The Internet and Constitutional Law

The protection of fundamental rights and constitutional adjudication in Europe

Oreste Pollicino, Graziella Romeo

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317407980
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

This book analyses emerging constitutional principles addressing the regulation of the internet at both the national and the supranational level. These principles have arisen from cases involving the protection of fundamental rights. This is the reason why the book explores the topic thorough the lens of constitutional adjudication, developing an analysis of Courts' argumentation.

The volume examines the gradual consolidation of a "constitutional core" of internet law at the supranational level. It addresses the European Court of Human Rights and the Court of Justice of the European Union case law, before going on to explore Constitutional or Supreme Courts' decisions in individual jurisdictions in Europe and the US. The contributions to the volume discuss the possibility of the "constitutionalization" of internet law, calling into question the thesis of the so-called anarchic nature of the internet.

1
Judicial reasoning and new technologies

Framing, newness, fundamental rights and the internet

András Sajó^*and Clare Ryan

1.1 Introduction

For centuries, judges have struggled to adapt existing law in the face of technological advancement. Both civil law and common law judges confront situations in which technological developments contribute to new social and economic contexts; contexts for which the current legal regime is ill-equipped. When this arises, the judge must first determine whether the technology is indeed new. Does the present case truly fall outside the scope of previous precedent and statute? If so, judges apply metaphors and analogies to the new context so as to make sense of the novel by using the frames of the past.

The act of pouring new wine into old bottles has always been a part of the judicial task – not only for common law development, but also as civil law judges interpret and apply code. There is nothing new in this act of judicial framing. The real challenge comes when judges (or legislators) are confronted with unexpected, unpleasant or ambiguous social and economic consequences of technology. The challenge may be particularly acute when these consequences arise from earlier judicial choices about framing.

The focus of this chapter will be on the complex challenges posed by the internet. Specifically, this chapter will address the interaction between the harms and opportunities of the emerging online world and individual constitutional or human rights. We ask first how judges develop analogies and metaphors to make sense of new technology. We then question whether those frames provide an adequate response to the modern world. We argue that, with regard to individual rights and the internet, a process of reframing is occurring. This reframing has begun to reject traditional rights frames – like freedom of expression.

It is important to note that we are not talking about technological change as such, but rather the interaction between technological change and the relevant social and market reactions to the implications of this change. It is regularly argued that when the current law, or the lack thereof, is insufficient to address present conditions, then it is for the legislature to take appropriate action. This principle surely applies to uncertainties resulting from technological change. But what happens if the legislature is not responding? The judge will decide the case on the basis of laws that are arguably inadequate to handle the new situation. The matter is then further complicated by the application of constitutional or human rights to contexts in which the legal rule governing a technological advancement predates the recognition of the right in question.

When it comes to judicial handling, the subject-matter of litigation is relevant, but of equal importance is the type of court that is supposed to adjudicate. Here we concentrate on apex courts (i.e. constitutional and supreme courts), and also international courts, primarily the European Court of Human Rights. Even at these apex courts, it should be mentioned that rights and fundamental rights-related concerns are only part of the consideration. Risk and economic development are additional considerations, which do play a role in the acceptance of rights restrictions. In other words, the social interest related to the consequences of the technology might give weight to the conventionally recognised grounds for interference.

We have arrived at a point of great tension between existing rights frames and the social reality which creates, and is created by, the internet of the twenty-first century. The first part of this chapter explores judicial framing as a technique for confronting new technology. Next, we examine the ways in which social consequences challenge existing frames. Finally, we demonstrate the ways in which old metaphors are losing their power – including past justifications for values such as freedom of expression.

1.2 Old framing for novel technology

The dilemma of how to balance old norms in new contexts is hardly new, although the scope of its implications may be broader now than in the past. For the continental lawyer the paradigm cases remain, most probably, the French judicial reaction to photography and to the phenomena of industrial accidents. Similarly, the development of liability regimes during the English and American industrial revolutions highlight how integral judicial framing is to the legal reception of technological advancements. Additionally, a classic American case for reframing rights and technology in a socially changing environment came from Justice Brandeis’s dissent in the first US Supreme Court case to address wiretapping.

In 1858 it had been five years since Nadar opened his portrait studio in Paris and photography had become commercially available. In that year, a French judge was asked to decide the fate of legally taken photographs of the French actress Rachel on her deathbed. The pictures were taken upon request of her sister for family purposes, but the photographers were forbidden from communicating a copy of them to anyone. Twenty-five copies were put up for sale. The French court ruled that: ‘No one may, without the express consent of the family, copy and publish the face of a person on his deathbed, irrespective of the celebrity of the person and the degree of publicity that was attached to the acts of his life. The right to forbid such reproduction in an absolute one.’¹

Although it was nearly half a century after this case before France codified a general right to personal images, the Rachel case is considered to be the beginning of modern personality rights and the right to one’s own image. Certainly, it did have an impact on the use of photography (although not on the technology). This case demonstrates that, even in the absence of a civil code rule, the civil law judge was able to determine that the new technology had facilitated the infringement of a heretofore unarticulated individual right.

