Automated Law and Social Media Platforms as Private Administrative Agencies: On Amnesty International's New Report--"''Let us Breathe!': Censorship and criminalization of online expression in Viet Nam"

 

On 1 December 2020 Amnesty International released a highly critical report entitled ''Let us Breathe!': Censorship and criminalization of online expression in Viet Nam. The subject of that report was in the relationship between state authorities and Western social media platforms in the business of facilitating (and managing) discursive space online in Vietnam. In its Press Release, Amnesty noted:

Tech giants Facebook and YouTube are allowing themselves to become tools of the Vietnamese authorities’ censorship and harassment of its population, in an alarming sign of how these companies could increasingly operate in repressive countries, a new report by Amnesty International reveals today. The 78-page report, "Let us Breathe!”: Censorship and criminalization of online expression in Viet Nam”, documents the systematic repression of peaceful online expression in Viet Nam, including the widespread “geo-blocking” of content deemed critical of the authorities, all while groups affiliated to the government deploy sophisticated campaigns on these platforms to harass everyday users into silence and fear.

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“In the last decade, the right to freedom of expression flourished on Facebook and YouTube in Viet Nam. More recently, however, authorities began focusing on peaceful online expression as an existential threat to the regime,” said Ming Yu Hah, Amnesty International’s Deputy Regional Director for Campaigns. * * * In 2018, Facebook’s income from Viet Nam neared US$1 billion – almost one third of all revenue from Southeast Asia. Google, which owns YouTube, earned US$475 million in Viet Nam during the same period, mainly from YouTube advertising. The size of these profits underlines the importance for Facebook and Google of maintaining market access in Viet Nam.

The Report is more nuanced than its Press Release might suggest. Its authors admit that the baseline for much of the criticism is founded on the sometimes significant differences in political ideology, and in the understanding of the scope and practice of human rights that separate Western internationalist understandings and those of Marxist Leninist states. (e.g.,

''Let us Breathe!': , p. 16).  Yet that is hardly the principal value of this report.  Rather, perhaps the more significant element of the report focuses on the social media platforms themselves--their character as administrative organs responsible for the reliable operation of discourse that does not offend its principal stakeholders as those stakeholding communities change from place to place.  Social media platforms, then, assume a protean character, one that can change ist form to suit time, place and ruing ideology, but which preserves its position as the space within which such discourse is managed.  

The Executive Summary of the Report and my own very brief reflections follow.

1. While Vietnam serves as the focus of this report, its implications are neither limited to that state or more generally to Marxist-Leninist political orders.  It is true enough that, from a very formal de jure perspective of the clash of fundamental approaches to rights and (state) responsibilities, there is a substantial chasm between the perspectives that have developed in the West and those that have emerged in developing states and more particularly in post 1989 Marxist-Leninist states. And yet after the 2020 US Presidential elections in the United States, and considering the history of forbidden speech in the West generally, that the issue isn't one of suppression, but rather of the kind of discourse that is suppressed.  In the West there is a growing taste for the suppression of "offensive" speech which is usually cast around the contemporary forms of liberation movements approved by the state and the political culture.  These revolve around race, ethnicity, religion (but this is a special and troubling case), gender and gender identity, sexuality, and the like. Those who engage in that sort of discourse form part of what was famously described as the "basket of deplorables" of Hillary Clinton's 2016 Presidential campaign. There is less concern about social and economic class--political elites in the West still consider the poor as appropriate objects of blood sport.  In addition the West tends to interdict discourse that dredges up dangerous ghost of the past--fascism and militarism, for example, but not Soviet communism.  In Marxist Leninist states, on the other hand, taboo discourse  is both broader and to some extent equally ambiguous.  These are broad discourses that challenge the core principles of the political economic model, the vanguard role of the communist party, and which otherwise threaten social stability by injecting contestation within the social sphere rather than confining it within the institution of those organs to which political authority has been vested. 

 

2. In both cases speech is suppressed.  In one the state sits at the center and its ruling ideology at the apex.  In the other the market sits at the center, and its societal stakeholders, the consumers and producers of discourse, at the apex. In both cases, the ideas of free speech absolutism becomes a mirage.  Or rather it is understood as possible only within the boundaries of societally and politically acceptable trope, of forms and subjects of speech and in the manner in which speech and speech acts are performed. Offense becomes the core trigger.  To define offensive is to manage the content of speech and its manifestation. Globally offense has become the key principle by which not the legitimacy but the extent to which speech will be tolerated.  

