Behring, R.

Golia, A.

English

MPG.PuRe

1/6Online fascist propaganda and political participation inCasaPound v. Facebookverfassungsblog.de/private-transnational-power-without-authority/Angelo Jr GoliaRachel Behring18 Februar 2020Private (Transnational) Power without AuthorityOn 9 September 2019 Facebook banned from its platforms all pages and profiles relatedto the Italian far-right organization “CasaPound”, for the violation of its CommunityStandard no. 12 (hate speech and incitement to violence). CasaPound – whose politicalprogram is a classic combination of totalitarianism, militarism and nationalism – is arelatively small but extremely active group, targeting with violent actions minorities insuburban slums, political opponents and sometimes left-wing journalists. On 11December 2019, the Tribunal of Rome (ToR) adopted the precautionary measure orderingFacebook Ireland Ltd. to restore the pages and their content and to pay the losses. Thedecision raises significant issues in several respects and might serve as a model tocourts beyond Italy.Although many members have been convicted in past years, CasaPound as such is yetto be dissolved via existing anti-fascist legislation. It is therefore a “legitimate” actor in theItalian political landscape, regularly taking part in local and national elections.Despite its poor election results, the political danger posed by CasaPound and similarorganizations should not be underestimated. It results from their contribution to thenormalization of fascist-like language and ideas, an ongoing transnational process inwhich social media play a crucial role. Given the features of contemporary politicaldiscourse, CasaPound’s very “existence” as a political actor of any significance dependson its +40,000 Twitter followers and – before the ban – 280.000 Facebook “likes”, withoutwhich it would probably be a little less than a politically-flavored criminal organization.However, and quite importantly, CasaPound hardly posted online explicitly fascist content,rather saving this kind of speech for other channels of communication.The Tribunal’s line of reasoning2/6The first issue relates to the quite unconventional line of reasoning, which did not focuson the parties’ contractual obligations, but rather on those arising directly from art. 49Constitution (“Any citizen has the right to freely establish parties to contribute todetermining national policies through democratic processes”). Importantly, the ToR’sdecision can only be understood in the context of the right to (collective) politicalparticipation, rather than the – admittedly overlapping but distinct – right to freedom ofexpression. Keeping in mind these starting points, the reasoning can be summarized inthree steps.1. Facebook has de facto reached a systemic role to the purposes of politicalparticipation under art. 49 Const. 2. Given such systemic role – and departing from a relatively well-established caselaw of the Supreme Court (e.g. judg. no. 31022/2015) qualifying Facebook as amere “private messaging service establishing a network of relationship amongpeople in the same system” – the ToR held that Facebook has a “special position”towards private individuals. 3. As a further consequence, besides the obligations arising from its contractual will,Facebook is bound by those arising from constitutional principles (principicostituzionali e ordinamentali). Therefore, although it did not explicitly refer to suchdoctrine, the measure constitutes an example of direct horizontal effect(unmittelbare Drittwirkung), whereby private actors are directly bound byconstitutional duties, i.e. without resorting to constitution-oriented interpretation ofprivate law or contractual clauses; or to the declaration of unconstitutionality ofapplicable legislation.Having re-shaped the range of Facebook’s obligations, the ToR found that the complaintconcerning CasaPound’s right to political participation had some prima facie ground(fumus boni iuris) and was potentially subject to irreparable damage pending ordinaryproceedings (periculum in mora), thus granting the precautionary measure. Althoughadopted in a proceeding with limited evidence-collection and prima facie meritsassessments – and the ToR itself stressed that the ordinary proceedings could well turnout differently – the decision still provided several interesting elements of reflection,especially as concerns the power relationship between Facebook and CasaPound.Facebook in the eyes of the ToR: bound by the Constitution but no“keeper of the Constitution”Already at the linguistic level, the opinion significantly switches from “Facebook IrelandLtd.” (the procedural defendant) to “Facebook” tout court, somehow downsizing therelevance of corporate personality to the purposes of the decision. Put differently: TheToR’s language gives the impression that it is not Facebook as an individuated corporateperson to infringe upon the constitutional obligation, but rather Facebook as a (business)enterprise, a transnational actor in control of a good amount of the communication flowrelevant to political discourse and participation. Further, the ToR explicitly qualified theban as a “sanction”, rather than a countermeasure to a breach of contract.3/6At a more substantial level, the decision can be framed as a review of the proportionalityof Facebook’s conduct. According to the ToR, the contents shared by CasaPound did