A Revolution for Small Print: Using Human Rights to Modernize Terms of Service of Internet Companies

No service? I'm exploring how to improve terms of 

service of Internet companies [Former passport control 

point at the Buchs, Switzerland, railway station]

(c) Kettemann, 2013

I'm in Paris next week for the first Internet&Jurisdiction Observatory meeting. The workshop is devoted to the question "What is the Geography of Cyberspace?" and we'll assess cross-border Internet, national jurisdictions and the quest for appropriate frameworks. 

At the workshop I'll present some ideas related to private and public spaces online and the international legal limits to terms of service. 

My ideas - with the overall title "New Terms for Terms of Service. A Human Rights-Based Approach to Solving Jurisdictional Conflicts in Social Networks" - will develop on research I have conducted for a book on freedom of expression online for the Council of Europe. 

I'll share some of what I'll present in this blog entry and look forward to discussions at the workshop and to comments from readers.

Background 

In 2012, the tension between national laws, grounded in human rights, and terms of service of Internet companies resulted in a number of cases that evidence a worrying phenomenon. Among the cases I&J covered were the following three:

• In Brazil, in May 2012, Facebook posts of women showing their breast in a protest again sexual violence in the “March of Women” were removed.
  
• In the US, Twitter first refused to hand over the message history of a user involved in the Occupy Wall Street protests, arguing that their users, not they themselves, owned the tweets, but later changed course.
  
• On 24 January 2013, a French court ruled that Twitter had to identify authors of anti-Semitic messages “within the framework of its French site”. The ruling had come after France’s Union of Jewish Students had sued Twitter to police more effectively the misuse of the site as a forum for anti-Semitic slurs under the hashtag #unbonjuif (#agoodjew). On 20 March 2013, UEJF announced that it would invoke criminal liability of Twitter and its president, Dick Costolo, for not having identified the authors of anti-Semitic tweets. Additionally, the association demanded € 38,5 million as penalties. 

These examples show that private terms of service and public laws, ensuring human rights, often clash, as the distinction between private communicative spaces and spaces dedicated to public discourse, which need to be protected because of their importance for democratic decision-making, is blurred.

Further, different national laws apply to the activities of social media companies. National courts, administrative bodies, data protection authorities, ombudspersons charge themselves with applying norms to private spaces and, as the examples have shown, often come to different conclusions. Jurisdictional conflicts ensue and attempts to harmonize national laws dealing with private online spaces based on international human rights standards become more instead of less difficult. A new foundation for safeguarding freedom of expression in private spaces across jurisdictions is therefore necessary.

Such protection can be achieved by considering that these private spaces are developing into semi-public (or public spaces) where human rights norms apply as a baseline across jurisdictions. Human rights-sensitive terms of service would minimize the problem of different treatment of online content across jurisdictions and ensuing court battles with diverging results which bring legal uncertainty. We thus need new terms for Internet companies’ terms of service.

A Call for New Terms for Terms of Service

Preliminary Observations

Social networks play an essential role in creating and increasing the value of the Internet as a multifaceted and energetic discourse forum. They enable the exercise of human rights, especially the freedom of expression (but also of assembly) and can act as a catalyst for democratic participation and thus for democracy. But human rights may be threatened on social networks through terms of service that are insensitive to human rights.  

One of the key roles of the Internet with regard to freedom of expression is its enabling function. The Internet enables the exercise of freedom of expression by creating a huge resonance space, by allowing people to share ideas and concerns, wishes and complaints. The Internet is a discourse space that transcends borders, a progressive public sphere made up of private spheres where, nevertheless, issues of public interest are discussed.

In providing a space for such discussions (especially in times where carbon-based media are experiencing declines in readership and newspapers are shut down) the Internet’s public service value continues to grow. This implies certain duties for states. These include adopting human rights-consistent Internet policies, ensuring access, affirming freedom of expression and the free circulation of information on the Internet (and balancing them, where necessary, with other legitimate rights and interests) and ensuring that ICT content is reflective of all regions, countries and communities in order to ensure representation of all peoples, nations, cultures and languages.

  

Terms of service are sometimes in violation of human rights, especially privacy rights. Companies have to face the dilemma of navigating between keeping users happy, ensure universal (or quasi-universal)  availability and making money. Though they may profess do no evil, this is just one aspect of a viable business model. 

