Empty Promises: Recent Measures to Safeguard Human Rights Defenders Lack Effective Enforcement on Online Platforms

I. Introduction

In the wake of the Hamas attack on October 7, 2023 and the subsequent Israeli attacks on Palestinians, social media giant Meta suppressed upwards of 1,050 Facebook and Instagram posts by Palestinians and their supporters who decried human rights abuses.[1] This is one current example of how online platforms fail to protect human rights defenders (“HRDs”) online. In hopes to prevent more situations where HRDs suffer suppression, the United States (the “U.S.”) and the European Union (the “EU”) released joint guidance for online platforms to “prevent, mitigate, and provide remedy for attacks targeting [HRDs] online.”[2] Prior to the joint guidance’s announcement in March 2024, the Biden Administration published guidelines to support HRDs in November 2021.[3] The Administration’s guidelines targeted U.S. diplomats and failed to address social media platforms’ contribution to the suppression and physical harm of HRDs.[4]

Finally, this past January, several senators introduced the Human Rights Defenders Protection Act, which seeks to protect HRDs “by enhancing the capacity” of the U.S. government to “prevent, mitigate and respond” when HRDs are targeted.[5] This bill lacks an enforcement mechanism requiring social media platforms to protect HRDs. Both the joint guidance and the bill are not sufficiently robust due to their lack of enforcement tools for social media platforms to protect HRDs. The U.S. government must create standards enforceable by law for social media companies to (1) publicly disclose their content review and moderation processes, and (2) establish transparent appeal procedures for content take-downs.[6]

II. Four of the Six Most-Used Social Media Platforms are U.S.-Based Companies

Social media usage is increasingly widespread. In 2023, 4.9 billion people use social media across the world.[7] By 2027, that number is expected to grow by about 19 percent.[8] The six most used social media platforms are: Facebook (with 3 billion monthly active users), YouTube (2.5 billion), WhatsApp (2 billion), Instagram (2 billion), TikTok (1.5 billion), and WeChat (1.3 billion).[9] Facebook, Inc.—rebranded as Meta Platforms, Inc. in 2021—owns and operates Facebook, WhatsApp, and Instagram.[10] Meta is a U.S. corporation headquartered in California.[11] YouTube, owned by Google’s parent company Alphabet Inc., is another U.S. corporation headquartered in California.[12] Lastly, WeChat and TikTok are both Chinese-based companies.[13] TikTok, while a U.S. subsidiary incorporated in the U.S., is owned by ByteDance, a Beijing-based company.[14]

Social media users are not beholden to a single platform; most users engage with “six to seven platforms every month.”[15] As social media platforms have become pervasive, people use these virtual spaces to communicate all sorts of topics, including exposing human rights abuses. Since the majority of the most popular social media platforms are U.S.-based, the U.S. must spearhead the effort to safeguard those who defend human rights on these platforms.

III. Who Are Human Rights Defenders and Why Do They Need Protection?

HRDs are people who “act to promote or protect human rights in a peaceful manner.”[16] To be considered a HRD, one must act peacefully and “accept the universality of human rights” as outlined in the Universal Declaration of Human Rights.[17] A HRD need not be correct in their argument to be a rightful defender; the “critical test” is whether the person’s concerns “fall within the scope of human rights.”[18] HRDs are often trade unionists, journalists, lawyers, and advocates of a myriad of causes including (but not limited to) the rights of women, indigenous peoples, and children.[19] State and non-state actors target HRDs through online surveillance, harassment, disinformation, doxing, and suppression on online platforms.[20] Every year, hundreds of HRDs are murdered; between 2015 and 2019, more than 1,300 HRDs were killed.[21] These killings and other forms of retaliatory violence disincentivize HRDs to continue their work.[22]