notreach a degree of gravity such as to justify the outright ban, i.e. a de facto exclusion frompolitical debate: a more proportionate (and possibly legitimate) reaction would have beenremoving the single contents, with a more circumscribed limitation of CasaPound’s singleexercises of freedom of speech.Facebook’s argument, that the ban “sanctioned” the fact that CasaPound is a politicalorganization intrinsically against the Constitution and human rights law, was also rejected.Neglecting such role of “keeper of the Constitution”, the ToR held that it is not up toFacebook to determine if CasaPound is a legitimate actor in the Italian politicallandscape, taking also into consideration that it has been active for more than ten yearswithout being outlawed by competent Italian authorities. Admittedly, such statement goesin a direction opposite to that taken in Germany with the contested 2017 NetworkEnforcement Law (NetzDG) and in France with the bill no. 1785, designing systemswhereby major social media platforms are tasked with – and potentially held responsiblefor – gate-keeper functions against hate speech and fake news on the Internet.In a nutshell, the ToR “saw” in legal terms the private power and accordingly attachedobligations to it, but did not recognize Facebook as a legitimate actor to autonomouslytake decisions with potentially far-reaching political consequences. The ToR thus deniedFacebook’s authority – at least as long as it uses its power in a way deemeddisproportionate. In this last regard, looking at Facebook as a global institution and itsStandards as a transnational private regulation or even a semi-autonomous legal system,it could be argued that the decision features some elements of the Italian ‘counter-limits’doctrine, the (in-)famous tool of management of inter-systemic relationship aimed atpreventing external legal sources to be applied into the domestic system, when they riskto jeopardize the “fundamental principles of the constitutional order”.The quest for a (transnational) horizontal effect and the need forsupranational regulationThe ToR’s measure stands out for its bold application of (direct) horizontal effect. Indeed,while the horizontal effect is not a novelty in the practice of Italian courts, the ItalianConstitution – contrary to arts. 1(3) and 9(3) of the German Basic Law or § 8(2) of theSouth African Constitution – has no express provision concerning the scope of applicationof constitutional rights. As a result, the horizontal effect has been applied in quite anunpredictable way, mainly on a case-by-case basis. The differences with the USfunctional equivalents – the “State action” and “public forum” doctrines – are especiallystriking, as even the most advanced application of these latter require some “color ofState law” (see Knight First Amendment Institute v. Trump, 9 July 2019; ManhattanCommunity Access Corp. v. Halleck, 587 US __ (2019)). Certainly, the US solutions givebetter guidance to judges and more certainty to private individuals, but remain largelyblind to social de facto powers that might be able to infringe upon constitutional rights justlike State actors. Therefore, while the dangers to legal certainty should not be4/6underestimated, such admittedly ambitious attempts must probably be welcomed, in anage where transnational private (especially economic) powers are more and more able toescape constitutional constraints.However, the decision also raises the conflict-of-laws issues typical of any horizontaleffect towards transnational actors. Firstly, the measure is to be enforced by Irish courts,and it cannot be excluded that an order to restore the access to a social media platform ofa far-right organization may run contrary to the Irish ordre public under art. 45 Reg.1215/2012/EU. Secondly, the order may give rise to overlapping and conflictingobligations under the laws of other States, e.g. the above-mentioned German NetzDG.Faced with conflicting impulses coming from different States, a transnational actor suchas Facebook has to select and re-elaborate them in its internal law- and decision-making.This process inevitably results in a form of legal Darwinism, penalizing weaker States.The ToR’s decision therefore highlights the need for a comprehensive hard law regulation(at least) at the European level, which would go beyond the piecemeal approach adoptedby the EU so far with Dir. 2000/31/EC on E-Commerce; Framework Decision2008/913/JHA requiring Member States to sanction by means of criminal law publicincitement to violence or hatred; Dir. 2010/13/EU on Audiovisual Media Services; andlastly with the 2016 Code of conduct on countering illegal hate speech online, a soft lawinstrument of co-regulation, elaborated by the Commission together with four leadingcompanies of the industry.However, any form of supranational regulation, especially if restrictive of the rights offreedom of speech and to political participation, 1) would require a difficult politicalconsensus, among States interpreting in extremely different ways their identities of“militant democracies”; and 2) must take into account existing human rights law.Therefore, it is also worth briefly assessing the ToR’s decision against this background.Varieties of “militant democracies” and compatibility withinternational lawThe obstacles concerning the reach of a consensus among different States on banningparties from political