Both American law and the case law of the European Court of Human Rights contain arguments for the case for turning private spheres into semi-public spheres under certain conditions. In New Jersey Coalition Against War in the Middle East v. J.M.B. Realty Corp. (1994), the Supreme Court of New Jersey established the right of individuals to hand out protest literature in private shopping malls. The Court held that owners of shopping centers have to allow leaflets with expressive speech within their malls, if they are de facto public forums. Given that they are, it would be unreasonable to allow private parties (the owners of the mall) to limit free speech. New Jersey’s Supreme Court backtracked from this more limited understanding of property rights in the 2000 case The Green Party of New Jersey v. Hartz Mountain Industries, Inc. and adopted a test in which private property rights of mall owners have to weighed against the rights to free speech and assembly.

Across the Atlantic, in its only relevant case so far, the European Court of Human Rights has followed a similar approach, even if it appears to be less sensitive to freedom of expression concerns (and allows state a broader margin of appreciation, a notion that did not matter for the New Jersey Supreme Court). In Appleby, the Court had to weigh between the right to property of a mall owner and the freedom of expression of a group wishing to collect signatures for a petition inside the mall. Confirming that the freedom of expression constituted one of the preconditions for a functioning democracy, the Court nevertheless pointed out that freedom of expression was not necessarily linked to a particular forum (the shopping mall), if alternative means were feasible. In that case they were. The applicants could have, the Court ruled, “employed alternative means, such as calling door-to-door or seeking exposure in the local press, radio and television”. In the New Jersey case, the mall had become a de facto public forum exactly because no real alternatives were available.

Ten New Terms for Terms of Service

I have ten points I would like to put forward in my call for new terms for terms of service. These can inform the multistakeholder-based, human rights-sensitive debate we need to lead. 

1.  Different jurisdiction offer differ public law-based normative orders in which private Internet companies have developed terms of service. But these terms of service are often applied independent of jurisdictions because users come from different countries. Even if a US company has its European headquarters in a EU member state, the terms of service still tend to be heavily influenced by the original terms of service drafted with a view to US free speech laws and the company’s corporate construct of its self-identity.
   
2. Applying the normative order of one country to Internet-related activities within that country, a sovereign right, can lead to jurisdictional conflicts in light of the open geography of cyberspace.
   
3. Terms of service are formulated within the normative space national public law allows for private activity. This normative space is (also) limited by human rights. But when it comes to freedom of expression in social networks (private) platform rules are often more restrictive than national (public) laws. Conversely, in some countries national laws, based on diverging religious, historical and cultural reasons, may make different value judgments which conflict with the terms of service formulated within the normative sphere influenced by a different country’s public law. Therefore, taking recourse to human rights as a normative frame of reference and baseline make sense. Though certain core rights must always be respected and the essence of no right may be violated, states must be accorded a certain margin of appreciation as developed in the (insofar generalizable) case-law of the European Court of Human Rights.
   
4. Internet companies will often censor perfectly legal content because they feel it might diminish the user experience of mainstream users (‘makes users unhappy’) and thus reduces their commercially valuable positive attention.
   
5.  This is problematic because non-mainstream views are less in need of protection than views which, according to the European Court of Human Rights in its Handyside case, “shock, offend and disturb”. As the importance of social media as providers of the discursive sphere necessary for democracy grows (and they reify insofar the Internet’s public service value), the corporate social responsibility of private companies is engaged.
   
6. The right of Internet companies to design terms of service as they see fit is limited by two factors: First, human rights apply in all spaces – online, just as offline. Second, as the importance of Internet-based communication for exercising freedom of expression increases (their public service value), the public service responsibility of private companies grows.
   
7. Ultimately, a de facto monopolization of public discourse in private spaces (‘no alternatives for meaningful democratic discourse outside of private forums’) may lead to demands for partial de-privatization of private forums. This could lead, eventually, to qualifying ‘private spaces’ as public (or semi-public).
   
8. This qualification would lead to a bigger role for national law, reflective of, and grounded in, international human rights standards.
   
9. In aggregating and articulating information, a growing number of private and public spaces compete on the international sphere. The cross-border online spaces are full of jurisdictional boundaries and become more fragmented as states start to assert more aggressively their jurisdiction over online speech. Some states also resist attempts of regional harmonization, as the example of the British opposition against the EU’s new proposal for a Data Protection Regulation (with the controversial Article 17 and its right to be forgotten in social media contexts) illustrates.
   
10. A new foundation for safeguarding freedom of expression in private spaces across jurisdictions is necessary as is a fair process framework. We therefore need both formal and substantive rules that can be applied to the semi-public and public places of the Internet. Such a new foundation must be based on human rights norms which can become a baseline across jurisdictions. Human rights-sensitive terms of service would minimize the problem of different treatment of online content across jurisdictions and ensuing court battles with diverging results which bring legal uncertainty.

