Companies must understand how their product/service access and use policies impact the freedom of individuals and groups to publicly voice diverse viewpoints, operate businesses and nonprofits consistent with a wide array of beliefs, and participate equally in the marketplace. While it’s common for companies to require customers/users to comply with certain standards as a condition of using their products and services (e.g., prohibiting certain illegal or unethical practices such as using a product/service to commit fraud or violate intellectual property rights) businesses must guard against including terms that could be used to unduly restrict stakeholders’ speech or expressive activity.
Relevant Policies or Practices:
Any policy or requirement that conditions access/use of a product or service on adherence to certain standards of conduct or speech. Depending on the company and industry, this might include:
Policies that could be used to condition/restrict use of a product or service for unreasonably broad, undefined reasons.
Steps to Identify and Mitigate Risk:
Eliminate unclear or imprecise restrictions on what customers or users can say or do.
Unclear: A term is unclear if it (1) is so vague that an individual of ordinary intelligence is forced to guess at its meaning, or (2) invites arbitrary and discriminatory enforcement due to a grant of unfettered discretion or lack of objective standards. Terms that lack clarity and grant broad discretion threaten free speech because they have the potential to become a means of suppressing particular viewpoints.
Imprecise: A term is imprecise if it fails to narrowly target the specific harmful activity it is designed to prohibit. Imprecise terms imperil free speech because they risk prohibiting substantial amounts of speech beyond the harmful activity that the regulation aims to prohibit.
Avoiding unclear and imprecise language will significantly reduce the risk of enforcing terms of service (TOS), content moderation policies, and other similar policies in a manner that undermines freedom of expression. The table below provides guidance to help companies avoid terms that pose a serious risk of suppressing speech and/or expressive activity.
Good TOS/Content Policy
|Bad TOS/Content Policy|
|TOS/Content Policy Examples (next page)|
Text with strikethrough and highlighted in yellow = Original verbiage that is unclear and/or imprecise.
Text highlighted in green = Verbiage added or changed to improve or clarify original text.
Text NOT highlighted and without strikethrough = Acceptable verbiage.
= Policy contains unacceptable verbiage.
= Acceptable policy.
We don’t sell certain content including content that we determine is hate speech, promotes the abuse or sexual exploitation of children, contains pornography, glorifies rape or pedophilia, or advocates terrorism, or other material we deem inappropriate or offensive.
You may not use the PayPal service for activities that:
…. 2. relate to transactions involving … (f) the promotion of hate, violence, racial or other forms of discriminatory conduct, other forms of intolerance that is discriminatory or the financial exploitation of a crime, ….
a. By agreeing to these Terms, you’re agreeing that, when using the Services, you will follow these rules:
…. vii. Don’t engage in activity that is harmful to you, the Services or others (e.g., transmitting viruses, stalking, posting terrorist or violent extremist content, communicating hate speech, or advocating violence against others).
We prohibit content that makes violent threats against an identifiable target. Violent threats are declarative statements of intent to inflict injuries that would result in serious and lasting bodily harm, where an individual could die or be significantly injured, e.g., “I will kill you.”
Dehumanizing individuals or groups by calling them subhuman, comparing them to animals, insects, pests, disease, or any other non-human entity.
The below table includes terms that are inherently subjective and prone to overbroad application, such that any use of these terms in a company’s policies, regardless of definition, poses a significant danger to customer’s/seller’s/creator’s/user’s freedom of expression and freedom of religion or belief (FoRB).
|Discriminatory (speech)||*Not credible|
|Discourteous||Over the line|
|Fake News||*Unsubstantiated claims|
|*False/Fraudulent||*Generally accepted practices of the Internet community|
|Gross exaggeration||**Brand damage/brand damaging activities|
|Good taste||Violates or harms public order or morals|
*These terms may be acceptable if they refer to commercial activity or describe product/service offerings.
**Social risk and brand damage policies are not per se unclear or imprecise, however they can be used to restrict expression if not carefully defined.
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