Human Rights, Digital Society and the Law

A Research Companion

Mart Susi

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351025362
• Edition: 1
• Topic: Law
• Subtopic: International Law
• Index: Law

The Internet has created a formidable challenge for human rights law and practice worldwide. International scholarly and policy-oriented communities have so far established a consensus regarding only one main aspect – human rights in the internet are the same as offline. There are emerging and ongoing debates regarding not only the standards and methods to be used for achieving the "sameness" of rights online, but also whether "classical" human rights as we know them are contested by the online environment. The internet itself, in view of its cross-border nature and its ability to affect various areas of law, requires adopting an internationally oriented approach and a perspective strongly focused on social sciences. In particular, the rise of the internet, enhanced also by the influence of new technologies such as algorithms and intelligent artificial systems, has influenced individuals' civil, political and social rights not only in the digital world, but also in the atomic realm. As the coming of the internet calls into question well-established legal categories, a broader perspective than the domestic one is necessary to investigate this phenomenon.

This book explores the main fundamental issues and practical dimensions related to the safeguarding of human rights in the internet, which are at the focus of current academic debates. It provides a comprehensive analysis with a forward-looking perspective of bringing order into the somewhat chaotic online dimension of human rights. It addresses the matter of private digital censorship, the apparent inefficiency of existing judicial systems to react to human rights violations online, the uncertainty of liability for online human rights violations, whether the concern with personal data protection overshadows multiple other human rights issues online and will be of value to those interested in human rights law and legal regulation of the internet.

Part I

Introduction

Human rights in the digital domain – the idea of non-coherence theory

Mart Susi

The principal matter that all the chapters in this volume more or less directly or indirectly address – either in relation to a specific human rights topic or in reference to a specific region – is whether human rights law as we know it from the offline world exists also in the digital domain. The idea of the sameness of human rights online and offline¹ may seem at first glance conditio sine qua non based on common sense, yet it implies that not only human rights norms from the offline dimension, but more broadly the whole human rights framework is transposed from the offline to the online sphere. This implication can be explained either using “ordinary” language or conceptually. By the “ordinary” meaning of human rights I have in mind what rights we have, how we can enforce these rights and what happens if someone interferes with our enjoyment of our human rights. This is mapped at the conceptual or scientific landscape of human rights as the aspects, first, of the origin and meaning of human rights norms, including human rights theory, and second, of the implementation of human rights claims, including who has obligations corresponding to these rights, and third, of remedies against human rights violations. In relation to all three aspects there are concerns about whether the human rights digital framework simply mirrors the non-digital or whether the offline image becomes distorted once online. The actual question that emerges is not whether the image is somewhat distorted – we all know that it is – but whether the distortion is of such a degree that it amounts to what one would call a paradigmatic shift. The chapters in the present volume constitute sufficient scholarly evidence to present these concerns in a holistic manner. In the offline dimension, human rights norms, the practice of their implementation and the remedies form a coherent system, where the various parts are interconnected and the functioning of each part critically depends on the functioning and predictability of the other parts. A paradigmatic shift in the human rights framework in the offline-online divide means that the coherent offline system becomes dysfunctional online. Or rather, the question arises of whether we are using conceptual tools originating from the offline human rights discourse which may not be suitable for the online human rights environment. This may mean that the principles of legal certainty, foreseeability and predictability, which are all features of constitutional democracy, are not applicable in the online domain.

1 The idea of the sameness of offline and online rights is the main overarching concept in current internet-related legislation, policies and debates, and is rarely challenged. It originates from the 2012 United Nations Human Rights Council resolution on ‘the promotion, protection and enjoyment of human rights on the internet’. This resolution affirms that the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with article 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights – see UN General Assembly Resolution A/HRC/20/L.13 on the promotion, protection and enjoyment of human rights on the internet. Retrieved from http://www.un.am/res/Human%20Rights/GA%20resolution%20on%20internet%20as%20the%20human%20right%202012_eng.pdf (accessed 29.03.2019).

To illustrate this for the offline dimension of human rights (human rights as we know it), if Archibald wishes to write an article for a newspaper, suggesting that Mathilda as his supervisor has created an environment of harassment in the workplace, then both can realise their rights through the established human rights system. Archibald can claim that he only implements his right to freedom of expression, whereas Mathilda can claim that this intrudes on her privacy and reputation. Both Archibald and Mathilda know that their rights are relative and in principle deserve the same protection. Both can turn to a court which has to explain which right merits more protection given the circumstances. When the court is not sure whether the lawmaker intended to protect one’s workplace reputation at the same level as one’s reputation as a private person, then the court can turn to the travaux preparatoires from civil liability law. The court can impose a prohibition against the publication until the case is resolved. Should Mathilda win the case, the article will never be published, if the interim measure was applied. If the article is published, and five years later Mathilda wishes to apply for a new job, the employer is not likely to find out about the allegation of harassment. Archibald may also apply for a new position in five years and the future employer is not likely to obtain information that he has once been a whistle-blower against a previous employer. This image becomes distorted online.

The first concern related to the distortion is about the challenges originating from the digital domain towards the offline human rights deontological architecture; that is, the meaning of human rights norms, the origin of the standards for their realisation, and the interrelationships and theoretical considerations which are intrinsic to such architecture. Is there evidence to suggest that the meaning and scope of concrete human rights as formulated and accepted in the offline (physical) world is changing in the online world? My response to this question is that such evidence exists. Not only is this related to human rights norms, but also to human rights doctrinal matters. The deontological character of human rights online is different from deontological character of human rights offline.