Next Steps

While a commitment to transparency of Internet companies regarding removal requests has become widespread, a similar comprehensive and nuanced commitment to international standards of freedom of expression is still missing. This needs to be remedied and reflected in the terms of service.

In cooperation with Internet companies, a dialogue should be started on ensuring that terms of service are as sensitive to human rights as their growing importance as forums of increasingly public value-oriented online discourse requires. The protection of a discourse space has to be commensurate to its importance in aggregating and articulating opinions. Importantly, human rights protection in online discourse forums needs to extend both to the material and the formal dimensions of protection.

Though different self- and co-regulatory mechanisms have already been set to develop and discuss standards to be used by social network providers, it is essential to include a right for users to be heard and to appeal against decisions by social network providers. These might include, in appropriate cases, the pursuance of legal measures within state judiciaries. But any causes of action need to be in line with internationally accepted human rights in order to minimize the potential for jurisdictional conflicts.

Summing up, a human rights-based reformulation of terms of service

• respects both the sovereignty of states (especially sovereignty as responsibility to protect its citizens) and recognizes the borderless geography of cyberspace whose competing normative orders are framed by human rights (and international law);
  
• ensures the interoperability of different private (and semi-private regimes), and statal, self- and co-regulatory mechanisms on a firm foundation of human rights, recognizing the importance of the margin of appreciation (and its conceptual counterparts); and
  
• holds, on a micro-network scale, that users have basic fair process rights thus minimizing jurisdictionally problematic individual court cases with the potential of diverging opinions and conflicts related to execution.

Can you prove somebody is an idiot? Defamation between freedom of expression and protection of reputation

Virgil's Fama is fleet-winged and swift-footed. 

Defamatory statements on the Internet, too.

(c) Kettemann 2013

Just as the fama in Virgil’s Aeneid (the etymological root of defamation) negative rumors harmful to someone's reputation prosper on the Internet. 

"Fama, malum qua non aliud velocius ullum: mobilitate viget virisque adquirit eundo, parva metu primo, mox sese attollit in auras ingrediturque solo et caput inter nubila condit. [...] progenuit pedibus celerem et pernicibus alis, monstrum horrendum, ingens, cui quot sunt corpore plumae,tot vigiles oculi subter [...] tot linguae, totidem ora sonant, tot subrigit auris." 

“[Fama] flourishes by speed, and gains strength as she goes: first limited by fear, she soon reaches into the sky, walks on the ground, and hides her head in the clouds.[…] fleet-wingedand swift-footed, […] who for every feather on her body has as many watchful eyes below […], as many tongues speaking, as many listening ears.”

Many tongues speaking indeed, many listening ears, many writing fingers on keybords and watchful eyes for youTube videos. For a study on  freedom of expression on the Intenret to be published by the Council of Europe I've looked at the issue in some more depth. What follows are a few important markers. But for an overview of the jurisprudence towards a "right to reptutation" I encourage you to have a look at  Stijn Smet's excellent article on Freedom of Expression and the Right to Reputation: Human Rights in Conflict, American University International Law Review 26 (2011) 1, 183-236.

But let's get back to fama and her wings and feet. 

One thing is clear: Internet platform providers, site moderators and bloggers have to take care not to engage in defamation and journalists reporting on events and news have to be careful not to publish content that is objectively defamatory. They have to avoide giving fama wings and feet, a forum and a multiplication vector.

As I  have argued in two previous postings (here and here), liability may ensue - and the liability regime established by some national courts is problematic; a definite answer by the European Court of Human Rights is still out though there are some positive indications in its previous case-law.

Now, why is defamation such a problem. 

While truth is an absolute defense against a claim of defamation, very often it can be difficult to establish or very costly do so. A customer on a travelling forum, for instance, might say that a specific hotel was a bad choice because of the small rooms and the broken appliances. This may be their opinion (‘bad choice’) but it also contains a statement of facts (‘broken appliances’). Once the hotel identified in the review published on the site asks the website owner to take down the post (on the argument that it is defamatory) the owner has a clear choice: either delete the post and thus arguably infringing upon the freedom of expression of its users or keeping the post and thus, having ‘owned up to it’, risk a defamation-based suit by the hotel.

The risk in the defamation suit is to prove the veracity of the statement. Unfortunately for the owner of the travelling website that duty now falls upon them. Thought the original poster may help, they are difficult to be legally forced to do so. The website owner - by themselves - will usually have a very hard time indeed proving that at a certain date in, say, 2011, the appliances in one specific hotel room in a small village somewhere in, say, California were faulty.