 

3. This notion is inherent in the market itself--as a place that not just values but consumables (like speech) but also chooses to self reflexively construct the borders of acceptable market activity.  Offense inhibits markets and it may be excised to allow markets (that is the rate and value of the consumption of speech) to increase in value. A similar process operates in Marxist Leninist states.  But here the value is in speech contributions to social order and social progress under the guidance of the vanguard.  Civil and political speech may be offenses (and value inhibiting, that is in its power to slow the increase of the productive forces of society) where it seeks or is perceived to destabilize  the value enhancing characteristics of that order.

4. If, indeed, the issue for states--and markets based global cultures generally--is one of developing a consensus around taboo discourse, then the question posed by the Amnesty Report can be reframed.  Amnesty asks the right question but might fail to focus it effectively: the issue is not one of complicity in speech suppression by social media platforms; the question is which principles and whose authority may be legitimately applied to the suppression of discursive taboos.  And here is the real point of conflict in the Amnesty Report.  Facebook seeks to regulate itself, it is self-reflexive in the West bounded only by principles that are compelled by law or by the tastes of its consumers and producers.  In Marxist Leninist states Facebook serves as an instrumentality of the vanguard party, in a way that runs parallel to the function of the state in a Leninist political system. In both cases Facebook operates autonomously though that autonomy is  interlinked--enmeshed--in the larger regulatory environment (state or market or hybrid) in which Facebook operates.

 

5. Social media platforms, then, serve not just themselves (and express the ruling ideologies of those who "own" or control them--something that became clearer with the behaviors of the rulers of some social media platforms) but also either the governments or the markets  which control access to consumers and producers of communication. It is in this sense that one can understand discourse based social media platforms as inherently complicit (beyond their indulgence in the personal ideologies of their owners as might have occurred during the 2020 US Presidential campaigns, and no doubt for all the "right" ideologically authoritative reasons), inherently servile, spaces whose public function is to ensure that contextually relevant discursive taboos are respected. What argues about, then, is not that Facebook and Youtube serve the political interests of Vietnam (in this case) but that the set of discursive taboos enforced are incompatible with the authoritative discursive taboos in the West.  As a consequence, perhaps, a different set of accountability parameters might be more useful--as well as (to the extent that it is politically appealing) the construction of alternative venues.  But then, human communities have a very long history of developing flourishing spaces for markets for suppressed goods.  

6. It follows that Facebook and Youtube cannot help themselves.  The entangled legalities in which they operate--the public legalities of the state and the societal-economic legalities of the market--create the structures that make complicity inevitable.  Offense as a discourse taboo appears unavoidable within the privately administered platforms that serve as a delegated public space protected (by law) and utilized (by state and market).  It is not for nothing, then, that, for example, Facebook responds to criticism of ist management of the boundaries of market approved discourse by replicating quasi-judicial administrative structures (reported in From hate speech to nudity, Facebook's oversight board picks its first cases).  These are meant to provide a privatized jurisprudence that advances the legitimacy of offense, legalizes it within the private law realm of Facebook, and then articulates the prevailing community standards projected onto the private space of public discourse.  This is not complicity in effect, it is, indeed, a deep structural complicity that replicates and privatizes the impulses of administrative regulation. Where this will tae discourse--in the United States or Vietnam--constitutional principle will likely follow.

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EXECUTIVE SUMMARY

“I would like to call on Facebook to stop cracking down on accounts that circulate political content. That is the very basic right of the people,” human rights defender Nguyen Van Trang told Amnesty International after content critical of the Vietnamese government that he posted on Facebook was removed by the company in mid-2020.1

Like many Vietnamese human rights defenders, Nguyen Van Trang relies primarily on his social media platforms to share news and information related to politics and human rights in Viet Nam.2 His Facebook account has approximately eight thousand friends and followers, and he manages three Facebook pages that have more than one million followers in total.

“I have lost faith in Facebook, so I don’t post much anymore. Imagine if you spend years and years growing your Facebook account, posting and writing about your passion for democracy, but then in one easy act, Facebook just erases all the work you have done over the years. That really discouraged me,” Nguyen Van Trang explained. “We have been stripped of our ability to express our opinions. Our ability to reach the public is now very limited.”