Regarding human rights norms, we can see that their meaning changes once transposed into the digital domain. Penney argues that technology has not only lead to the birth of the modern meaning of privacy, but also to its mortal twin – the phenomenon of privacy fatalism.² From the other side of the coin, Pollicino and Soldatov suggest that the world wide web is threatening the meaning of the freedom of expression.³ We are also witnessing the emergence of internet-specific human rights. Angelopoulos raises the question of the nature of copyright and its relationship with other interests, a question that has emerged due to the development of digital technology.⁴ She asks whether copyright is a new human right and if it is, how are its clashes with other rights to be resolved? Pagallo and Durante propose that the reason for the articulation of the new human rights for the protection of personal data is because of the need to complement the canonical protection of privacy in the online domain.⁵ A related debate is whether the right to erasure, or de-listing, should be conceived as a new human right. Taken separately, it may not be sufficient in the context of the emergence of internet-specific human rights and the change in the scope of traditional human rights to speak of a paradigmatic change in the human rights framework caused by the internet. But in conjunction with other changes, let us explore this further.

2 Jonathan Penney (2019) The Right to Privacy: The End of Privacy Fatalism. In: Mart Susi (Ed.), Human Rights, Digital Society and the Law. London: Routledge, 45.

3 Oreste Pollicino and Oleg Soldatov (2019) Judicial balancing of human rights online. In: Mart Susi (Ed.), Human Rights, Digital Society and the Law. London: Routledge, 144–145.

4 Christina Angelopoulos (2019) European copyright and human rights in the digital sphere. In: Mart Susi (Ed.), Human Rights, Digital Society and the Law. London: Routledge, 257.

5 Ugo Pagallo and Massimo Durante. Human rights and the right to be forgotten. In: Mart Susi (Ed.), Human Rights, Digital Society and the Law. London: Routledge, 197.

Internet-specific human rights standards in the digital domain originate directly from the service providers themselves – powerful online companies create the standards for their own usage. This is exactly what Kulesza means when she writes about the changing norm-making paradigm⁶ regarding how and by whom normative and procedural standards are formulated. Despite the developing international – political, judicial and academic – consensus that both vertical and horizontal mechanisms have an important role to play in internet governance,⁷ the concept of the dual nature of human rights governance online remains rhetorical and illusory because there is no evidence that these governance models can operate in concert. Rather, the chapters in the present collection demonstrate the opposite – a perpetual dichotomy, where the vertical model assumes that the offline human rights framework is transposable to the online sphere, and the horizontal model assumes that it is not. International soft law instruments suggest that governments should adopt regulations outlining the terms of service for online companies and call for these companies to publish their own standards for content moderation. Such legislation and standards need to meet the criteria of transparency, accessibility and foreseeability. We are witnessing that the legislation adopted usually applies only to hate speech and leaves the matter of legally acceptable online user-generated content at the mercy of service providers. In recent years, the main global social media actors have published community standards regarding their anticipated actions towards online content.⁸ The focus of these standards is against hate speech and/or clearly illegal content, but there are also guidelines for when legal content affecting someone’s privacy can be removed or blocked. These standards neither refer to the international normative human rights architecture, nor do they address the matter of the sameness of online and offline rights. When YouTube writes in its standards that it “reserves the right to make the final determination of whether a violation of its privacy guidelines has occurred”, this reflects the doctrine of law as practice. We may use terms like Lex Facebook, Lex Twitter, etc., which means that the origin of digital human rights law has, strictly speaking, a private character.

6 Joanna Kulesza (2019) Multistakeholderism – meaning and implications. In: Mart Susi (Ed.), Human Rights, Digital Society and the Law. London: Routledge, 130.

7 See Council of Europe Committee of Ministers Recommendation CM/Rec (2018)2 to the member States on the roles and responsibilities of internet intermediaries.

8 See Facebook community standards www.facebook.com/communitystandards/ (accessed 20.10.2018), see YouTube community standards www.youtube.com/intl/eng/yt/about/policies/#community-guidelines (accessed 20.10.2018), and see Twitter community standards https://help.twitter.com/en/rules-and-policies/hateful-conduct-policy (accessed 20.10.2018).

We also see that the principles of transparency, accessibility and foreseeability lose their overarching functionality in regard to human rights online; that is, these principles are not usable for conceptualising human rights online. The image of human rights online can be painted according to how and why these principles are not applicable. Transparency offline means that individuals can understand why certain outcomes regarding their ability to realise human rights are achieved, usually by reading a court judgment or some other articulated document related to their individual situation. The concern about the lack of transparency when online companies access user-generated content is evident from many chapters in the present volume that touch upon this matter. Transparency regarding individual human rights protection is replaced by statistical data regarding the outcomes of the assessment of similar online conflicts of rights or values. Accessibility relates to both access to regulative principles, which is positive law, and remedies in the event of an alleged violation. We are used to having easy access to legal norms which tell us what consequences we can expect as a result of our behaviour. When it comes to the protection of rights online, we are not sure where we can find the applicable regulation, if it exists at all. Regarding remedies offline we know at least in principle where to find the protection of one’s rights when a violation is claimed. Since the matter of remedies against online human rights violations remains at the stage of contestation, it is often not clear which remedies are available if there is an online violation – either judicial or via the platform itself and what is the appropriate procedure to follow.

The offline human rights framework is partially based on the assumption that rights such as the freedom of expression and the right to privacy deserve equal protection...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Dedication
• Contents
• Notes on contributors
• Part I Introduction
• Part II Right to the internet and rights inside the internet – theoretical dimension
• Part III Legislation, judicial and stakeholder practices – practical dimension
• Part IV Specific issues related to human rights and the internet
• Part V Data protection issues
• Part VI Global perspective
• Index