Voicing opinions (value judgments) online cannot amount to defamation, only statements of fact can be defamatory. As the European Court of Human Rights ruled in Lingens, “[t]he existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof”.

However, the Court will look the context of a statement to determine whether it is a true opinion or rather a statement of facts disguised as a value judgment.

Freedom of expression and the right to reputation as a weapon against defamation often conflict. The European Convention on Human Rights only mentions reputation in Article 10 (2) as a legitimate aim that would allow a restriction of freedom of expression: “for the protection of the reputation or the rights of others”. In a number of cases, centrally Pfeifer v. Austria (with regard to Article 8) however, the Court has developed a right to reputation from this basis as being part of a person’s right to respect for private life.

More recently, in Karakó v. Hungary Court seemed to qualify its strong position in Pfeifer arguing that only “factual allegations [of a] seriously offensive [with an] inevitable direct effect on the applicant’s private life” warrant protection a position it largely held in Polanco Torres and Movilla Polanco v. Spain.

In Polanco Torres (regarding an article alleging unlawful dealings and dirty money published first in the El Mundo newspaper) the Court ruled that the journalist had sufficiently verified the veracity allegations contained in the article. Their right to impart information that was in the general interest was given more weight than the right of reputation.

What makes this case especially interesting for freedom of expression online is that the article under review was republished by another newspaper, Alerta, that was also charged with defamation but unlike El Mundo convicted of it in the national courts because the journalists at Alerta had simply copied the article from El Mundo without checking the veracity of the allegations. We see: Merely republishing defamatory allegations without ensuring their veracity is highly problematic. 

In the 2011 case of Editorial Board of Pravoye Delo and Shtekel v. Ukraine the Court had another opportunity to assess the limits of defamation. The Court ruled that Article 10 must be interpreted as to imposing on states obligations to create an appropriate regulatory framework to ensure effective protection freedom of expression on the Internet for journalist. Pravoye Delo is therefore to journalistic freedom online what K.U. v. Finland is to protection of minors on the Internet. 

The editorial board of the Ukrainian newspaper had been fined for publishing defamatory statements taken from the Internet accompanied by an editorial in which they distanced themselves from them. The Court found fault with the reluctance of the local courts to apply protections regarding offline media to online surroundings. The Court agreed that

“[the] risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the press. Therefore, the policies governing reproduction of material from the printed media and the Internet may differ. The latter undeniably have to be adjusted according to the technology’s specific features in order to secure the protection and promotion of the rights and freedoms concerned.”

Just because the legal treatment of offline and online publications may differ, not applying safeguards at all is a violation of Article 10. This does not mean, however, that newspapers have to make individuals aware of potentially defamatory information. In the 2011 case Mosley v. the United Kingdom the Court ruled that the United Kingdom cannot be faulted in not giving a public figure whose sexual activities had been recorded and published in form of images and videos on a newspapers’ website the possibility of an injunction to prevent publication, even if the publication was violative of his right to private life. 

Taken together the case law of the European Court of Human Rights contains important markers for navigating between the right of freedom of expression and the right to private life, between legitimate publications in the public interest and defamatory comments. A key lesson, however, is – again – that states need to apply offline free expression protection guarantees to online situations, even if they have to developed in recognizance of the special impact Internet publications can have.

An African Spring? Human Rights and Security in Africa in Times of Change (Call for Papers)

Graz will host a workshop in June on
human  rights and human security in
 Africa (the image shows an  architecturally
interesting window ('nozzle') in the
Graz Museum of Modern Art
('Kunsthaus') (c) Kettemann 2012)

On 10-11 June 2013 the University of Graz will host the 6th Graz Workshop on the Future of Security, a series of annual workshops I co-founded six years ago, dedicated to new security challenges and internantional reponses to insecurity, focusing on the individual. 

Human security has been a focus of my research for some time. At the Institute of International Law and International Relations, I help run the Human Security Focus Group. 

The workshop takes on the important task of analyzing whether the political dynamic of the Arab Spring can be scaled up.  

Please find below the call for papers. The deadline for contributions has been extended to 12 April 2013. The organizational committee welcomes your submission. 

