My Testimony to the Colombian Constitutional Court Regarding Online Account Terminations and Content Removals

Today, I testified remotely before the Colombian Constitutional Court in the case of Esperanza Gómez Silva c. Meta Platforms, Inc. y Facebook Colombia S.A.S. Expediente T-8.764.298. In a procedure I don’t understand, the court organized a public hearing to discuss the issues raised by the case. (The case involves Instagram’s termination of an adult film star’s account despite her account content allegedly never violating the TOS). My 15 minutes of testimony was based on this paper.

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My name is Eric Goldman. I’m a professor at Santa Clara University School of Law, located in California’s Silicon Valley, where I hold the titles of Associate Dean for Research, Co-Director of the High Tech Law Institute, and Supervisor of the Privacy Law Certificate. I started practicing Internet Law in 1994 and first started teaching Internet Law in 1996. I thank the court for this opportunity to testify.

My testimony makes two points. First, I will explain the status of lawsuits regarding online account terminations and content removals in the United States. Second, I will explain why imposing legal restrictions on the ability of Internet services that gather, organize, and disseminate user-generated content (which I’ll call “UGC publishers”) to terminate accounts or remove content leads to unwanted outcomes.

Online Account Terminations and Content Removals in the US

In 2021, Jess Miers and I published an article in the Journal of Free Speech Law (run by the UCLA Law School) entitled “Online Account Terminations/Content Removals and the Benefits of Internet Services Enforcing Their House Rules.” The article analyzed all of the U.S. legal decisions we could find that addressed UGC publishers’ liability for terminating users’ accounts or removing users’ contents. When we finalized our dataset in early 2021, we found 62 opinions. There have been at least 15 more rulings since then.

What’s remarkable is how consistently plaintiffs have lost. No plaintiff has won a final ruling in court imposing liability on UGC publishers for terminating users’ accounts or removing users’ content. Though some recent regulatory developments in the U.S. seek to change this legal rule, those developments are currently being challenged in court and, in my opinion, will not survive the challenges.

It’s also remarkable why the plaintiffs have lost. Plaintiffs have attempted a wide range of common law, statutory, contract, and Constitutional claims, and courts have rejected those claims based on one or more of the following four grounds:

Prima Facie Elements. First, the claims may fail because the plaintiff cannot establish the prima facie elements of the claim. In other words, the law simply wasn’t designed to redress the plaintiffs’ concerns.

Contract. Second, the claims may fail because of the UGC publishers’ terms of service (called the “TOS”). TOSes often contain several provisions reinforcing the UGC publishers’ editorial freedom, including provisions expressly saying that (1) the UGC publisher can terminate accounts or remove content in its sole discretion, (2) it may freely change its editorial policies at any time, and (3) it doesn’t promise to apply its editorial policies perfectly. In the US, courts routinely honor such contract provisions, even if the TOS terms are non-negotiable and may seem one-sided.

Section 230. Third, the claims may fail because of a federal statute called “Section 230,” which says that websites aren’t liable for third-party content. Courts have treated the user-plaintiff content as “third-party” content to the UGC publisher, in which case Section 230 applies.

Constitution. Fourth, the claims may fail on Constitutional grounds. In the US, the Constitution only restricts the action of government actors, not private entities. Therefore, users do not have any Constitutional protections from the editorial decisions of UGC publishers. Instead, the Constitution protects the UGC publishers’ freedoms of speech and press, and any government intrusion into their speech or press decisions must comport with the Constitution. Accordingly, in the US, UGC publishers do not “censor” users. Instead, any government effort to curtail UGC publishers’ account termination or content removal constitutes censorship. This means the court cannot Constitutionally rule in favor of the plaintiffs.

This point bears emphasis. Any effort to force UGC publishers to publish accounts or content against their wishes would override the UGC publishers’ Constitutional protections. Unless the Supreme Court changes the law, this compelled publication is not permitted.

The Merits of UGC Publishers’ Editorial Discretion

I now turn to my second point. Giving unrestricted editorial discretion to UGC publishers may sometimes seem unfair. There is often a significant power imbalance between the “Tech Giants” and individual users, and this imbalance can leave aggrieved users without any apparent recourse for what may feel like capricious or arbitrary decisions by the UGC publisher.

I’m sympathetic to those concerns, and I hope UGC publishers continue to voluntarily adopt additional user-friendly features to reduce users’ feeling of powerlessness. However, government intrusion into the editorial process is not the solution.

When UGC publishers are no longer free to exercise editorial discretion, it means that the government hinders the UGC publisher’s ability to cater to the needs of its audience. In other words, the audience expects a certain experience from the UGC publisher, and government regulation prevents the UGC publisher from meeting those expectations.

This becomes an existential threat to UGC publishers if spammers, trolls, and other malefactors are provided mandatory legal authorization to reach the publisher’s audience despite the publisher’s wishes. That creates a poor reader experience that jeopardizes the publisher’s relationship with its audience.

If the publisher cannot sufficiently curb bad actors from overrunning the service, then advertisers will flee, users will not pay to access low-quality content, and UGC publishers will lack a tenable business model that puts the entire enterprise at risk. When UGC publishers are compelled to publish unwanted content, many UGC publishers will have to leave the industry.

Other UGC publishers will continue to publish content—just not user content because they can’t sufficiently ensure it meets their audience’s needs. In its place, the publishers will substitute to professionally-produced content, which the publishers still can fully control.

This switch from UGC to professionally-produced content will fundamentally change the Internet as we know it. Today, we take for granted that we can talk with each other online; in a future where publication access is mandated, we will talk to each other less, and more frequently publishers will be talking at us.

To have enough money to pay for the professionally-produced content, publishers will increasingly adopt subscription models to access the content (sometimes called “paywalls”), which means we will enjoy less free content online. This also exacerbates the digital divide, where wealthier users will get access to more and better content than poorer users can afford, perpetuating the divisions between these groups. Finally, professionally-produced content and paywalls will entrench other divisions in our society. Those in power with majority attributes will be the most likely to get the ability to publish their content and reach audiences; those without power won’t have the same publication opportunities, and that will leave them in a continually marginalized position.

This highlights the unfortunate irony of mandatory publication obligations. Instead of expanding publication opportunities, government-compelled online publication is far more likely to consolidate the power to publish content in a smaller number of hands that do not include the less wealthy or powerful members of our society. If the court seeks to vindicate the rights of less powerful authors online, counterintuitively, protecting publishers’ editorial freedom is the best way to do so.

Closing

I keep using the term UGC publishers, and this may have created some semantic confusion. In an effort to denigrate the editorial work of UGC publishers, they are often called anything but “publishers.” Indeed, the setup for today’s event uses several euphemisms for the publishing function, such as “content intermediation platforms” and “social network management.” (I understand there may have been something lost in translation).

The nomenclature matters a lot here. By using alternative descriptors, it downplays the seemingly obvious consequence that compelling UGC publishers’ publication decisions is government censorship. Reduced editorial freedom provides another way for the government to abuse its power to control how its citizens talk with each other.

Thank you for the opportunity to provide this input into your important efforts.

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The judges asked three questions in the Q&A:

• can Colombian courts reach transborder Internet services? [My answer: yes, if they have a physical presence in Colombia]
• can content moderation account for off-service activity? [My answer: yes, this is no different than publishers deciding the identity fo the authors they want to publish]
• must Internet services follow due process? [My answer: no, “due process” only applies to government actors].