Note: Growing up, my parents were big fans of BritComs - British sitcoms that ran on our Boston PBS station from the BBC. Are You Being Served? Fawlty Towers. And our very favorite, "Keeping Up Appearances."  To borrow from their dialog, I'm so pleased to announce that "our John" John Stone, is now also featured on the Children's Health Defense site.    It is alliances like this that will educate a broader swath of readers. Please join me in congratulating him.

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For the Attention of David Kaye, on Freedom of Opinion and Expression

By John Stone

On May 1, 2019, David Kaye Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression for the United Nations wrote a letter to Facebook’s co-founder and CEO Mark Zuckerberg. He wrote to provide preliminary reactions to Facebook’s initiative to create an Oversight Board for Content Decisions (“the Board”).

In his letter he used as examples “anti-vaccination disinformation campaigns” and “vaccine misinformation:

Measures Facebook has adopted, for instance in the face of anti-vaccination disinformation campaigns, are often understandable responses to unfolding crises, but their ad-hoc development may be susceptible to criticisms of bias and arbitrariness. Aligning these measures with human rights standards, however, can place them on a more principled footing. Under Article 19(3), restrictions on expression may be validly imposed if they are “provided by law” and “necessary” to serve a legitimate objective, such as the protection of public health. The Human Rights Committee has found that “law” must be “formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly.” Even though Facebook does not make laws, the general principles of legality should nevertheless guide Facebook’s development of its rules and policies. In the context of its response to vaccine misinformation, for example, these principles would at least require Facebook to provide more information about how it defines “vaccine misinformation,” the processes it has developed for flagging such content, and the types of consultations it conducted in developing these measures and with whom it consulted. These are also the kinds of considerations that the Board, to provide genuine oversight, should be equipped to assess in reviewing appeals of content decisions.

Article 19(3) also provides concrete metrics for assessing the impact of particular forms of expression on its platform, and calibrating a proportionate response to address such impacts. Under the requirement of legitimacy of objectives, it is incumbent on those advocating for restrictions to explain the “precise nature of the threat” and assess whether there is a “direct and immediate connection between the expression and the threat.” (CCPR/C/GC/34) In this example, these principles should lead Facebook to assess and explain how the spread of vaccine misinformation on its platforms raises public health concerns. Under the requirement of necessity, restrictions on expression must be “appropriate to achieve their protective function,” the “least intrusive instrument amongst those which might achieve their protective function” and “proportionate to the interest to be protected.” (Id.) Considerations of proportionality provide Facebook with a principled and internationally recognized framework for evaluating its decision to demote and de-emphasize anti-vaccination content rather than categorically ban such content on its platforms. Again, these are also the kinds of questions that the Board could be authorized to address in its review of content decisions.

On May 29, 2020 I wrote the a letter to David Kaye

To: David Kaye, ‘UN Special Rapporteur on the promotion and protection of the right freedom of opinion and expression

RE: Your letter to Mark Zuckerberg

Dear Mr. Kaye,

Read the full letter at Children's Health Defense For the Attention of David Kaye, on Freedom of Opinion and Expression