A blog on why norms matter online

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I'm a Post-Doc Fellow at the Cluster of Excellence "Normative Orders" of the University of Frankfurt and lecturer at the Institute of International Law of the University of Graz, Austria. I've studied international law in Graz, Geneva and at Harvard Law School. I enjoy thinking and writing about Internet Governance and discussing and shaping the future of the Internet

Wednesday, April 24, 2013

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.


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.

Sunday, April 7, 2013

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 ConflictAmerican 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.

Saturday, April 6, 2013

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