giving serious thought to ways of forging a relationship between government and business that works in the interest of free expression online, and more coherence on free expression rights in EC digital strategies devised by the EC’s departments (DGs) for development, aid and foreign affairs.

Unlike civil society, the EC has powers to apply terms of service of its own on the corporate sector.

The DG for enterprise & industry is examining options to introduce EU-wide corporate social responsibility to the ICT sector to reflect the UN’s ‘Protect, Respect and Remedy’ CSR principles, while the DG for Communications Networks, Content & Technology has a very strong freedom of expression agenda that includes EC vice-President Neelie Kroes’ “No Disconnect” strategy.

As states look to police the digital world, they are increasingly co-opting the private sector to censor on their behalf.

Whether encouraged by government or not, new business practices by companies in the digital sphere can amount to unauthorised direct censorship, invasion of privacy, inappropriate monitoring of on- and offline activities, and terms of use that chill free speech online.

The outcomes of key digital debates and policy arguments now unfolding will determine in the next few years whether the internet is a place for free expression and association, or a controlled, monitored and censored space.

Corporates should not underestimate the will of civil society groups and their allies to defend the internet as free space, or its conviction that keeping that way is in the best interests of the corporate sector too.

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