On 21 April 2020, Facebook announced a major shift in its content moderation policy in Viet Nam. Under this policy, it has increasingly complied with the Vietnamese authorities’ repressive censorship of online expression deemed critical of the state.3 Facebook has disclosed that it agreed to “significantly increase” compliance with requests from the Vietnamese government to censor “anti-state” content in Viet Nam after concerted pressure from the Vietnamese authorities, including an enforced slowdown of Facebook services within the country.4 The Vietnamese government routinely deems peaceful and legitimate criticism of the government or information related to human rights abuses as “anti-state”, even though this type of expression is protected under international laws and standards.5

The decision by Facebook may have far-reaching global consequences, as other repressive governments around the world may now seek to apply a similar strategy by forcing Facebook and other technology companies to restrict online expression. As one industry observer noted: “How Google and Facebook deal with Viet Nam could offer clues to how they will protect user privacy and handle calls for censorship in other authoritarian regimes around the world.”6

Facebook’s decision has marked a sea change in the social media landscape in Viet Nam. Once the great hope for the expansion of freedom of expression in the country, social media platforms are fast becoming human rights–free zones, where any peaceful dissent or criticism of the Vietnamese government is liable to be censored and where users seeking to post such content face the risk of being suspended or otherwise barred from the platforms. Facebook’s latest Transparency Report on Viet Nam – the first since it revealed its policy of increased compliance with the Vietnamese authorities’ censorship demands – offers a glimpse into

1 Amnesty International interview with Nguyen Van Trang, 9 July 2020.
2 Amnesty International interview with Nguyen Van Trang, 9 July 2020.
3 James Pearson, “Exclusive: Facebook agreed to censor posts after Vietnam slowed traffic – sources”, Reuters, 21 April 2020, uk.reuters.com/article/uk-vietnam-facebook-exclusive/exclusive-facebook-agreed-to-censor-posts-after-vietnam-slowed-traffic-sources- idUKKCN2232K3 (hereinafter: J. Pearson, “Exclusive: Facebook agreed to censor”).
4 J. Pearson, “Exclusive: Facebook agreed to censor”.
5 Johannesburg Principles on National Security, Freedom of Expression and Access to Information (Johannesburg Principles), Principle 7, http://www.article19.org/data/files/pdfs/standards/joburgprinciples.pdf
6 Wayne Ma, “Facebook and Google Balance Booming Business with Censorship Pressure in Vietnam”, The Information, 10 December 2019, www.theinformation.com/articles/facebook-and-google-balance-booming-business-with-censorship-pressure-in-vietnam (hereinafter: W. Ma, “Facebook and Google”).

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the scale of this shift, revealing a 983% increase in content restrictions based on local law as compared with the previous reporting period.7

Vietnamese YouTube users have also complained of increasing censorship of content which is deemed sensitive by the Vietnamese authorities. One human rights defender and YouTuber, An*, told Amnesty International: “YouTube is trying to prevent people from telling the truth, even when people are just reporting fact ... This affects everyone in society, including victims of human rights violations.”8

An* described to Amnesty International how the increasing restrictions imposed by technology companies at the behest of the Vietnamese authorities are having a chilling effect on the right to freedom of expression in Viet Nam, which in turn is having a major impact on the promotion and protection of human rights in the country: “It is unjust. It is impacting the people who are advocating for democracy and human rights in Viet Nam. Now we have to self-censor.” An* told Amnesty International: “They should not restrict content that expresses the truth. Once they do that, they just become a tool for the government to control information and expression.”9 Speaking on behalf of other Vietnamese human rights defenders who have been silenced, her message to technology companies operating in Viet Nam was clear: “Let us breathe!”10

This report – based on interviews with 31 Vietnamese human rights defenders and activists, including former prisoners of conscience and their family members, lawyers, journalists and writers – documents the systematic repression of the right to freedom of expression online in Viet Nam. It reveals the persecution, harassment and abuse of human rights defenders and activists engaged in online expression by the Vietnamese authorities and analyzes the increasingly complicit role of technology giants Facebook and Google in the censorship of peaceful dissent and expression in the country.

The right to freedom of expression is guaranteed by Viet Nam’s constitution and the International Covenant on Civil and Political Rights (ICCPR), which Viet Nam has ratified. The UN Human Rights Council has affirmed that the same rights people have offline must also be protected online, and that states should create and maintain an “enabling online environment” for the enjoyment of human rights.11 Nonetheless, there are multiple offences in the country’s Criminal Code, such as Articles 117 and 331, that empower the authorities to prosecute people for engaging in the legitimate exercise of their right to freedom of expression online.