The U.S. and EU align their definition of HRDs with the UN Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (the “Declaration on Human Rights Defenders”). In Articles 1, 5, 6, 7, 8, 9, 11, 12, and 13, the Declaration provides specific protections to HRDs. Some of these protections include: the right to seek protection of human rights (Art. 1), the right to unhindered access to and communication with non-governmental and intergovernmental organizations (Art. 5), and the right to develop and discuss new human rights ideas and principles and to advocate their acceptance (Art. 7).[23] The Declaration on Human Rights Defenders is not legally binding.[24] While not binding, the Declaration contains rights that “enshrined in other legally binding international documents,” like, for example, the International Covenant on Civil and Political Rights (the “ICCPR”).[25] Article 19 of the ICCPR gives “everyone” the “right to freedom of expression,” including the “freedom to seek, receive and impart information and ideas of all kinds” through the “media of his choice.”[26] The U.S. ratified the ICCPR in 1992, making it legally binding on the U.S.[27]

The U.S. and the EU created the joint guidance in response to the “rapid growth” of threats against HRDs on online platforms.[28] The online threats that HRDs face often “pave the way” for physical human rights violations, such as “beatings, killings, enforced disappearances, and arbitrary detention.”[29] Particularly, online threats and physical attacks disproportionately impact HRDs from marginalized groups because they “experience multiple and intersecting discriminations.”[30] Online platforms, says the U.S. and the EU, must “leverage their resources and influence to reinforce respect for human rights.”[31] As such, the U.S. and EU released a joint guidance, which includes ten actions that online platforms can take to protect HRDs.[32]

IV. The Joint Guidance Lacks Any Enforcement Mechanism

The ten recommendation actions are as follows: first, online platforms should commit to an HRD protection policy and integrate it throughout their operations.[33] Second, they should employ comprehensive “risk assessments” that identify risks to HRDs that could occur on their platforms.”[34] These risks should be made public.[35] Third, online platforms should provide “ongoing and transparent dialogue” with networks of HRDs, legal experts, and civil society representatives.[36] Fourth, they should have a “comprehensive implementation plan” for their HRD protection policy, containing internal roadmaps and benchmarks.[37] Fifth, online platforms should fully resource and staff “human rights, trust and safety, and fact-checking functions” and train current staff on how to “identify and address risks to HRDs.”[38]

Sixth, online platforms should consider regional nuances by forming “local language capacities.”[39] Seventh, they should provide safety tools that enable HRDs “to quickly secure or disable their accounts and/or optional enhanced privacy features.”[40] Eighth, online platforms should implement “effective, accessible, secure, and responsive incident reporting channels” for HRDs.[41] Ninth, they should ensure that HRDs have “access to redress and appeals mechanisms” when HRDs report harassment.[42] Tenth and finally, online platforms should “monitor and evaluate efficacy of HRD protection efforts” and make public reports on findings.[43]

The U.S. and EU assert that these recommendations do not “impose or supersede requirements” under U.S. or EU law.[44] The recommendations align with prior commitments by the U.S. and EU. For example, the U.S. committed to guarantee that the Internet strengthens “democratic principles and human rights and fundamental freedoms” in a global political commitment called the Declaration for the Future of the Internet.[45] Similarly, the recommendations reflect the key principles laid out in the EU’s Digital Services Act, which regulates online platforms to stop illegal online activities and the spread of disinformation.[46] Representing the world’s “first digital regulation” that holds online platforms accountable for their content, the Digital Services Act’s new rules began to apply on February 17, 2024.[47]

The joint guidance merely provides suggestions to online platforms; it does not penalize online platforms for failing to heed the guidance. To effectively protect HRDs on online platforms, recommendations are not enough. Instead, legally-enforceable standards must be established through legislation. Currently, a bill to protect HRDs is before Congress.[48]

V. The Human Rights Defenders Protection Act Also Lacks Any Enforcement Mechanism

Senator Ben Cardin introduced the Human Rights Defenders Protection Act on January 31, 2024 to protect HRDs “who face reprisals” for their work by bolstering the U.S. government’s ability to “prevent, mitigate, and respond” when such cases occur.[49] The bill finds that the U.S. lacks “adequate measures to prevent and respond to cases in which…private companies contribute to attacks on [HRDs].”[50] It also calls out the U.S. for, while possessing many tools to prevent perpetrators from harming HRDs, it deploys those tools “unevenly and without clear connections to a broader strategic framework.”[51]

