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
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
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 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.
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.