Cyberlaw Reading Group Session 27 of the Renmin Law and Technology Institute was held in Room 725, Mingfa Building, Renmin University of China on May 27, 2019. At this reading session, faculty and students delivered thematic presentations and held discussions centering on two papers: The People, Rules, and Processes Governing Online Speech and Free Speech in the Algorithmic Society: Big Data, Private Governance, and New School Speech Regulation.

Presenter: Zhang Ding, Master of Law in Jurisprudence, Peking University

Free Discussion:

Xiong Wencong, Associate Professor, Minzu University of China Law School:

      In my view, a crucial issue is speech filtering. This kind of mechanism can filter out infringing content, yet it also risks suppressing speech protected by the freedom of expression. The current Tort Liability Law establishes a counter-notice system, which to some extent serves to protect freedom of speech and expression. Nevertheless, introducing filtering mechanisms may entirely strip users of the chance to publish their content at all. I am keen to find out how foreign scholars tackle this challenge. If an academic journal rejects my submission, can I file a lawsuit against it for violating my freedom of speech and expression? The answer is undoubtedly no. Does the result change when we replace the journal with an online platform? I believe the answer is still negative. Just because Platform A refuses to post my work does not mean Platform B, Platform C or other platforms will follow suit. So long as the article is high-quality, competing platforms will have clear incentives to publish valuable content to gain an edge in market competition. Problems will nevertheless emerge when a single website obtains a dominant market position and monopolizes the marketplace of speech, or when private websites act as agents of governmental regulation. This explains why American legal scholars coined the concept of the "new governor". The First Amendment to the U.S. Constitution only restricts state action and does not apply to purely private websites. However, through an expansive interpretation, monopolistic private platforms or private platforms acting as state agents can be categorized as "new governors". This approach addresses the difficulty in legal application and effectively broadens the scope of situations to which the First Amendment applies.

Liu Xiaochun, Executive Director of the Center for Internet Rule of Law, University of Chinese Academy of Social Sciences：

      The first paper is descriptive. In my view, the second one also endeavors to delineate the power structures between different actors. Content moderation is a typical example of such a power structure: platforms gain legitimacy to regulate speech and content pursuant to content regulatory rules, whose underlying legitimate source lies in the state’s power to supervise individuals’ online content. Another power structure revolves around freedom of speech, which serves as the legal basis for individuals to resist speech restrictions imposed by the government or platforms. In the internet sphere, there exist many other power structures centered on information control. For example, personal information rights furnish individuals with a legal basis to counter both political and commercial entities. From this standpoint, I have long argued that the protection of personal information should not be treated merely as an instrument, but as an end in itself.

Shen Weiwei, Ph.D., University of Pennsylvania：

      The first paper adopts an anthropological research methodology. Collecting such data is extremely challenging: researchers have to locate the right interviewees, persuade them to speak openly, and secure their consent to publish their statements afterward. The so-called new governors referenced in the text refer to major internet giants. The platforms and relevant technologies analyzed in the paper are ubiquitous in our daily lives. Focusing on platforms as private actors, the paper explores the underlying logic and concrete practices of platform governance, offering rare and valuable empirical research material. 

      The second paper is written by Balkin. His remarkable achievement lies in constructing a complete First Amendment theoretical system tailored to online speech. This article elaborates on one component of that theoretical framework for online speech. Most notably, apart from the concept of fiduciary duty he put forward in his 2016 paper, this work introduces the notion of algorithmic nuisance.

Wu Xuan:

      The tripartite relationship set forth in the second paper is the key to grasping regulation within networked society. Nowadays, as the online sphere becomes ever more closely integrated with the physical world, online conduct is no longer confined to virtual space and exerts profound influences on people’s offline lives. Against this backdrop, internet platforms stand out in their status and functions, and in practice exercise certain public power functions. We therefore need to consider two core questions: first, where does this power held by platforms derive from? Second, who supervises platforms? There are two analytical approaches to the first question. The first attributes platform power to delegation from public authorities (the government). Thanks to platforms’ technical advantages, the state’s regulatory capacity — covering legislation, law enforcement and adjudication — lags behind internet development. Governments thus either proactively delegate regulatory responsibilities or impose mandatory liability, requiring platforms to moderate online speech and conduct. The second source lies in user agreements and contracts. To access platform services, users voluntarily or involuntarily surrender partial freedoms and submit themselves to platform regulation. The second question is far more complicated. As mentioned in the first paper, all the regulatory tools and measures adopted by platforms operate in an opaque manner. Why should we assume that platforms’ moderation of speech is inherently superior to state regulation? American legal scholars have long been alert to state suppression of individual expression, which is why the First Amendment is frequently invoked as a restraint on state power. In the online sphere, platforms command power that is no weaker than that held by the state. They can even steer and regulate users’ speech through algorithms without users’ awareness. Importantly, platforms are not entirely neutral; they possess their own commercial interests and normative stances. How can we guarantee that platform content moderation will always be impartial? If impartiality cannot be assured, what legitimate ground justifies subjecting individuals to such platform regulation?

Ding Xiaodong, Associate Professor, Renmin University of China Law School:

      Let me supplement some foundational theories concerning freedom of speech. Legal academia generally identifies three core theories underpinning American free speech jurisprudence. First, the marketplace of ideas. This theory posits that competition among diverse speeches and thoughts will allow truth to prevail. Second, self-governance. It maintains that free speech empowers citizens to voice their viewpoints and access essential information. Third, individual autonomy theory. It holds that freedom of expression facilitates personal self-determination. Examining platform speech moderation through the lens of these three frameworks reveals legitimate justifications for such regulation. First, under the marketplace of ideas theory: if conventional physical markets necessitate regulatory constraints, the marketplace of ideas similarly requires certain limits on speech. Second, under the self-governance theory, reasonable rules governing the circulation and reception of speech are essential for citizens to express authentic public viewpoints and obtain credible information. Third, the individual autonomy theory aligns closely with privacy protection and data governance. Without adequate safeguards for privacy and personal data, individuals cannot attain genuine self-determination.

      In addition, we may compare the philosophies governing speech regulation in China and Western countries, as China’s internet regulatory framework differs fundamentally from its Western counterparts. In China, on one hand, the theories upheld by the Party and the government actually encourage free expression and public oversight. On the other hand, speech regulation here is philosophically grounded in ethics-based governance, which requires online speech to conform to political and social ethics. This is clearly reflected in the algorithmic content moderation practiced by platforms such as Toutiao. From this perspective, extending Balkin’s reasoning one step further reveals striking parallels with ethics-based regulation. Balkin invokes nuisance doctrine to address potential algorithmic harms inflicted by corporations, embodying a preventive regulatory approach. As a regulatory strategy, this framework demands that ordinary online speech abide by shared ethical standards. In this way, expression can fully realize its diverse positive functions while minimizing its detrimental side effects.

Yang Ruiqi, Graduate Student, Minzu University of China:

      Countless producers and users of information products across the globe need to be matched, and multiple factors ultimately determine what specific information is exchanged at any given moment. At the current stage, both consumers of information products and platforms adopt the same approach: letting users identify the messages they prefer to receive on their own. Therefore, from a consumer-oriented perspective, platforms act as the crucial instrument that governs the scope of information accessible to users. This filtering obligation reflects humanity’s core inclination: to stay alert to the ever-expanding power of platforms and strive to strike a balance among three competing interests—protecting copyright holders, advancing technological innovation, and satisfying information consumers. Safeguarding the interests of copyright owners and the public good always occupies the highest value hierarchy in a society governed by the rule of law.

Editor:Xu Liuya

Reviewer: Zhu Peiwen