Twitter’s Responsibility to Suspend Trump’s, and Rouhani’s, Accounts, Part 2

[Tara Van Ho is a Lecturer at the School of Law at the University of Essex. This is the second part of a two-part post. The first can be found here.]

In the first part, I explained why Trump and Rouhani’s tweets during the Iranian-US crisis constitutes propaganda for war. In this part, I will explain that Twitter has a human rights responsibility to prohibit such propaganda and ultimately to suspend Trump and Rouhani for at least some time.

Defining Twitter’s Business and Human Rights Responsibilities

The UN Guiding Principles on Business and Human Rights (UNGPs) are currently the more authoritative guidance on the international responsibility businesses have to respect human rights. They call for businesses to:

1. respect human rights, meaning refrain from interfering in their realization;

2. define and implement their human rights responsibilities on the minimal basis of several international treaties, including the ICCPR;

3. take steps to identify, mitigate, and, if need be, remediate the negative impacts on human rights caused, contributed to, or directly linked to its business operations.

These responsibilities operate independently of any state’s (or President’s) ability or willingness to abide by these standards. Businesses are not required to breach domestic law, but they are not excused from their responsibilities simply because domestic law allows for different conduct. While the US attached a reservation to its ICCPR ratification, the US does not require Twitter to implement an expansive First Amendment definition for free speech that would allow propaganda for war. As such, Twitter should be incorporating into its policies and practices the Article 20 prohibition on propaganda for war. A failure to do so undermines its commitment to the realization of other human rights.

The UNGPs also recognize that ‘conflict-affected areas’ carry a greater, inherent risk of human rights violations and businesses therefore need to exercise additional, more routine and more robust caution. They are to respect IHL and to take action to ensure “they do not exacerbate the situation” (Principle 23). The term ‘conflict-affected areas’ is broader than situations of armed conflict and is not necessarily a geographic designation. The heightened responsibility applies before, during and after an armed conflict when the dangers and effects of the conflict are present and when a business has the potential to do or exacerbate short- and/or long-term damage to human rights in such a manner that it is not easily mitigable or remediable. To realise this responsibility, businesses should be paying attention to the news, experts, and their own governments – doing their due diligence – to understand when a situation has changed in such a way that a conflict is imminent, when it has erupted, and when it has concluded but remains fragile. Given the nature of propaganda for war, it is particularly important for a platform like Twitter to consult IHL experts on the complexity of the issues and to help identify when a discussion about war moves beyond protected speech into prohibited conduct.

While Twitter is not located directly in Iraq, its cyber presence in the US, Iraq, and Iran, and its use by the leaders of Iraq and the US to issue threats over the conflict means that it is effectively operating in the conflict-affected area. It needs to monitor, on an ongoing basis, developments on its platform to ensure it is not being used to exacerbate the conflict. In other words, its responsibility to prohibit propaganda for war generally, and these specific instances, is enhanced, not lessened, where the threat of realization of a conflict is significant.

Twitter’s Responsibility to Suspend the Accounts

In order to meet its responsibilities under the UNGPs, Twitter needs to take proactive steps to ensure the platform is not used for propaganda for war. Currently, it fails to do that, at least with popular political figures. Twitter has expressed “a global commitment” to free expression but with Rules that prohibit users from “threaten[ing] violence against an individual or a group of people” or glorifying such violence. Tweets that breach these standards are removed and accounts can be suspended. While the Rules do not contain an explicit prohibition on propaganda for war, the Trump and Rouhani tweets discussed in Part 1 would seemingly violate the prohibitions on violent threats and glorification of violence.

Yet, Twitter employs a “public interest” exception that allows for verified accounts of currently elected or appointed government leaders, and candidates for political office, with more than 100,000 followers to violate its Twitter rules. Twitter justifies its approach by insisting, “we recognize that sometimes it may be in the public interest to allow people to view Tweets that would otherwise be taken down. We consider content to be in the public interest if it directly contributes to understanding or discussion of a matter of public concern.” This is a dangerous approach and one that does not align with Twitter’s international human rights responsibilities. The UNGP do not allow businesses to define human rights in a vacuum for a reason. The international community has already agreed on the rights and limitations appropriate when rights come into conflict with the public interest. The ICCPR’s Article 20 prohibition stands in contrast to the ICCPR’s Article 19(3) balancing terms for freedom of expression generally because the international community has determined that propaganda for war serves no public interest and cannot be favourably balanced. Twitter is ignoring that universal understanding in order to serve its own judgment, and ultimately its own corporate profit.

Twitter’s responsibility is also not alleviated by the newsworthiness of these figures but may be enhanced by it. Allowing those with a significant political following to avoid community standards amplifies their message. The virality of a post by a political user with over 100,000 followers is likely greater than one sent by a random Joe Smith with 53 followers. This increases, rather than reduces, the danger to the public caused by the Presidents’ tweets. Jenny Domino has already discussed in this blog the UN’s Independent International Fact-Finding Mission on Myanmar criticism of Facebook for failing to respond to hate speech that gave rise to incitement to genocide on its platform. Similarly, while IHRL attempts to provide great protection to the news media, the International Criminal Tribunal for Rwanda convicted members of the news media because their language and the nature of their coverage rose to the level of conspiracy to commit and incitement to genocide.

It is important to protect the ability of news organizations to report on threats of war, but a free press is also expected to give context, asking questions and providing context that can help the public to examine, understand, and explain the situation. Twitter does not do this. There are no contextual statements or analysis. As such, in contrast to Twitter’s claims, these tweets do not contribute to an ongoing discussion of public concern but undermine them. And by failing to monitor or respond to the Presidents’ tweets when they would with other users, they are not merely serving as conduit for the news but they are taking decisive action that allows its products to be used in such a way that transforms the company for a content host to a content creator, facilitating and encouraging propaganda for war. That certain news organisations similarly seem willing to be used merely to stage propaganda for war does not excuse Twitter’s responsibility, but instead suggests that those organizations also need to re-examine their business and human rights policies and practices.

David Kaye, the UN Special Rapporteur on Freedom of Opinion and Expression, has rightly expressed concern over businesses unilaterally determining what content should be censored. He notes (para 44) that they are “typically ill equipped to make determinations of content illegality.” But where the law is clear, asking a business to apply the law is not the same as asking them to interpret it. Kaye’s caution therefore loses its urgency. In that sense, asking Twitter to prohibit propaganda for war is no different than asking it to take steps to stop the distribution of child pornography.

Twitter’s Escalating Responsibility

Where Twitter sets out rules that a user breaks, it will normally be understood as merely ‘directly linked to’ the harm caused. But, it can end up ‘contributing to’ a harm, and incurring a responsibility to provide remedies, if it fails to take adequate measures to stop its products from being used to harm human rights. Given the severity of potential harms we are discussing from Trump’s actions – both the commencement of an armed conflict and the commission of war crimes – Twitter’s failure to act could quickly incur a responsibility to provide remedies to a large number of people harmed by the Presidents’ conduct. Alternatively, Twitter could use the leverage it has, suspend both accounts temporarily, and encourage the two leaders to rethink their own social media use and language. In doing so, Twitter would live up to its human rights responsibilities (and perhaps do the world a favor).