6th Graz Workshop on the Future of Security

An African Spring? Human Rights and Security in Africa in Times of Change

10-11 June 2013 | University of Graz, Austria

The Institute of International Law and International Relations of the University of Graz, Austria, the European Training and Research Centre for Human Rights and Democracy (ETC) Graz, and their Human Security Focus Group, in cooperation with the Austrian National Defence Academy invite contributions to the 6th Graz Workshop on the Future of Security on 10-11 June 2013, dedicated to the topic: ‘An African Spring? Human Rights and Security in Africa in Times of Change’.

The sixth workshop in a series of academic events devoted to furthering our understanding of
today’s and tomorrow’s security challenges is meant to bring together both emerging and
established researchers at the pre- and postdoctoral level active in the field of human rights and security studies to exchange views on contemporary challenges facing the African continent. The interdisciplinary workshop is dedicated to studying the consequences of the tremendous political shifts that occurred during the revolutionary changes in African countries over the last two years, their reasons and their implications for international, regional and human security.

Presentations could evaluate, for example, the impacts of the Northern Africa uprisings for peace and security in the region and abroad, the human rights situation during and after the revolutions, as well as the role of the international community and international organizations. Analyses of the events in light of international law and African normative instruments and the role of civil society and networks as agents of social change are also most welcome.

The presentations are selected on the basis of academic merit and may be submitted independently or under one or more of the following streams: Stream 1: Security Studies; Stream 2: Human Rights; Stream 3: International Law and International Politics; Stream 4: Social Sciences; Stream 5: Interdisciplinary Approaches.

Submissions of no more than 300 words describing your presentation should be sent together with a short bio no later than 12 April 2013 to future.security@uni-graz.at. Decisions of acceptance will be notified by 20 April 2013. A camera-ready version of the paper is due on 15 May 2013. Selected excellent contributions will be published in a special edition of the peer-reviewed journal Human Security Perspectives.

Organizing Committee:

Wolfgang Benedek | Vanda A. Dias | Lisa M. Heschl | Matthias C. Kettemann
Reinmar Nindler | Kalkidan N. Obse | Stefan Salomon

To Delete or Not To Delete Comments - Is that a Question? Worrying Liability Trends for Online Contents (II)

Leaving a comment is a great way to interact with an 

article, its author and the broader public. But who 

should be liable if the comment is derogatory? 

(c) Kettemann, 2012

In the last blogpost I argued that diverging liability judgements can lead to insecrutiy and hyper-sensitive intermediaries who will delete content, even if it is not illegal. 

I called upon Strasbourg's European Court of Human Rights to provide some guidance. It has (some time back). And it will again.

But let's go back first. In 1999, the European Court of Human Rights could confidently claim in Sürek v. Turkey (1999) that the owner of a journal was responsible for having published aggressively written letters to the editor, even if he had not personally associated himself with these. His conviction did not violate Article 10 because of the threats that were contained in these letters to particular individuals.

Extending Sürek to Internet intermediaries would mean burdening them with an impossible task. 

Imagine: Google woudl be responsible for all comments on all sites of all of its services.

Clearly, however, Internet intermediaries are not the prima facie editors of the information contained on their sites.

Even the webmaster of the site of an organization is not necessarily responsible for all content published on that site, as in the case of Renaud v. France (2010) shows, where the Court deemed exaggerated the conviction of a webmaster for remarks published, within a emotional public debate, on the association’s site.

This sounds promising if onen wants to  make the case against publisher's liability for Internet intermediaries based on jurisprudence from Strasbourg.

But this is not the end of the story.  

There is still a pending case, Delfi AS v. Estonia (communicated in 2011), which has the potential for trouble on the liability front. 

In that case the operators of an Internet news portal were held responsible in national courts for defamatory comment posted by a non-identifiable user below an article. Commenting was possible through a non-moderated system, as the technology was in place to delete messages on the request of third parties and to filter out certain language. The portal deleted the impugned comment without delay but was nevertheless convicted. 

Applying  Renaud mutatits mutandis would make the Court's decision in Delfi AS seem like a foregone conclusion. 

The Court should clarify, when deciding Delfi, what limits can be set for Internet intermediaries, just as it has so admirably shown the limits of state censorship of Google sites in Yildirim v. Turkey.

Limiting the ex ante content moderation obligations of Internet intermediaries is essential for keeping the flow of ideas on the Internet open. Navigating between state laws and its own content moderation rules is often difficult for international Internet intermediaries, and especially social networking sites, who are faced with conflicting demands and threats by states to disallow access altogether in case of non-removal of impugned information.

hat a wholesale ban of a whole service in reaction to illegal content on a certain site violates Article 10 ECHR (freedom of expression) has been confirmed in Yildirim, as well.

