Who decides what you can say on Facebook? New doctoral thesis on freedom of expression on social media

Freedom of expression is one of the most central rights protected in constitutions worldwide. Constitutional protection of freedom of expression traditionally applies primarily to the state, limiting the ability of public authorities to restrict individuals' speech. However, in today's society, privately owned social media platforms have significant power over what speech individuals can disseminate and access. Through their content moderation, popular platforms such as Facebook and X set limits on what can and cannot be said in public discourse.

“My aim in this project has been to investigate what mechanisms constitutional free speech law offers to deal with this new situation where privately owned global companies, and not just the state, have the power to determine the limits of freedom of expression in society. I have studied how the existing constitutional protection of freedom of expression has been adapted to social media. The thesis also discusses how to ensure comprehensive protection of freedom of expression also in the future," says Anni Carlsson.

To gain a broad understanding of the issue, Anni has compared how the constitutional protection of freedom of expression has been adapted to social media in a number of different legal systems. Within the framework of the project, she has studied US, German, and Swedish law, as well as how the issue has been dealt with under the European Convention on Human Rights and in EU law.

The comparative analysis has highlighted fascinating similarities and differences in the different legal systems' approaches to freedom of expression on social media.

“As an example of interesting differences, the main issue in the United States has been whether social media platforms can invoke their right to freedom of expression. For example, is Facebook using its freedom of expression when it chooses to remove a post? In Europe, the focus has been more on balancing the competing interests of platforms and users. In Germany, for example, courts have ruled that the constitutional free speech guarantees also apply to the relationships between social media platforms and their users. Sweden stands out with its detailed regulation of freedom of expression in the Freedom of the Press Act and the Fundamental Law on Freedom of Expression. Incorporating social media into this Swedish constitutional freedom of expression framework has proved challenging.

So, how should the future constitutional protection of freedom of expression deal with the extensive power of social media platforms over the boundaries of free speech?

“I argue that the most important constitutional tools are the horizontal effect of freedom of expression and positive obligations. ʹOrdinaryʹ legislation can also play an important role, and it will be particularly interesting to see how the new EU platform regulation, the Digital Services Act, affects different free speech interests on social media," says Anni.

"Regardless of the legal approach chosen, I argue in this thesis that it is necessary to balance different free speech interests against each other. The user posting content on a platform, other users, the platform itself, and society have different free speech interests that are relevant when regulating social media platforms’ content moderation. In this thesis, I present guidelines for balancing these different free speech interests against each other. For example, I argue that democracy should be used as a guiding value when balancing these interests. On a more general level, I argue that social media platforms must be regulated through democratic legislative processes and that we cannot rely on their self-regulation to ensure comprehensive protection of freedom of expression also in the future.