arenas emerge entirely, if one sees the ToR’s decision as amanifestation of the Italian (version of) “militant democracy”. The latter has been famouslycategorized by Niesen as a “negative Republicanism”, i.e. the self-definition of ademocracy in contrast to a particular authoritarian past. Such “negative Republicanism”differs markedly from the abstract and quasi-universal German approach, labelled as“anti-extremism”, not just because it is past-oriented, but also because it assumes arelatively more fragmented political-ideological landscape, and thus a reactive rather thanproactive attitude towards anti-democratic tendencies.Such “negative Republicanism” is based on the idea that – instead of being expelledoutside the political arena – extremist movements can be re-absorbed into aconstitutional (“Republican”) consensus through the hidden but constant “normalizingeffect” of democratic procedures. Right or wrong, such attitude gives further explanations5/6as for why the Italian anti-fascist legislation led to the dissolution of a far-rightorganization only once (Ordine Nuovo in 1973); and for the stark rejection by the ToR ofFacebook’s (self-attributed) “gatekeeper functions”. To sum up, the ToR’s decision doesnot run against the tenets of “militant democracy” but rather represents a specificimplementation of them.At the same time, the ToR’s measure cannot be said to infringe upon international law.After all, there is no positive obligation for States to generally prevent fascist or any otherextremist organizations to access social media platforms. On the contrary, under humanrights law the right to free speech can only be restricted according to narrowly definedparameters. Hate speech regulation must carefully weigh freedom of expression (art. 19ICCPR) against prohibition of incitement to hatred (art. 20 ICCPR). Indeed, there is only afine line between the two, visible from the “safety net” of freedom of expression thathuman rights instruments often include. The above-mentioned Framework Decision2008/913/JHA or the Additional Protocol to the Cybercrime Convention, for instance,underline that they shall not interfere with freedom of speech standards. Where such aprovision is not explicitly comprised, States have often brought forward reservations on itsbasis.Of course, freedom of expression cannot be understood as to per se cover hate speech.Art. 10 ECHR, for instance, has traditionally been interpreted by the ECtHR as tocomprise an internal barrier to incitement of hatred (see e.g. Perinçek v. Switzerland, 15October 2015). Only very recently has art. 17 on the prohibition of abuse of a right beenapplied in the context of anti-Semitic speech (M’Bala M’Bala v. France, 20 October 2015).Overall, limiting the freedom of expression nonetheless “must remain an exception”, aseven the Rabat Plan of Action on the prohibition of hatred puts it. For the specific case ofonline publications, the Human Rights Committee has also clarified in its GeneralComment No. 34 that this entails only “content-specific” removals being permissible.Further, from the case law of the ECtHR it emerges that, far from being obliged to restrictthe overall-access of an extremist political organization to social media, States are onlyallowed to ensure that the respective postings are deleted (Delfi v. Estonia, 16 June 2015)in cases where single content constitutes unlawful hate speech or incitement to violence.Without the pivotal element of hate speech or “clearly unlawful” content the right to freespeech is to be ensured (Phil v. Sweden, 7 February 2017;Magyar TartalomszolgátatókEgyesülete and Index.hu Zrt v. Hungary, 2 February 2016). A positive obligation hasrecently been found to exist (Beizaras and Levickas v. Lithuania, 14 January 2020) but,once again, it concerned only the issue of investigating whether a posting might constitutehate speech, and not the overall access to social media.After this brief excursus, it is fair to conclude that there is no incompatibility betweenexisting international law and the ToR’s decision. This is especially true, if one considersits stark distinction between the right to freedom of expression concerning the singlecontent/posting and the right to political participation concerning the overall access tosocial media platforms, as well as the related proportionality assessment of Facebook’s6/6“sanction”. As formal, problematic and far-fetched as this distinction may be, it addsfurther elements of complexity to a decision that probably will not remain isolated, andwhose line of reasoning might serve as a model to other courts worldwide.LICENSED UNDER CC BY NC NDSUGGESTED CITATION  Golia, Angelo Jr; Behring, Rachel: Private (Transnational)Power without Authority: Online fascist propaganda and political participation inCasaPound v. Facebook, VerfBlog, 2020/2/18, https://verfassungsblog.de/private-transnational-power-without-authority/, DOI: 10.17176/20200218-164225-0.Explore posts related to this: Other posts about this region: ItalienLICENSED UNDER CC BY NC ND

Private (Transnational) Power without Authority. Online fascist propaganda and political participation in CasaPound v. Facebook

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Private (Transnational) Power without Authority. Online fascist propaganda and political participation in CasaPound v. Facebook

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