A Note to Regulators
The Santa Clara Principles is not a template for regulation. The principles were not created for that purpose and should not be used as such. States should not transform the Santa Clara Principles directly into legal mandates.
This is especially important in the current regulatory climate in which there are numerous efforts around the world to regulate the content of social media platforms. Some of these efforts seek to address harms caused by posted content, while others focus on addressing wrongful takedowns and other perceived wrongful conduct by the dominant platforms. Governments rarely work with the various stakeholders, and the regulatory process is itself inadequately transparent and inclusive, and often non-democratic, and results in unsound policy.
A problem of scale
The Santa Clara Principles seeks to set standards. Some services will appropriately meet these standards. Some will appropriately meet only some of them, while others will and should exceed them. Where any particular service falls will depend on many factors—number of users, capitalization, age, focus of service, editorial priorities, user priorities—that will vary from service to service. While companies should design their services with due process in mind from the beginning, companies must have some flexibility as to how they implement the Santa Clara Principles, from their inception, and then evolving over time as the service matures. The Santa Clara Principles are thus best seen as touchstones against which any company’s practices can be evaluated and compared, not as dictates.
In order to maintain this necessary flexibility, governments should resist legal mandates that would be prohibitively expensive or practically impossible to meet. Such mandates discourage new entrants into the field and thus discourage innovation and competition. Even among well-established services, there are no metrics that readily correspond to a required level of compliance.
Potential for exploitation
The Santa Clara Principles are designed to promote freedom of expression and human rights of internet users more broadly. They are not intended to provide governments with cover to restrict speech or shut down vital communications services.
Variation among national and regional law
Online services are inherently international in scope. The Santa Clara Principles thus aim to have an international scope. Each country or region must consider its local context, cultural nuances,and legislation to ensure the utmost protection of human rights when discussing content moderation regulation. The regulation process for each jurisdiction must be enriched by the input of local stakeholders, so these principles should not be used to impede their participation.
A constantly evolving landscape
As we have seen since the advent of public use of the internet, online services are constantly evolving. We anticipate the Santa Clara Principles will likewise remain an evolving document subject to frequent re-examination and revision. Regulations that attempt to codify them also need to be revisited frequently and risk becoming obsolete.
However, the revised Santa Clara Principles do specific principles for governments and other state actors to promote their own transparency and to not obstruct the companies’ transparency:
Principles for Governments and Other State Actors
Governments of course have an obligation under various international legal instruments, for example, Article 19 of the Universal Declaration of Human Rights, to respect the freedom of expression of all persons. As a result, state actors must not exploit or manipulate companies’ content moderation systems to censor dissenters, political opponents, social movements, or any person.
With respect to transparency, transparency by companies is a critical element of ensuring trust and confidence in the content moderation processes. However, states must recognize and minimize their roles in obstructing transparency, and must also provide transparency about their own demands for content removal or restriction.
1. Removing Barriers to Company Transparency
Governments and other state actors should remove the barriers to transparency (and refrain from introducing such barriers) that prevent companies from fully complying with the above principles.
Governments and other state actors should ensure that companies are not prohibited from publishing information detailing requests or demands for content or account removal or enforcement which come from state actors, save where such a prohibition has a clear legal basis, and is a necessary and proportionate means of achieving a legitimate aim.
2. Promoting Government Transparency
Governments and other state actors should themselves report their involvement in content moderation decisions, including data on demands or requests for content to be actioned or an account suspended, broken down by the legal basis for the request. Reporting should account for all state actors and, where applicable, include subnational bodies, preferably in a consolidated report.
Governments and other state actors should consider how they can encourage appropriate and meaningful transparency by companies, in line with the above principles, including through regulatory and non-regulatory measures.