Attempts by some states, such as India, to oblige Internet intermediaries to pre-censor content have been met with strong international opposition. The Internet thrives on openness and the quick and free exchange of ideas. Therefore the responsibilities of Internet Service Providers cannot be understood to extend to ex ante moderation. 

Distinguishing Sürek and relying on Renaud, this is what Delfi AS can be expected to come down to.

That decision would also allow us to assess more clearly national liability decisions and help develop a trans-European liability regime - or rather, hopefully, a liability-minimizing and liberty-maximizing regime. 

To Delete or Not To Delete Comments - Is that a Question? Worrying Liability Trends for Online Contents (I)

Leaving a comment is a great way to interact with an 

article, its author and the broader public. But who 

shold be liable if the comment is derogatory? 

(c) Kettemann, 2011

Should Google (or other Internet plattform providers) be held liable for content uploaded by users? 

Yes, said an Italian tribunal - even the managers can we held personally liable. 

No, said an Italian higher court. 

Yes, said a British court, if they do not react immediately. 

We see: the question of publisher's liability is a tricky one. Should it lie with the blogger or the company that provides a blogging plattform? 

Italian courts (briefly) allow personal (criminal) liability for online content

In September 2006 an individual posted a a video on Google videos that showed the taunting of a disabled child by other children. The video was online for three months before being removed by Google. The authors of the video were prosecuted (after Google provided identifying information), but so were four executives of Google for, as an article in the International Journal of Law and Information Technology  has it, “defamation and violation of data protection rules” in the form of “co-participation” and for illicitly processing personal and health data for profit." 

The Tribunale di Milano in 2010 (case no. 1972/2010) passed suspended prison sentences for three of the executives for the data protection violations. The tribunal did not find any guilt regarding co-participation in defamation as the current Italian legislation did not provide for Internet Service Providers’ liability for negligence in regarding delayed removal of postings. 

After outspoken criticism of the decision, an appeals court, on 21 December 2012, reversed the convictions and acquitted the three men. It argued, inter alia, that 

“[t]he possibility must be ruled out that a service provider, which offers active hosting can carry out effective, pre-emptive checks of the entire content uploaded by its users. […] An obligation for the Internet company to prevent the defamatory event would impose on the same company a pre-emptive filter on all the data uploaded on the network, which would alter its own functionality.”

Or, as Reuters put it in the title of an article reporting on the published judgement on 27 February 2013: 

"Google not expected to check every upload says Italian court". 

Such a pre-emptive filtering system would not only alter the network’s functionality but also violate freedom of expression, at least if such a system was imposed by a state, as the European Court of Justice ruled in SABAM v. Netlog NV (16 February 2012), C-360/10.

If some Google executives could  breath a sigh of relief, others had to worry. 

UK courts confirm publisher's liability for Google

On 14 February 2013, the Court of Appeal of England and Wales ruled, in Payam Tamiz v. Google Inc., that Google can be held liable for comments published on Blogger, its online blogging platform, unless it reacts immediately to a complaint.

The appeals judgment reversed a 2012 ruling which had considered, in line with international jurisprudence, that an Internet platform should not be treated as a publisher. 

Google had received complaints regarding certain comments on a blog post and had forwarded them on to the blogger who waited five weeks to delete them. The British NGO Article 19 considered the judgment to be a “serious step back for free speech online”

The judgment means, in effect, that the notice and takedown system is strengthened. This system encourages content hosts, such as Google (but also individual bloggers who have activated their commentary function) to immediately delete even potentially defamatory material immediately after having been notified even if the material is not illegal at all. 

This can have negative chilling effects. According to Article 19, this creates a situation where intermediaries will be more likel to censor "perfectly legitimate speech". 

(I'm not sure I agree with the notion of "legitimate" speech. I'd call the speech just 'perfectly legal'). 

Indeed, the ruling is bad news for free speech online, but - given the circumstances of the case (the connection to an election, the long period of five weeks without deletion of the comment) - probably not surprising. 

Future judgements will most likely draw a finer line. 

The negative implications of intermediaries being more likely to censor perfectly legitimate speech" is no new fear - and definitely not one connected only to this judgement. 

Intermediaries have always censored perfectly legitimate speech because of a variety of reasons, notably because they want a clean, safe and happy plattform on which users stay long, pay attention to ads and, ideally, also spend money. 

The trend, though, is worrying. 

And what is further worrying is the divergence between judgements even within Europe, which is bound to the European Convention on Human Rights and (for almost all EU states) the Fundamental Rights Charter. 

Strasbourg might want to have its say. And it can. 

For more on that, wait for the next posting.