Despite the bill’s criticism of the current U.S. policy towards HRDs, the legislation itself fails to adequately address online platforms that target and suppress HRDs. In fact, it entirely lacks tools to enforce protection of HRDs on social media platforms. The bill merely states, “It shall be the policy of the [U.S.]…to engage with the private sector [including social media companies] to respect, support, and when possible, protect [HRDs] and prevent human rights violations” (emphasis added).[52] The bill does not clarify what “engage” means or if it requires anything at all. And, by stating “when possible,” the bill gives the private sector a way out from protecting HRDs. This language is not robust enough to counter suppression of HRDs on online platforms.

Despite these inadequacies, the bill does require that the U.S. government establish a “Global Strategy for Human Rights Defenders,” which could eventually include some mandatory obligations by online platforms.[53] However, that is not ideal given the uncertainty. The sponsors of the Human Rights Defenders Protection Act should contemplate ways to require social media companies to protect HRDs.

Standards enforceable by law that compel social media platforms to better protect HRDs must be included in a HRDs law. Perhaps, as an amendment to the bill, a provision should be added that requires social media companies (1) to publicly disclose their content review and moderation processes, and (2) to establish appeal proceedings for content take-downs.[54] First, requiring online platforms to publicly disclose their content review and moderation processes allows HRDs and the greater public to evaluate whether those processes are breaking the law, to advocate for better processes, and to bring lawsuits. Second, the amendment should mandate that social media companies establish “transparent appeals processes for challenging decisions to remove, or refusals to remove, flagged content.”[55] In the appeal process, online platforms must establish a heightened level of review in “crisis-ridden or ‘sensitive’ countries,” where HRDs are especially at risk. A transparent appeals process is “the only way to effectively ensure that content-moderation policies are applied in a manner that is narrow and proportionate to the actual risk of harm.”[56]

VI. Conclusion

While Palestinian HRDs suffer from Meta’s content take-downs, they are not alone in being silenced and harmed by online platforms: Kashmir HRDs,[57] Black Lives Matter HRDs,[58] Uyghur Muslims HRDs,[59] and Burmese HRDs.[60] HRDs act peacefully to promote or protect human rights.[61] Increasingly, they face online threats that social media companies have failed to protect against.[62] Three recent initiatives to bolster protections for HRDs (i.e., the Biden Administration’s guidelines in November 2021, U.S.-EU joint guidance in March 2024, and the Human Rights Defenders Act which currently is before Congress) all lack adequate enforcement tools to require social media companies to protect HRDs.[63] Instead of suggestions (like the joint guidance) or non-specific language (like in the bill), HRDs facing online threats need a legally-enforceable piece of legislation that mandates social media companies (1) to publicly disclose their content review and moderation processes, and (2) create transparent appeal proceedings for content take-downs.[64] When that happens, HRDs will possess greater capacity to expose human rights abuses throughout the world and to pressure governments to protect vulnerable persons.

[1] Meta’s Broken Promises: Systematic Censorship of Palestine Content on Instagram and Facebook, Human Rights Watch (Dec. 21, 2023), https://www.hrw.org/report/2023/12/21/metas-broken-promises/systemic-censorship-palestine-content-instagram-and.

[2] U.S. Dep’t of State Media Note, United States and European Union Release Joint Guidance for Online Platforms on Protecting Human Rights Defenders Online (Mar. 11, 2024), https://www.state.gov/united-states-and-european-union-release-joint-guidance-for-online-platforms-on-protecting-human-rights-defenders-online/.

[3] U.S. Dep’t of State, Guidelines for U.S. Diplomatic Mission Support to Civil Society and Human Rights Defenders (Nov. 2021), https://www.state.gov/wp-content/uploads/2021/11/Human-Rights-Defenders-Guidance.pdf.

