Study of Fundamental Rights Limitations for Online Enforcement through Self-Regulation

The use of self-regulatory or privatized enforcement measures in the online environment can give rise to various legal issues that affect the fundamental rights of internet users. First, privatized enforcement by internet services, without state involvement, can interfere with the effective exercise of fundamental rights by internet users. Such interference may, on occasion, be disproportionate, but there are legal complexities involved in determining the precise circumstances in which this is the case. This is because, for instance, the private entities can themselves claim protection under the fundamental rights framework (e.g. the protection of property and the freedom to conduct business). Second, the role of public authorities in the development of self-regulation in view of certain public policy objectives can become problematic, but has to be carefully assessed. The fundamental rights framework puts limitations on government regulation that interferes with fundamental rights. Essentially, such limitations involve the (negative) obligation for States not to interfere with fundamental rights. Interferences have to be prescribed by law, pursue a legitimate aim and be necessary in a democratic society. At the same time, however, States are also under the (positive) obligation to take active measures in order to ensure the effective exercise of fundamental rights. In other words, States must do more than simply refrain from interference. These positive obligations are of specific interest in the context of private ordering impact on fundamental rights, but tend to be abstract and hard to operationalize in specific legal constellations. This study’s central research question is: What legal limitations follow from the fundamental rights framework for self-regulation and privatized enforcement online? It examines the circumstances in which State responsibility can be engaged as a result of selfregulation or privatized enforcement online. Part I of the study provides an overview and analysis of the relevant elements in the European and international fundamental rights framework that place limitations on privatized enforcement. Part II gives an assessment of specific instances of self-regulation or other instances of privatized enforcement in light of these elements

The Right to Be Virtually Clothed

Nonconsensual pornography, also known as, “revenge pornography” or “cyber exploitation,” is the publication of a person’s nude image or video online by a third party. It is a privacy violation that can ruin a person’s social and professional life. Although advocates and lawmakers have done substantial work addressing this problem, current legal remedies fall short. This Comment argues that two privacy protections developed abroad, the “right to be forgotten” and the “right to delete,” should be applied domestically to nonconsensual pornography. One aspect of the “right to be forgotten,” i.e., the ability to remove nonconsensually posted images from search engine results, could be developed domestically to counter the reputational impact of revenge porn. Additionally, the “right to delete,” which is currently limited to the copyright context in the United States, could be expanded so that courts could mandate removal of images both from websites and from individuals’ possession once consent has been withdrawn. These rights—which together compose a right to control nonconsensually published nude images online—herein dubbed the “right to be virtually clothed”—will help address reputational and social damage as well as reduce the overall impact of revenge porn first by obscuring the underlying content and ultimately by removing it from the web

Fostering Freedom Online: The Role of Internet Intermediaries

“Fostering Freedom Online: the Role of Internet Intermediaries” is the title of a new title in the UNESCO Internet freedom series. With the rise of Internet intermediaries that play a mediating role on the internet between authors of content and audiences, UNESCO took a joint initiative, with the Open Society Foundations, the Internet Society, and Center for Global Communication Studies at the University of Pennsylvania’s Annenberg School for Communication, to examine this recent historical phenomenon and how it impacts on freedom of expression and associated fundamental rights such as privacy. The case study research, collaboratively delivered by 16 international researchers led by Ms Rebecca MacKinnon and Mr Allon Bar, as well as 14 members of International Advisory Committee, covers of three categories of intermediaries: Internet Service Providers (fixed line and mobile) such as Vodafone (UK, Germany, Egypt), Vivo/Telefônica Brasil (Brazil), Bharti Airtel (India, Kenya), Safaricom (Kenya), Search Engines such as Google (USA, EU, India, China, Russia), Baidu (China), Yandex (Russia) and Social Networking Platforms such as Facebook (USA, Germany, India, Brazil, Egypt), Twitter (USA, Kenya), Weibo (China), iWiW (Hungary). The research showed that internet intermediaries are heavily influenced by the legal and policy environments of states, but they do have leeway over many areas of policy and practice affecting online expression and privacy. The findings also highlighted the challenge where many state policies, laws, and regulations are – to varying degrees – poorly aligned with the duty to promote and protect intermediaries’ respect for freedom of expression. It is a resource which enables the assessment of Internet intermediaries’ decisions on freedom of expression, by ensuring that any limitations are consistent with international standards

Send the Word Over There: An Offshore Solution to the Right to Be Forgotten

The right to be forgotten is a subject of contention in both the United States and the European Union. In the E.U., the right to be forgotten gives one the right to demand that information—even if published legitimately—be taken down or removed from search engine results. While well-intentioned, this has led to concerns of free press restrictions. In contrast, the right to be forgotten is not recognized in the U.S., although there are scholars who would like to see such a right here. This Note takes the view that introducing a right to be forgotten would be contrary to the first amendment and privacy law frameworks in the U.S., and further is not desirable based on the European experiment. In 2019 the European Court of Justice held in Google v. CNIL that a multinational platform does not have to comply with E.U. regulations on the right to be forgotten on its non-European platforms. Building on this distinction, this Note suggests an “offshore solution” to host articles and search engines outside the reach of European jurisdictions. This Note is of interest to scholars and practitioners curious about the right to be forgotten debates, as well as the general differences in jurisprudence between the U.S. and the E.U. in balancing privacy rights against freedom of speech and the press

Session on Geoblocking Tools and the Law at Law, Borders, and Speech Conference at Stanford Law School

Professor Marketa Trimble appeared on a panel at the Law, Borders, and Speech Conference hosted by The Center for Internet and Society at Stanford Law School on October 24, 2016. The session defined and discussed geoblocking and its implications for internet users, government, and private companies. A video of the session is available here. Additionally, Professor Trimble\u27s presentation is available here