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Moral Rights

Can Facebook Really Censor its Users?

Censorship

Facebook has officially updated its abusive content policy, and you’ve got an artist to thank.

The largest social media network in the world, which boasts hundreds of millions of users across the globe, has come to function as a primary news source in addition to social network. Many users often post news articles or other related content in an effort to distribute their daily musings or events they find worth sharing. That’s exactly what writer Tom Egeland did when he shared his article discussing the photographs of Nicholas Ut.

Ut is the photographer that took the now-infamous photos of a 1972 Napalm bombing during the Vietnam War. Terror of War won a Pulitzer Prize that year, and Egeland was revisiting the photograph as a demonstration of how the image changed the ‘history of warfare.’ However, since the image contains graphic content – namely, a young nude girl running away from the attack – Facebook decided to take the image down.

Though many users protested, Facebook continued to remove the image anytime it was re-posted, until finally, the social media giant received so much backlash that they decided to update their content policy altogether. But do First Amendment laws actually allow Facebook to institute these kinds of practices? Is it really that important to follow Facebook’s content policy and terms of service, if we know they’re just going to change it if we complain? Read on to learn more.

Freedom of Speech: A Useful Primer

Generally speaking, the first amendment codifies censorship based on the right of free speech. The First Amendment’s constitutional rights guarantee freedom of expression by prohibiting Congress from restricting the press or individuals to speak freely. When censorship occurs, it’s because there’s a suppression of words, images, or ideas that someone has deemed “offensive” and has therefore tried to suppress.

Artists, writers, filmmakers, and photographers are often the subject of censorship efforts since there is often an impassioned, counterculture message attached to an artist’s work. Even in the U.S., where freedom of speech is rigorously protected, artists have often run into trouble: think Alan Ginsberg’s censorship and obscenity trial over his infamous poem, Howl, or the overturning of the ban of Vonnegut’s Slaughterhouse Five in Michigan schools.

However, when interpreting the First Amendment, the operative word is Congress. The First Amendment does not prohibit private citizens or entities from refusing to disseminate or allow content that they have deemed offensive. It’s every individual citizen’s right to refuse offensive content.

censor
This Pulitzer Prize-winning image is at the center of a heated debate about censorship and freedom of speech after Facebook removed it from a Norwegian Authors Facebook page. Nick Ut/AP from NPR, “All things Considered.”

Facebook, as a private entity, has every right to create a policy that limits the type of content users can post online. Bullying and harassment, direct threats, and sexual violence and exploitation are all behaviors prohibited by Facebook.

Facebook puts the onus on its users to report these types of violations. It’s created a system in which users can report the offending content, and then Facebook will automatically take it down, no questions asked. However, there’s nothing keeping the offending user from reposting the content, meaning Facebook’s abusive content policy can easily amount to a merry-go-round.

Which brings us to our next point: what’s the point of instituting these policies, if users aren’t exactly held to them?

The Politics of User Policies

With its abusive content policy, Facebook has essentially built in rules that its users are agreeing to follow. “But wait,” you might say, “I didn’t agree to anything.” Actually, yes you did. By simply being a user of Facebook, you’re agreeing to their policies and terms of service. A website’s policies and terms of service are generally considered a contract between the user and the website owners. Since they are often tediously long and technical, most people don’t read them or understand what they’re agreeing to. In fact, you’ve likely been there multiple times before, clicking ‘agree’ without having read any of the things you’re agreeing to, and you do that because it’s a prerequisite to be able to use the site.

You see, websites need to outline those terms and conditions in order to protect themselves, and their business model simply won’t allow for someone to refuse to agree to their terms. Likewise, even though the terms are extensively broad, it doesn’t necessarily mean that you’ll be held accountable to them in every single case.

Consider our Terror of War example: Facebook’s decision to remove the offending content, because it contained nudity, received overwhelming backlash from the public at large. Egeland, the writer in question, protested the practice so much so that his editor in chief responded with an open letter to Facebook founder Mark Zuckerberg about the problem with his censorship of the image, and the letter went viral – especially after the subject of the photo, Kim Phuc, also condemned their decision. Even the prime minister of Norway chimed in, claiming the practice amounted to inexcusable censorship.

All the hubbub caused Facebook to update its abusive content policy to reflect that simple nudity isn’t enough to get an image removed, particularly if the image provides some sort of social commentary. For example, Facebook has recently permitted users to upload images of themselves breastfeeding, after a controversial backlash from nursing mothers called into question whether it’s acceptable to censor one of the most natural acts a human being can perform. In the same vein, Facebook recently decided to allow women to post post-mastectomy photos in an effort to spread awareness about breast cancer.

In sum, Facebook’s terms and policies can be interpreted quite loosely because it’s been proven time and again that if the people revolt, the policy will come down. Though they don’t necessarily have to codify that within their actual terms and policies, Facebook has proven that they’re willing to make exceptions in order to avoid a backlash from users.

A Note About Copyright Provisions in User Policies

There are some provisions found within most website policies and terms of service that should be adhered to more closely. Copyright provisions and terms that give websites certain rights over your content. For example, Facebook has broad copyright and licensing language, including the right to use material without specific permission, as well as a perpetual license for that material so they can re-use the same image years later, even if the users have deactivated their accounts.

Most artists would find that provision problematic since it gives Facebook a right over your work that you may not necessarily want it to have. On the one hand, we’ve already reviewed how it’s unlikely that they’ll ever actually attempt to enforce that provision since it’s unlikely that users would be responsive to that type of use. On the other hand, you are technically bound by the agreement vis a vis Facebook’s terms of service.

At the very least, it’s important to understand that there is some risk involved. If you’re the conspiracy theory type, then you may want to refrain from posting any content you wouldn’t want Facebook to have broad rights over but based on what we’ve learned, it’s unlikely that Facebook policies, even those related to censorship, would impede artists from posting whatever they want, free from too much ownership or oversight.

 

About the author

Nicole Martinez

Nicole is a writer and law school graduate with a dedicated focus and passion for the arts, and a particular interest in Latin American art and history. Nicole has extensive experience working with art galleries and museums in Buenos Aires and Miami, and explores cultural landscapes across the Americas through her writing.

You can e-mail Nicole at nicole@orangenius.com.

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