Companies – including Facebook and Google – have a responsibility to respect all human rights wherever they operate, including throughout their operations and supply chains. According to international human rights standards, Facebook and Google should respect freedom of expression in their content moderation decisions globally, regardless of the existence of local laws that muzzle freedom of expression. While companies sometimes point to the difficulties posed by conflicting obligations under local and international legal standards, they should be guided by the UN Guiding Principles on Business and Human Rights, which state: “The responsibility to respect human rights is a global standard of expected conduct for all business enterprises wherever they operate. It exists independently of States’ abilities and/or willingness to fulfil their own human rights obligations and does not diminish those obligations. And it exists over and above compliance with national laws and regulations protecting human rights.”12

This report reveals that Facebook and Google play an increasingly prominent and complicit role in the Vietnamese authorities’ systematic repression of freedom of expression online in Viet Nam. Amnesty International interviewed 13 Vietnamese human rights defenders and activists who have had their social media content censored even though the content they posted was protected under international human rights law.

The increasing censorship of political expression on social media in Viet Nam is occurring against a background in which the rapid expansion of internet access has profoundly changed Vietnamese society and opened up unprecedented space for the free exchange of information and ideas, including on human rights and political issues. In the context of strict censorship applied to all forms of traditional publication in Viet Nam, the internet has become a key source of independent news and information in which people can raise their voices, express opinions and engage in political debate.

7 Facebook, Transparency, Content Restrictions, Vietnam, transparency.facebook.com/content-restrictions/country/VN 8 Amnesty International interview with An (pseudonym), 9 July 2020.
9 Amnesty International interview with An (pseudonym), 9 July 2020.
10 Amnesty International interview with Nguyen Van Trang, 9 July 2020.

11 UN Human Rights Council, The promotion, protection and enjoyment of human rights on the Internet, UN Doc: A/ HRC/38/L.10/Rev.1 (2018).
12 Commentary to Principle 11 of the UN Guiding Principles on Business and Human Rights (UNGPs).

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As Trinh Ba Phuong, a land rights activist, told Amnesty International: “The internet has made everyone a journalist and every Facebook page now becomes a news outlet. The government can no longer hide their wrongdoing from the public, which will ultimately bring more justice and fairness to our society.”13

But the story of social media in Viet Nam is not only about expanded space for freedom of expression – it is big business, too. Viet Nam has become a highly lucrative market for international technology companies. According to industry experts, it is now the biggest country by revenue for Facebook and Google in Southeast Asia.14 In 2018, Facebook’s income from Viet Nam neared $1 billion – almost one third of all revenue from Southeast Asia. Google earned US$475 million in Viet Nam during the same period, primarily based on YouTube advertising.15 The size of these profits underlines the importance of maintaining market access for Facebook and Google in Viet Nam. Increasingly, however, it must be asked: market access at what cost?

While the internet has provided an unprecedented opportunity for the Vietnamese people to express and exchange political opinions, it has also left users at increased risk of harassment, intimidation, physical assault and prosecution by state authorities bent on eliminating dissent. In addition to the content censorship implemented by technology companies, this report documents how human rights defenders and activists in Viet Nam – as well as their families – face significant threats to their freedom and safety due to their online activism. On the morning of 30 August 2018, Nguyen Ngoc Anh, an aquatic engineer and prominent human rights defender engaged in online activism, was arrested shortly after leaving his home in Ben Tre province. Shortly after his departure, dozens of police officers and local militia members broke into his house in search of “anti-government documents” and began shouting at his wife, terrifying their three- year-old son.16

Because of his Facebook activity, Nguyen Ngoc Anh was charged under Article 117 of the 2015 Criminal Code for “making, storing, or spreading information, materials or items for the purpose of opposing the State of the Socialist Republic of Viet Nam”, a charge that is not in compliance with Viet Nam’s international human rights obligations.17 In June 2019, he was sentenced to six years in prison. Nguyen Ngoc Anh’s case exemplifies the harsh repression faced by bloggers, human rights defenders and online activists in Viet Nam in the digital era.

Viet Nam today is one of the most repressive environments in the world with regards to freedom of expression online. At the time of publication, Amnesty International recognized at least 170 prisoners of conscience imprisoned in Viet Nam, the highest number since Amnesty International began monitoring prisoners of conscience in the country. Among this number, 69 are imprisoned on the basis of the peaceful exercise of their right to freedom of expression online (see Annex A). Among the 27 prisoners of conscience newly imprisoned in 2020, 21 (78%) were targeted on the basis of online expression.

