![]() ![]() Consequently, they also manifest themselves in private legal relationships, because there, social norms can be concretised, i.e. Often, those norms are implicit and culturally presupposed. behavioural norms that aren’t standardised but that will lead to a reaction by other members of society because they agree on a common notion of unwanted or even harmful speech, even if it's not forbidden by law. There are other rules that affect the public discourse such as social norms, i.e. Eventually, legal norms only reflect the need for action by the legislator and the social context. Social norms can play a role in the creation of legislation, including criminal law provisions that restrict freedom of expression, because they naturally go beyond codified legal norms. Any law regulating speech will therefore be subject to strict scrutiny. In the US, the scope of protection of freedom of speech is very broad and the legislator is not allowed to regulate speech since the First Amendment protects the citizens from the coercive power of the state. Notwithstanding high standards and strict requirements by constitutional proviso 2, they can intervene. In Europe, most constitutions allow the legislator to draw limits on speech, for example by criminal law. Generally, what falls in the scope of application is protected, as long as it is not declared illegal and what is ‘legal’ speech depends on the scope of protection. If content is considered borderline but still legal, what level of protection does it deserve? Freedom of expression is a human right, indispensable to democracies and protected by national constitutions and international treaties. The definition of borderline speech shows how thin the line is between protecting a deliberative public sphere even if the public debate is uncomfortable on the one hand, and protecting a "civilised" public debate on the other. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. Regarding borderline speech, we are confronted with two problems: (1) Where to position this type of expression in a legal framework? (2) How restrictive may other norms than laws be for freedom of expression? According to the European Court of Human Rights freedom of expression:Īpplies not only to “information” or “ideas” that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. The problem of harmful online content and the struggle to contain it might come from the fact that social norms, which have an effect in the analogue even when unexpressed, might not unfold equally in the digital sphere. When it comes to freedom of expression, not only laws can have a speech-restricting effect: social norms and other private rules define what should not be said (Noelle-Neumann, 1991, p. Perhaps an accessible comparison is the presumption of innocence: the defendant is innocent until proven guilty, but he might already be considered guilty by society because he is a suspect. ![]() ![]() If an expression of opinion is not illegal but categorised as ‘borderline’, it means it is very close to being illegal but it is not. The law defines the limits of legality, for speech too. Under certain legal provisions, an action might be forbidden or even punishable. While this combination might seem familiar in many social situations, the general principle that an action cannot be ‘fully categorised’ is quite unusual in jurisprudence. 1 It suggests that it is very close to one thing while still being part of another and probably not describable without both. Generally, borderline means ‘being in an intermediate position or state: not fully classifiable as one thing or its opposite’. The debate about ‘borderline’ content on social media platforms is about a categorisation of speech that is not covered by the barriers to freedom of expression but is considered inappropriate in the public debate. How open can communication be if it is almost exceeding normative limits? And who gets to define these limits? This text aims at giving a few insights on borderline speech and why the concept behind it is highly problematic. Social media platforms will remove or algorithmically downgrade content, or suspend or shadow-ban accounts because of borderline speech. While this anecdote will probably make you smile because of its absurdity (Facebook later confirmed the algorithm was supposed to block ‘nudity’), the underlying systematic sanctioning of content that might potentially breach community standards won’t. In late September 2020, the Facebook algorithm removed a picture of onions because of the 'overtly sexual manner' they were positioned. ![]()
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