"So I reject the notion that companies have no obligations beyond making money."

That's fair enough. But I very clearly stated not even they think otherwise.

"It is no longer acceptable for major multinational companies to simply make commercial decisions."

Really? When did this occur? And who says so?

"These companies do exercise power over free speech, and quite activity sometimes in the case of FB."

I gave a clear explanation, with reasons, for why this is not the case.

Sarah, let me first address your now two times claim that you don’t understand my final two paragraphs. Now, the very first sentence was “What WILL guide their decisions on who/what is permitted to use their services are commercial considerations.” Given your three replies have all focused on this, it sure seems they do “make sense” to you. But I am puzzled by why you have chosen to respond to words I did not use. Far from saying “companies have no obligations beyond making money," I explicitly said the opposite; that they operate “subject to any legitimate regulatory regimes they operate under, and other contractual obligations.”

After all, as you, yourself note, Youtube “has blocked access to the video in some countries, including Indonesia and India [and Egypt and Libya] as the video’s content breaches the law of those States”. Though on this point it is you who does not make sense. You switch from Youtube being the good corporate citizen complying with the laws of the markets it operate in, to criticising this move ‘before any legal order was made in Egypt or Libya’. So let me get this straight. You insist that Youtube act as a good corporate citizen, but berate it for complying with the laws of the markets it operates in. The implication being that Google had no right to obey Egyptian or Libyan laws, until ordered to do so by a court.

This is barmy. One of the reasons that few Australians don’t go to Burma and bring back case loads of heroin is because they know it is against Australian law. The implication of your reasoning is that should import this heroin until a court tells them to stop! While it is all very well for legal academics to dream of sensational court dramas, as I said in my initial post, corporate executives, major shareholders, and entrepreneurs would rather stick hot needles in their eyes. To put it simply, Google and its executives do not have the rights to free speech in Egypt and Libya that they enjoy in the United States, and they know this.

Nor did I even mention “corporate social responsibility.” I think the problem here is you might not fully grasp the complexity and intricacy that underpin “commercial considerations”. For example, you are spot on that “the notion of corporate social responsibility has gained enormous traction such that very few if any major multinationals reject it”, but ironically for precisely the opposite reasons you presume. “Corporate social responsibility” was created by publicly listed corporations precisely as a competitive strategy tool from the early 1980s. In other words, “corporate social responsibility” IS without question a factor in commercial decision-making. While it is true, there is robust debate about the strategic value of “corporate social responsibility” no corporate executive, major shareholder, or entrepreneur would deny its existence.
So your argument rests on a false distinctions when you say you “reject the notion that companies have no obligations beyond making money. Whether they think so or not.” For the CSR movement is premised on its wealth-generating potential. And let me reiterate, it is important not to conflate “commercial considerations” with merely “making money”. “Commercial considerations” involve the far complex strategic considerations over longer periods of time than the decision to place $1 million on a horse at the races.
When FB, Youtube/Google execs meet to decide how to respond to violence in Cairo and beyond, they most definitely DO place “commercial considerations” at the top of their list. But that decision-making process is very complex and nuanced involving juggling countless variables that themselves are inextricably linked, including, yes, CSR. In this case, they made a very wise commercial decision. After all, the Afghanistan state shut down Youtube altogether. Why have you not mentioned this? For this is precisely what ‘denying free speech’ means. The state, with its great forced of violence (guns, police, courts) behind it is the actor our speech needs protection from. The Americans are fortunate to have this protection.
Bizarrely, you chastise Youtube’s decision “YouTube has blocked the video in Egypt and Libya of its own accord due to the “difficult” situations in those countries, rather than any identified breach of its guidelines.” These guidelines tell users “If we remove your video after reviewing it, you can assume that we removed it purposefully, and you should take our warning notification seriously. Take a deep breath, read our Terms of Use and try to see it from our perspective.” Too right. As I have said, unless the people who uploaded that video have some contractual arrangement with Youtube, they have no right whatsoever to upload on to Youtube. It is a privilege Youtube is perfectly entitled to revoke at any time, and for any reason it wishes. In any case, those Terms of Service state:
“YouTube reserves the right to decide whether Content violates these Terms of Service for reasons other than copyright infringement, such as, but not limited to, pornography, obscenity, or excessive length. YouTube may at any time, without prior notice and in its sole discretion, remove such Content and/or terminate a user's account for submitting such material in violation of these Terms of Service.”
And even this grants no legal rights to Youtube users. So, you are in error saying “the upload can be removed in accordance with YouTube’s normal policy by legal order.” Firstly, Youtube’s removal “policy” clearly does not wait until some state’s “legal orders” demand. As Youtube correctly states, the “right to decide” is its only. How would you react if Google decided to move into other technologies, and just shut down its Youtube product altogether? It is the STATE which has legal restrictions placed on its right to arbitrarily seize/deny citizen’s property and free speech, precisely because the state has all that violent back-up, which Youtube clearly does not.

But what is really disturbing is your silence on the Muslim state actors complete rejection of not only Youtube’s free speech, but their own citizens’. The reason for this is that the Islamic world does not acknowledge freedom of speech as a right, protecting its citizens from state violence. But once again, you need to understand, nobody has a ‘right’ to use to FB, while FB has every right in the world to decide who/what gets to use its service. OTOH, Palestinians, Egyptians, Libyans, and most [non-American] Muslims do NOT the right to free speech. The reasons for this I have already noted are clearly based on The Koran and expressed in the Cairo Declaration. And even if they did have a ‘right to free speech’, they certainly do not any right to demand Mark Zuckerberg provide it for them. As my last paragraph said – the one you did not understand – the nutty splodies and lusters for beheading set up their own social media sites.