The second French example is that of no-fault liability. The French Civil Code and French legal doctrine were based on the assumption that fault is the moral base of negligence and legal liability. Therefore, plaintiffs had the burden of proving fault as an element of their claim. In an age of increasingly dangerous industrial equipment, this strict requirement to prove fault wrought evident injustice for victims of industrial accidents (evident, importantly, to judges).

In 1896, the Court of Cassation, invoking Article 1384 of the French Code Civil, held the owners liable for injuries caused by the explosion of a steam engine. The relevant Article had hardly ever been invoked previously; it simply held that a person was responsible for harm caused by objects within their control, but it otherwise appeared to fit within the general negligence regime. However, the French court stated that Article 1384 raises a presumption of fault (presomption de faute), which results in shifting the burden of proof (renversement de la charge de la preuve) onto the defendant to show that the accident was the result of an uncontrollable event.²

This was sheer legal interpretation; applying a new reading to pre-existing statute. The court did not make explicit reference to socio-economic or technological change, although the power of new industrial machinery certainly drove this legal innovation. Rather, the court relied on a relatively open text within the civil code. As Saleilles mentioned in regard to a similar shift in interpretation regarding railway passengers: ‘au dela du code civil, mais par le Code civil’.³

The French courts, however, did not apply this innovative legal interpretation to automobile accidents until many decades later. Why? Perhaps out of fear of stifling a nascent industry. More importantly, in the early days, only the wealthy drove automobiles. The courts, despite increasing public frustration with the costs of these dangerous vehicles, refrained from imposing stricter liability on accidents caused by this privileged social class. This stance did not shift until after the First World War.⁴

In the Anglo-American context, the strict liability regime also developed through judicial response to changing technology during the industrial revolution. The United States applied traditionally stringent fault requirements in industrial accidents, justified perhaps by a need to foster growth and encourage entrepreneurial industry. In some cases, however, this default began to erode during the latter part of the nineteenth century. Although there was a pro-industry presumption in legislation and traditional tort rules, as judges perceived the increased dangers of (then) modern technology, and the subsequent injustices created by outdated law in individual cases, they expanded the concept of strict liability into areas that had previously been governed exclusively by a negligence regime.⁵ As Lawrence Friedman wrote in reference to this time of legal and industrial change:

A general pattern may be discerned which is common to the judicial history of many rules of law. The courts enunciate a rule, intending to ‘solve’ a social problem—that is, they seek to lay down a stable and clear-cut principle by which men can govern their conduct or, alternatively, by which the legal system can govern men. If the rule comports with some kind of social consensus, it will in fact work a solution—that is, it will go unchallenged, or, if challenged, will prevail. Challenges will not usually continue, since the small chance of overturning the rule is not worth the cost of litigation. If, however, the rule is weakened—if courts engraft exceptions to it, for example—then fresh challenges probing new weaknesses will be encouraged.⁶

In the era that Friedman describes, judges increasingly carved out exceptions to the fault rule – conforming to social fairness, rather than strict legal requirement – and, over time, these exceptions eroded the overarching legal frame.

In 1928, Justice Brandeis provided the classic American case for judicial framing in the face of new uses of technology. His dissent in United States v Olmstead argued for expanding Fourth Amendment search and seizure protections to telephone wiretapping. The majority held that because listening to a private telephone conversation did not require a physical search or entry into a person’s private space, the Fourth Amendment warrant requirements did not apply. Brandeis argued that extending the meaning of the search and seizure protection was warranted, given the changing technology:

[T]his court has repeatedly sustained the exercise of power by Congress, under various clauses of that instrument, over objects of which the fathers could not have dreamed … We have likewise held that general limitations on the powers of government, like those embodied in the due process clauses of the Fifth and Fourteenth Amendments, do not forbid the United States or the states from meeting modern conditions by regulations which ‘a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive…. Clauses guaranteeing to the individual protection against specific abuses of power, must have a similar capacity of adaptation to a changing world.⁷

1.3 Framing and the power of metaphors

So what do courts do when they are confronted with a new technology that generates socially contested situations, in particular alleged fundamental rights violations? Compared to the strict liability example, here the stakes are raised. The arguments are elevated to the realm of fundamental and human rights on both sides (users of the techno...

Table of contents

• Cover Page
• Half-Title Page
• Title Page
• Copyright Page
• Table of Contents
• Notes on contributors
• Introduction
• PART I The theoretical framework and the jurisdiction conundrum in a comparative perspective
• PART II European standards for protection of fundamental rights in the internet
• PART III Models of constitutional adjudication on internet issues: a comparative perspective
• Index
• Table of cases