This report documents the experiences of dozens of Vietnamese human rights defenders and activists who operate under the constant threat of arbitrary arrest and lengthy imprisonment simply for peacefully expressing themselves online. The widespread use of the Criminal Code to suppress legitimate online expression underlines the need for international technology companies to adopt globally applicable content moderation standards and policies that are explicitly based on – not merely informed by – international human rights laws and standards. Technology companies’ current approach to content moderation based on local laws simply facilitates the repressive and arbitrary demands of governments seeking to suppress the right to freedom of expression.

Bloggers, human rights defenders and other activists who engage in online expression in Viet Nam are not only faced with the constant threat of arbitrary arrest and prosecution, they also endure the menace of brutal physical assault, insidious surveillance and intimidation, harassment of family members and online abuse and bullying. These extra-legal tactics are sometimes perpetrated by agents or supporters of the Vietnamese authorities or the Communist Party of Viet Nam (CPV), but generally by unidentified, plainclothes individuals. Remedies and accountability for such abuses and ill-treatment are elusive to the point of non-existence – human rights defenders who complain to the authorities after being beaten or harassed are rarely, if ever, taken seriously. In respect of the cases documented in this report, Amnesty International could find no evidence of credible investigations conducted by the police or any cases in which those suspected to be responsible for violations and abuses of the rights of human rights defenders had been brought to justice.

Several of the human rights defenders interviewed by Amnesty International described being severely beaten by police while they were held in police custody. Others described being ambushed by groups of

13 Amnesty International telephone interview with Trinh Ba Phuong, 11 February 2020. 14 W. Ma, “Facebook and Google”.
15 W. Ma, “Facebook and Google”.
16 Amnesty International telephone interview with Nguyen Thi Chau, 7 September 2019. 17 Amnesty International telephone interview with Nguyen Thi Chau, 7 September 2019.

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unidentified, armed assailants and beaten to unconsciousness in full view of onlooking police officers who failed to intervene. Many reported suffering serious injuries, including broken ribs, collarbones and hands.

This report further documents the activities of Viet Nam’s “cyber-troops” known as “Force 47” – a military unit established with 10,000 people whose mission is to “fight against wrong views and distorted information on the internet” by harassing and intimidating human rights defenders and activists on social media platforms.18 The report additionally documents the similar activities of the more informal “public opinion shapers” of “Du Luan Vien”, a volunteer troll army made up largely of activists of the Communist Party of Viet Nam.

These state-sponsored groups subject human rights defenders and individuals who express critical views online to death threats and vicious psychological abuse, leaving some activists in fear for their lives. They further undertake coordinated reporting campaigns that often trigger restrictions on the content and suspensions of the accounts of their targets. In this report, Amnesty International has documented and analyzed dozens of reports from activists across Viet Nam about their experiences of being targeted by cyber-troops and public opinion shapers in the last two years.

As noted by the UN Human Rights Committee: “Freedom of opinion and freedom of expression are indispensable conditions for the full development of the person. They are essential for any society ... Freedom of expression is a necessary condition for the realization of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights.”19

The systematic repression of the right to freedom of expression online in Viet Nam requires urgent remedial action. The Vietnamese authorities must ensure a safe and enabling environment for human rights defenders and all those engaged in the peaceful exercise of their human rights both on- and offline. The authorities must immediately and unconditionally release all prisoners of conscience held solely for the peaceful exercise of their human rights and protect human rights defenders, activists and others who express themselves online from physical attacks, threats and online abuse. They must additionally launch thorough, independent, transparent and effective investigations into all allegations of such abuses and bring those responsible to justice.

Technology companies including Facebook and Google must urgently overhaul their content moderation policies to ensure that they are firmly grounded in international human rights standards. These reformed policies must meet the highest standards of transparency and accountability, with meaningful participation from users and civil society. The reformulation of these policies will provide the companies with firm ground to stand on as they seek to resist the repressive censorship demands of the Vietnamese authorities and other governments around the world.

The US government must also take immediate steps to regulate technology companies domiciled there in order to ensure they respect human rights throughout their global operations in line with the UN Guiding Principles on Business and Human Rights and ensure that individuals who have suffered human rights abuses due to the actions of US firms have access to effective remedies.