An image by artist Tiffany Cole that was removed by Instagram for “sexual solicitation.” (used with permission)

In 2018, a group of leading digital rights minds gathered to create the Santa Clara Principles on Transparency and Accountability in Content Moderation. Along with an open letter to Facebook’s (now Meta) founder and CEO Mark Zuckerberg, the document centered human rights and outlined three demands to social media companies: Notice, Appeals, and Numbers. The creators argued that more specificity, dialogue, and transparency were needed, and urgently. Astoundingly, many companies — including Instagram, Youtube, Reddit, and Twitter — promised to comply, and many have even followed through on at least part. The original document was expanded in 2020 with an open forum for input from groups around the world, resulting in “SCP 2.0.” New demands included attention to cultural competence, government involvement, integrity, and understandability. Input came from 18 countries, and numerous interested groups and individuals — but not a single artist. 

The absence of artists’ input in the Santa Clara Principles is not a matter of exclusion, but rather a missed opportunity by the art community. Admitting that the absence of artists was an “oversight,” one of the creators, Emma Llansó, Director of the Center for Democracy and Technology’s Free Expression Project, says “we need stronger connections between artist communities and digital rights groups.” 

This gap between digital rights and the art world could be a result of confusion among art defenders. Historically, censorship of art has been centered on governmental decisions. In these cases, the art community rallied. Today, artists are most often facing censorship in digital spaces, which seems to present a harder rallying point for the art community. Private companies like Meta are protected by the First Amendment, and their content moderation is considered free speech. But as the saying goes, with great power comes great responsibility, and the Santa Clara Principles were created to urge companies to use that power for human rights. As such, that responsibility has recently taken the form of navigating governmental censorship online, something that has been increasingly worrisome globally, and that, as Eric Goldman of the High Tech Law Institute warns, “poses extreme danger to artists, who are often top targets for government censorship.”

And here is where things have gotten twisted of late. The Santa Clara Principles explicitly request that “states should not transform the Santa Clara Principles directly into legal mandates” because, somewhat ironically, forcing them on companies could make matters worse. As the creators put it, “this is especially important in the current regulatory climate in which there are numerous efforts around the world to regulate the content of social media platforms.”

“Unfortunately,” says Goldman, lawmakers “have ignored that request, and that’s a development that should scare the artist community.” 

In recent legal challenges in Florida, California, and Texas, the government has attempted to force social media companies to change their moderation practices in the name of “anti-censorship” and “digital due process.” While this might seem positive on the surface, their implementation makes the risk of government censorship of art far greater. If the government weaponizes the recommendations made in the Santa Clara Principles, companies will be compelled to change their decision-making to please fickle regulators, resulting in broader suppression of expression. For example, a law known as FOSTA (or Allow States and Victims to Fight Online Sex Trafficking Act) has made platforms liable for any perceived sex trafficking content users post. While intended to protect vulnerable communities, it has actually driven sex trafficking further underground and encouraged widespread censorship of bodies and expression online. This law was championed by notoriously censorious groups like the NCOSE. The result has been that platforms have felt the need to purge their spaces of any posts or images that could be construed as illicit, including art. If companies are forced to comply with heavy-handed laws like the ones recently put forth, they will be compelled to moderate at the whim of the government.

While the art community may have been woefully unaware of their creation, artists should be some of the greatest advocates for social media companies to adopt the Santa Clara Principles voluntarily. Encouraged to stand strong on human rights, their power for good could grow exponentially, as PEN America CEO Suzanne Nossel describes, “Such an undertaking would give companies a concrete, principled basis on which to resist government overreach.” 

Regarding the future development of the Santa Clara Principles, Llansó says she “would love to see the community around the Principles expand even further, since so many different kinds of speakers and creators are calling for transparency and accountability from tech companies. I would encourage artists who have feedback to get in touch!”

Now is the time to work together, become aware, and recognize that artists are an important part of the digital rights discussion. If we don’t insert ourselves into the conversation, we will be left out of it, to our peril.

Emma Shapiro is an American artist and activist based in Spain. She is the creator of the international body equality project Exposure Therapy and is the Editor-at-Large for the Don’t Delete Art campaign....