And by the way: Comments are, as usual, enabled.

Looking back to look ahead: In 1993, the Internet was “suddenly the place to be”

Going back in time can lead to
 interesting insights. Be it on the 
challenges facing the Internet or the 
advantages of growing a beard.

In my research for a book on Freedom of Expression and the Internet that I’m co-authoring for the Council of Europe, I came across an article published 20 years ago that takes us back in time: 

Philip Elmer-Dewitt, First Nation in Cyberspace. Twenty million strong and adding a million new users a month, the Internet is suddenly the place to be, TIME International, 6 December 1993, no. 49, available online thanks to – of all – the chemistry department at FU Berlin.

In 1993, Time magazine ran an article on the emergence of the Internet. It seems to come from a completely different world. “Suddenly the Internet is the place to be,” Time writes,

“American college students are queuing up outside computing centers to get online. Executives are ordering new business cards that show off their Internet addresses. Millions of people around the world are logging on to tap into libraries […]. Even the U.S. President and Vice President have their own Internet accounts.”

Imagine that: Students are queuing up to get online. Today they will be angry if the WLAN is slow. And they will only queue up to get new devices to go online.

What we consider today to be one of the key features of the Internet, namely the ubiquity of information and its uncoordinated, decentralized provision of information was a major issue 20 years ago. Time again:

“But the Internet is not ready for prime time. There are no TV Guides to sort through the 5,000 discussion groups or the 2,500 electronic newsletters or the tens of thousands of computers with files to share.”

Oh dear: there is no one ‘guide’ to the Internet.

Back in 1993, Companies were not yet active online: The Internet, as Time wrote 

“will have to go through some radical changes before it can join the world of commerce. […] It does not take kindly to unsolicited advertisements; use electronic mail to promote your product and you are likely to be inundated with hate mail […] ‘It's a perfect Marxist state, where almost nobody does any business,' says [University of Pennsylvania information science professor] Farber.’ But at some point that will have to change.”

As we all know, this has indeed changed substantially. Now, everybody does business online. And hate mail is no longer sent to spammers; indeed, they would probably appreciate that as it would signal that a spammed e-mail account was active.

Yet all was not well in 1993’s Internet: Early on the Internet contained speech that was deemed problematic:

“People […] may be in for a shock. Unlike the family-oriented commercial services, which censor messages they find offensive, the Internet imposes no restrictions. Anybody can start a discussion on any topic and say anything.”

Imagine that: Anybody can say anything. We know, of course, that is it not true. Laws (e.g. against hate speech) that apply offline also apply online. They may just be more difficult to enforce.

But even twenty years later this general right of anybody to “start a discussion on any topic and say anything” remains at the center of the right to freedom of expression online. A lot has changed in two decades, but free speech continues to fuel the Internet as a catalyst for human rights.

The Internet, as far as it can be personalized as ‘The Internet’, supports human rights protection online through its foundational principles, including net neutrality, the open architecture of the network and the end-to-end principle. As Internet activist John Gilmore put it in the Time article: “The Net interprets censorship as damage and routes around it”.

A growing number of states apply national policies to the Internet that limit Internet freedom and destroy in part or in whole the potential of the Internet as a catalyst for change and for reaching a higher level of human rights protection.

In retrospect, 1993 – though it was two years after the introduction of the World Wide Web in 1991 – seems like a long time ago. But we should pay attention: We do not know what the future holds.

The speed in which the Internet develops intensifies; a version of Moore’s Law is applicable not only to data processing but to data availability as well. We do not how what challenges will exist for freedom of expression in one year, five years or 20 years.

What four lessons can be draw from the Time article.

1. The technological innovations of the future are impossible to predict. 
2. What seems exciting, revolutionary and new can – in retrospect – look tiny, puny and unimportant. 
3. To understand the key challenges of today, it makes sense to go back in time. 
4. Technologies change, but law lasts. 

The standards developed by the European Court of Human Rights (and it institutional predecessor, the Commission) over more than 60 years hold true today and will hold true, with some adaptions, tomorrow. The key of that standard is the commitment to safeguarding freedom of expression and accepting only interferences when they are legal, pursue a legitimate goal and are necessary and proportionate with regard to the goal pursued.

As a post-script: If you liked the Time article, you’ll love this interview, also from 20+ years ago, with Isaac Asimov, who talks in glowing terms about the potential of the Internet. Everyone can have access to all human knowledge, he says. “Every student has his or her private school and it belongs to them. […] They can be dictators of what they want to study.” 

