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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
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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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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).
- This qualification would lead to a bigger role for national law, reflective of, and grounded in, international human rights standards.
- 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.
- 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.