And these rejections of the right to free speech are fundamental tenets of groups you claim as victims of Youtube’s and FB “arbitration of free speech”. You deride FB’s decision to shut down a site calling for aThird Intifada, whose rallying cry included: "Judgment Day will be brought upon us only once the Muslims have killed all of the Jews," and "Paradise beckons you." Even though you state that “FB Community Guidelines prohibit hate speech”, a few sentences later you ask, “But what is Facebook’s criterion for “taking sides” regarding the political and revolutionary messages that might turn up on its site?” Well, as you, yourself already said, “hate speech” for once and “inciting violence” for another. This misty eyed adour for “revolutionary messages” is a bit creepy, which combined with the other sympathies your articles on this issue have clearly shown, is a bit of a worry.

Sarah,

"So I reject the notion that companies have no obligations beyond making money. Whether they think so or not."

While I agree with you in principle, media companies are profit seekers providing a product. I can't see how they would surrender the right to choose content on a purely commercial basis without a battle. Since they (or their management) have a right to free speech as well, that right must surely include the right to pick and choose what they publish. There seems to be a paradox here.

Applying the "externality" test to media companies might be extremely difficult.

Thanks for that Sarah. But once again can I reiterate, I am not having a go at you personally. Indeed, you should take it as a compliment that I am engaging so energetically in this to-and-fro. :) It is a sign that I have encountered somebody who is a professional, and very committed, who is a quality battering ram for my own passionately held political ideals.

My attitude towards human rights law is more one of ambivalence - scepticism maybe - than 'not rating it'. I am often torn. For example, I am so glad the Franklin Dam never got built, and that Tasmania decriminalised homosexuality. OTOH, both these decisions involved the relative harmless commonwealth invading the rights of states. But given the States had been complicit in this for decades, I found it easy to get over being conflicted.

Where you and I disagree is that I see law as offspring of politics, and not as something something separate and higher. It has taken many years of study, work, and living/working abroad to reach the political views I now hold. And they are a product of my realisation that the political/legal/social arrangements we have evolved in Australia are a godsend, which nowhere on earth comes within cooee of. Of course, it is not nirvana, but neither is the purgatory that most of the world lives in. And much of this I attribute to the fact that no other nation on earth has a Constitution with the popular and democratic legitimacy of ours. And that 'popular sovereignty' is reinforced by that other peculiar Australia civic kink - compulsory voting.

It was university study in ancient History that switched the light on. After much study of just why human organisation and cognition was revolutionised by Athenian democracy that made me really wake when I later came to study Australian legal history and Public Law. While most of the students could barely stay awake, for the first time in my life, my Aussie cultural cringe vanished, as I realised, "my god, something quite amazing has happened here, and we've still got it". In fact, I advocate that we need a referendum to slightly amend s.128 to remove Parliament's monopoly over initiating a s.128 referendum, in favour of Citizen Initiated Referenda, even if only in limited cases, such as vetoing a law passed by Parliament, but not extending to actually initiating new legislation.

I take very, very seriously the profound Australianess of s.128 of our Constitution, and compulsory voting. And while I think our [largely] common law system has served us much better than the alternatives on offer at the time, in 2012, it needs a drastic makeover, but not in the direction you agitate to take us. So, the second question on my referendum would be to allow Citizen Initated Referenda to overturn findings of law by the High Court, but only when those decisions are appellate decisions. Such decisions are inescapably ideological and political. There is nothing wrong with that. After all, somebody has to do it. But if they go too far against the civic grain, they need to be corrected. For a while I did toy with the idea of establishing a judicial layer above the current HC, which only heard appellate matters on constitutional matters. And that new court would be selected only after public grillings of their ideological stances. For example, any candidate who said she would even consider for a second that a the executive was legally bound by some international instrument, which had not been passed into domestic law, well, she would be sent packing immediately. However, after more thought I became firmly convinced that overall, our HC is something to be proud of, and enjoys such respect that I would be foolish to upset that.

It might please you to know (or perhaps baffle/appall) that I reached this position after reading Michael Kirby's appalling decision in Al-Kateb v Godwin. That a justice of the High Court of Australia could not find in Australia jurisprudence how unambiguously insupportable was the idea that Mr. Kateb could be locked up for life, that he had to scratch around the illegitimate and unaccountable scribblings of foreigners was too much for me. That was when I realised the enemy was within and sitting on the HC. Had Amanda Vanstone not acted, a s.128 referendum would have sorted that one out pretty quickly. My third referendum question would remove from the executive the power to sign any foreign treaty/convention, whose effect would give the executive more power than is provided for in the Constitution. The government would be required to submit any such instrument to a plebiscite (no need for the strict formality of a s.128 referendum) for approval.

Sure, I have studied enough of ancient Greece and Rome and the rest to realise that the more direct a democracy becomes, the more other not so laudable civic behaviours can raise its head. Reading Thucydides account of Mytilenian Debate is enough to cool the heals of even the most gung-ho radical democrat. But we are so far from that.

I hope that after this brief background, you will see more clearly where I am coming from. I am a passionate democrat, who will resist the considerable and alarming rapid growth of a faction of wannabe oligarchs in this country. Oligarchs whose lairs are overwhelmingly within Australian taxpayer-funded universities, especially their Law faculties.