[4] Id.

[5] Human Rights Defenders Protection Act, S. 3705, 118th Cong. (2024).

[6] Moderating Online Content: Fighting Harm or Silencing Dissent?, UNHRC (July 23, 2021), https://www.ohchr.org/en/stories/2021/07/moderating-online-content-fighting-harm-or-silencing-dissent (see section called “Five Actions for a Way Forward”); Richard Ashby Wilson & Molly K. Land, Persecution of Human Rights Defenders on Social Media: What to Do About It, Just Security (June 6, 2019), https://www.justsecurity.org/64422/persecution-of-human-rights-defenders-on-social-media-what-to-do-about-it/ (see section called “Three Methods for Smarter Enforcement of Content Policies”).

[7] Belle Wong, Top Social Media Statistics and Trends of 2024, Forbes (May 18, 2023), https://www.forbes.com/advisor/business/social-media-statistics/.

[8] Id.

[9] Stacy Jo Dixon, Most Popular Social Media Networks Worldwide as of January 2024, Ranked by Number of Monthly Active Users, Statista (Feb. 2, 2024), https://www.statista.com/statistics/272014/global-social-networks-ranked-by-number-of-users/.

[10] Mike Isaac, Facebook Renames Itself Meta, N.Y. Times (Oct. 28, 2021), https://www.nytimes.com/2021/10/28/technology/facebook-meta-name-change.html.

[11] Meta Platforms, Inc. (META), Yahoo! Finance, https://finance.yahoo.com/quote/META/profile (last visited Apr. 8, 2024).

[12] Alphabet Inc. (GOOG), Yahoo! Finance, https://finance.yahoo.com/quote/GOOG/profile (last visited Apr. 8, 2024).

[13] WeChat, Yahoo! Finance, https://finance.yahoo.com/company/we-chat?h=eyJlIjoid2UtY2hhdCIsIm4iOiJXZUNoYXQifQ==&.tsrc=fin-srch (last visited Apr. 8, 2024).

[14] Lily Kuo & Annabelle Timsit, What to Know about TikTok Owner ByteDance as U.S. Considers Possible Ban, Wash. Post (Mar. 13, 2024), https://www.washingtonpost.com/world/2024/03/13/who-is-tiktok-owner-bytedance/.

[15] Bella Wong, supra note 7.

[16] About Human Rights Defenders, UNHRC, https://www.ohchr.org/en/special-procedures/sr-human-rights-defenders/about-human-rights-defenders (last visited Mar. 30, 2024).

[17] Id.

[18] Id.

[19] U.S.-EU, Recommended Actions for Online Platforms on Protecting Human Rights

Defenders Online 3 (Mar. 11 2024), https://www.state.gov/wp-content/uploads/2024/03/HRD-Guidance_Joint_Updated-_-Accessible-3.12.24.pdf [hereinafter “Recommended Actions”].

[20] Id.

[21] Mary Lawlor, (Special Rapporteur on the Situation of Human Rights Defenders), Final Warning: Death Threats and Killings of Human Rights Defenders, 4, U.N. Doc. A/HRC/46/35 (Dec. 24, 2020).

[22] S. 3705, 118th Cong. § 2(4) (2024).

[23] Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, 3-6, U.N Doc. A/Res/53/144 (Mar. 8, 1999); see Declaration on Human Rights Defenders, UNHRC, https://www.ohchr.org/en/special-procedures/sr-human-rights-defenders/declaration-human-rights-defenders (last visited Mar. 30, 2024).

[24] UNHRC, Commentary to the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (July 2011), https://www.ohchr.org/sites/default/files/Documents/Issues/Defenders/CommentarytoDeclarationondefendersJuly2011.pdf; see U.S. Dep’t of State, United States Guidance for Online Platforms on Protecting Human Rights Defenders Online 3 (Mar. 18, 2024), https://www.state.gov/wp-content/uploads/2024/03/United-States-Guidance-for-Online-Platforms-on-Protecting-Human-Rights-Defenders-Online-1.pdf (The Biden Administration states that the U.S. is “committed to the Declaration on Human Rights Defenders.”).

