Over the last several years, social media platforms have evolved from mere communication applications to consequential social impact drivers used by about 4.6 billion subscribers globally including everyday people, traditional media, businesses, politicians, governments, civil society, and even terrorists. Courts around the world have even classified social media as integral to the exercise of the right to freedom of expression - a right protected under the First Amendment as well as by International law. And just this month, an international human rights court in West Africa delivered a landmark decision about access to Twitter.
Twitter, which has a reach of more than 465 million people, has emerged as a hotbed for political discussion and engagement. As the platform’s popularity grows and its uses diversify, there are questions about the company and governments’ responsibilities to uphold international standards of freedom of expression in relation to access to Twitter and its content. Instances from former US President Trump using the platform to announce major policy moves, to the government of Nigeria completely banning the platform during a time of heavy protests and criticism have emphasized the importance of addressing Twitter’s role in the right to freedom of expression. And recent judicial decisions in the United States and abroad have started to do just that.
In the United States, former President Trump, revolutionized the use of Twitter for politics and governance in a manner that heightened the company’s role from passive moderator to active enforcer of its community guidelines and rules. In this new role and in the wake of the disgraceful January 6, 2021, insurrection, Twitter permanently banned Trump for breaching its Glorification of Violence policy. Facebook and Google also banned Trump, who then sued the social media companies for breaching his First Amendment right to free speech.
On the other side of the world, in June 2021, Nigeria’s government ordered an indefinite ban on access to Twitter two days after President Buhari’s post, deemed to incite violence, was pulled down by the company for breaching its abusive behavior policy. In addition to the ban, Nigeria’s attorney general threatened to prosecute any person using a Virtual Private Network (VPN) to access the site. The ban was subsequently lifted after seven months.
At the time of the ban, Nigerians were still reeling from the violent government repression of the previous year’s #EndSARS protests that captured newspaper headlines and social media timelines across the globe. It was clear that the government was banning access to Twitter in an effort to restrict free speech and expression. Civil society and individual Twitter subscribers sued the Nigerian government before the Economic Community of West African States (ECOWAS) Community Court of Justice – an international human rights court – demanding that the government lift the ban and restrain from arresting anyone using VPNs in the meantime. Our organization, Robert F. Kennedy Human Rights, participated in the case as amicus curiae.
The ECOWAS Court on July 14 confirmed that Nigeria’s actions were indeed a violation of the human right to freedom of expression. The Court explicitly stated that access to social media is a human right and very relevant to “the enjoyment of the exercise of the right to freedom of expression.” This is the first time any international court has explicitly conferred human rights status on access to social media platforms, and it’s especially emblematic in an era when government-ordered internet shutdowns are becoming a common tool of repression. Though the right to freedom of expression is not absolute, governments must abide by international law and standards when restricting free expression.
The ECOWAS Court decision does not change Twitter’s role in relation to free speech and expression. Only governments have the legal obligation to protect freedom of speech, including by not unlawfully restricting access to social media. U.S. domestic law supports this position. In the Trump suit, his lawyers argued that social media companies acted as “state actors” in banning him from the platforms, but the Court dismissed this claim, and it’s expected that appellate courts will do the same. While social media companies such as Twitter do not share the legal obligation to protect human rights, they do have the responsibility to respect human rights.
As social media continues to gain increasing relevance to civil life, people should feel empowered to know they have a right to express themselves on these platforms, and this is a right governments around the world have an obligation to respect and protect. Social media companies, on the other hand, have the responsibility to recognize their role in and impact on the exercise of human rights and refine their policies to comply with international standards and ensure the safety of their users.
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