If I had only known that back in 1993, sitting in school at 10, fidgeting because I was looking forward to soccer practice.

Does multistakeholderism make decisions more legitimate?

The involvement of stakeholders in normative processes

has an impact on the legitimacy of their outcome.

There is an interesting iscussion going on on a list I am a member of on the true meaning of multistakeholderism and its relationship to legitimacy.

In a post, Mike Gurstein set out to defend multistakeholder processes as a framework of decision-making, but not a means to -necessarily - increase legitimacy.

He writes:

"Multistakeholder processes could and should enhance democracy by increasing opportunities for effective participation by those most directly impacted by decisions and particularly those at the grassroots who so often are voiceless in these processes"

"To do this means shifting away from multistakeholderism as a “means of legitimation” to being one among many strategies for making democracy more workable in this era of enhanced communications, enhanced interactivity and accelerated change."

While I agree with Mike on the importance of enhancing democratic participation in the development of norms, I feel that the legitimating dimension of multistakeholder processes may be underestimated.
I've written on the relationship of multistakeholderism and legitimacy at length in my recent book, but I'll restart my points here.

 

Building on Thomas M. Franck, The Power of Legitimacy Among Nations (Oxford: Oxford University Press, 1990), I argue that how legitimate a norm can be is to be measured according by referring to its determinacy (ascertainable normative content), symbolic validation through an authority figure, coherence, and adherence to a broader system of rules.

These legitimacy criteria can be refined and regrouped for application with regard to the law of Internet Governance. 

I've suggested in my thesis that an International Internet norm is legitimate if it meets a formal and a material legitimacy requirement:

- formally, it needs to be symbolically validated through its emergence in a multi-stakeholder process (the input and throughput dimension of legitimacy),

- materially, it needs to be determinate enough for its purpose (thus allowing for non-binding instruments), cohere with the Internet’s core principles and be consonant with the values of Internet Governance, and adhere systematically to the broader normative system of Internet Governance (the output dimension of legitimacy).

Multistakeholderism provides for a strong legitimation base for norms flowing out of representative and inclusive normation processes because of the triad of legitimating sources: the three key stakeholder groups (states, the private sector, and civil society).

Multistakeholderism as an approach is thus the best approximation of an ideal discourse we have. And an ideal discourse on norms is what we should strive for, because the norms developed in such a discourse, are legitimate in light of the criteria developed above. 

One example for that approach (and the consequences of ignoring it) is ACTA.

One of the main arguments brought forth by civil society against ACTA was that it was debated in secret without civil society involvement. The European Commission argues that this was untrue, but it was - also due to  reasons of EU competence -  mainly a Commission- and state-led exercise. 

I conclude in my book that any multistakeholder approach must ensure equilibrium between the actors and their normative inputs to the greatest extent possible. Therefore, the provision of clear procedural rules on how different stakeholders can contribute is necessary. Developing this on an international level is one of the more important challenges international law will face in the years to come.

By now, Internet Governance Law has developed to a point where individuals have a heightened expectation of legitimacy. There is an expectation of consultation with stakeholder groups; and there are – in certain areas of norm production – corresponding commitments to multistakeholderism by governments. These go back to the World Summit on the Information Society and have been reified in the declarations of rights and principles. 

Even though the European Commission was able to show that it had consulted other stakeholders (but barely so) and that the European Parliament was involved (to a limited degree) in the review of the results of ACTA negotiations, this was not perceived to be enough by certain civil society forces who organized, motivated by the emotionalizing power of an envisaged ‘assault’ on the Internet, a powerful movement against ACTA. This campaign ultimately let the norm entrepreneurs – states – to hold back from signing and ratifying ACTA. That ACTA included certain multistakeholder elements, though it was led by the Commission and thus could only demand technocratic-rational legitimation, did not sufficiently allow for an actualization of the expectation of legitimacy with regard to the normative output.

The implication for international treaty negotiations is this: There is a certain consonance between the post-interposition character of a regime and the level of multistakeholder participation expected by the community. The more individual-centric a regime traditionally is (or the greater individuals feel their involvement should be), the higher the level of multistakeholder participation must be provided for, for both forces to be in consonance. In civil society’s view, the result of the ACTA negotiations exhibited legitimatory dissonance. 

The integration of all stakeholders is essential for discovering, in the pre-normative phase, the challenges that regulatory attempts need to overcome and the regulatory demand they set out to answer. The multi-stakeholder approach, therefore, to which the international community is firmly committed with regard to Internet Governance law, has serious implications for the way in which international treaties should (and will) be negotiated in the future.