Online companies allowed to censor

NEW YORK | Rant all you want in a public park. A police officer generally won’t eject you for your remarks alone, however unpopular or provocative.

Say it on the Internet, and you’ll find that free speech and other constitutional rights are anything but guaranteed.

Companies in charge of seemingly public spaces online wipe out content that’s controversial but otherwise legal. Service providers write their own rules for users worldwide and set foreign policy when they cooperate with regimes such as China’s. They serve as prosecutor, judge and jury in handling disputes behind closed doors.

The governmental role that companies play online is taking on greater importance as their services - from online hangouts to virtual repositories of photos and video - become more central to public discourse around the world. It’s a fallout of the Internet’s market-driven growth, but possible remedies, including government regulation, can be worse than the symptoms.

Dutch photographer Maarten Dors met the limits of free speech at Yahoo Inc.’s photo-sharing service, Flickr, when he posted an image of an early-adolescent boy with disheveled hair and a ragged T-shirt, staring blankly with a lit cigarette in his mouth.

Without notice, Yahoo deleted the photo on grounds that it violated an unwritten ban on depicting children smoking. Mr. Dors eventually convinced a Yahoo manager that - far from promoting smoking - the photo had value as a statement on poverty and street life in Romania. Yet another employee deleted it again a few months later.

“I never thought of it as a photo of a smoking kid,” Mr. Dors said. “It was just of a kid in Romania and how his life is. You can never make a serious documentary if you always have to think about what Flickr will delete.”

There are uncontroversial reasons for providers to censor, such as stopping spam, security threats, copyright infringement and child pornography, but many cases aren’t clear-cut, and balancing competing needs can get thorny.

“We often get caught in the middle between a rock and a hard place,” said Christine Jones, general counsel with service provider GoDaddy.com Inc. “We’re obviously sensitive to the freedoms we have, particularly in this country, to speak our mind, [yet] we want to be good corporate citizens and make the Internet a better and safer place.”

In Mr. Dors’ case, the law is fully with Yahoo. Its terms of service, similar to those of other service providers, gives Yahoo “sole discretion to pre-screen, refuse or remove any content.” Service providers aren’t required to police content, but they aren’t prohibited from doing so.

Although mindful of free speech and other rights, Yahoo and other companies say they must craft and enforce guidelines that go beyond legal requirements to protect their brands and foster safe, enjoyable communities - ones where minors might be roaming.

Guidelines help “engender a positive community experience,” one to which users will want to return, said Anne Toth, Yahoo’s vice president for policy.

Heather Champ, community director for Flickr, said the company crafts policies based on feedback from users and trains employees to weigh disputes fairly and consistently, though mistakes can happen.

“We’re humans,” she said. “We’re pretty transparent when we make mistakes. We have a record of being good about stepping up and fessing up.”

But that underscores another consequence of having online commons controlled by private corporations. Rules aren’t always clear, enforcement is inconsistent, and users can find content removed or accounts terminated without a hearing. Appeals are solely at the service provider’s discretion.

First Amendment protections generally do not extend to private property in the physical world, allowing a shopping mall to legally kick out a customer wearing a T-shirt with a picture of a smoking child.

With online services becoming greater conduits than shopping malls for public communications, however, some advocacy groups think the federal government should guarantee open access to speech. That, of course, could also invite meddling by the government, the way broadcasters now face indecency and other restrictions that are criticized as vague.

At least when a court order or other governmental action is involved, “there’s more of a guarantee of due-process protections,” said Robin Gross, executive director of the civil-liberties group IP Justice. With a private company, users’ rights are limited to the service provider’s contractual terms of services.