[25] UNHRC Commentary, supra note 24.

[26] G.A. Res. 2200 A (XXI), International Covenant on Civil and Political Rights (Dec. 16, 1966).

[27] S. Treaty Doc. No. 95-20 (1992).

[28] Recommended Actions, supra note 19; European Union Strategic Communication, Le Service Diplomatique de l’Union européenne, EU – U.S. Release Joint Guidance for Online Platforms on Protecting Human Rights Defenders Online (Mar. 11, 2024), https://www.eeas.europa.eu/node/439264_fr.

[29] Recommended Actions, supra note 19, at 3.

[30] Id.

[31] Id. at 4.

[32] Id.

[33] Id. at 5.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id. at 6.

[40] Id.

[41] Id.

[42] Id.

[43] Id.

[44] Id. at 4.

[45] White House Press Release, A Declaration for the Future of the Internet (Apr. 2022), https://www.whitehouse.gov/wp-content/uploads/2022/04/Declaration-for-the-Future-for-the-Internet_Launch-Event-Signing-Version_FINAL.pdf.

[46] European Commission, The Digital Services Act: Ensuring a Safe and Accountable Online Environment, European Union, https://commission.europa.eu/strategy-and-policy/priorities-2019-2024/europe-fit-digital-age/digital-services-act_en (last visited Mar. 31, 2024).

[47] Id.

[48] S. 3705, 118th Cong. (2024).

[49] U.S. Senate Committee on Foreign Relations Press Release, Chair Cardin Introduces Legislation to Protect Human Rights Defenders Worldwide (Jan. 31, 2024), https://www.foreign.senate.gov/press/dem/release/chair-cardin-introduces-legislation-to-protect-human-rights-defenders-worldwide.

[50] S. 3705, 118th Cong. § 2(12) (2024).

[51] Id. at § 2(13).

[52] Id. at § 4(3).

[53] Id. at § 5.

[54] Moderating online content, supra note 6; Richard Ashby Wilson & Molly K. Land, supra note 6.

[55] Id.

[56] Id.

[57] Social Media Giants Accused of “Silencing” Kashmir Voices, Al Jazeera (Oct. 1, 2021), https://www.aljazeera.com/news/2021/10/1/kashmir-report-accuses-us-social-media-giants-of-censorship.

[58] TikTok Press Release, Vanessa Pappas (TikTok US General Manager) & Kudzi Chikumbu (Director of Creator Community), A Message to Our Black Community (Jun. 1, 2020), https://newsroom.tiktok.com/en-us/a-message-to-our-black-community.

[59] Anna Fifield, TikTok’s Owner is Helping China’s Campaign of Repression in Xinjiang, Reports Finds, Wash. Post (Nov. 28, 2019), https://www.washingtonpost.com/world/tiktoks-owner-is-helping-chinas-campaign-of-repression-in-xinjiang-report-finds/2019/11/28/98e8d9e4-119f-11ea-bf62-eadd5d11f559_story.html.

[60] Alexandra Stevenson, Facebook Admits It Was Used to Incite Violence in Myanmar, N.Y. Times (Nov. 6, 2018), https://www.nytimes.com/2018/11/06/technology/myanmar-facebook.html.

[61] About Human Rights Defenders, supra note 16.

[62] Recommended Actions, supra note 19; European Union Strategic Communication, Le Service Diplomatique de l’Union européenne, EU – U.S. Release Joint Guidance for Online Platforms on Protecting Human Rights Defenders Online (Mar. 11, 2024), https://www.eeas.europa.eu/node/439264_fr.

[63] Recommended Actions, supra note 19; Guidelines for U.S. Diplomatic Mission, supra note 3; S. 3705, 118th Cong. (2024).

[64] Moderating online content, supra note 6; Richard Ashby Wilson & Molly K. Land, supra note 6.