Online platforms and human rights - Cyberlaw seminar 16/2

Online platforms, such as social networks and other interactive online services, give rise to transnational “cyber-spaces” where individuals can gather and express their personalities imparting and receiving information and ideas. By reason of their transnational dimension as well as of their private nature, online platforms are regulated through contractual provisions, unilaterally established by the platforms’ providers and enshrined in the platforms’ Terms of Service (ToS).

Hence it may be argued that, by regulating the use of information within a specific online platform, ToS undertake a normative function that may be compared to that of the “Law of the Land”. However, differently from the Law of the Land, the contractual provisions delineated in the ToS can be applied in different jurisdictions, thus affecting platform users in spite of their geographical location. Furthermore, the private decisions that may be taken by the platform provider in order to implement the ToS (e.g. removing content which is not compatible with the ToS provisions) are not subject to the constitutional guarantees that frame public action in national jurisdictions.

In addition, it should be noted that the spectrum of rights and remedies that are granted to platform users through the ToS may be difficult to comprehend or even read in its entirety, and similar platforms may be regulated through very different provisions that might be unilaterally modified by platform providers.

In our seminar next Thursday 16 February, we will discuss the framework through which one could analyze the ToS of major online platforms from a human rights perspective. In particular, we will look at the scope of the international human rights to freedom of expression, privacy and due process, and the role of positive obligations imposed on States to ensure the existence of a sufficient protection of those rights.  As background to our discussion, please refer to:

- The book "Terms of Service and Human Rights: An Analysis of Platform Contracts", available at http://internet-governance.fgv.br/sites/internet-governance.fgv.br/files/publicacoes/terms_of_services_06_12_2016.pdf (in particular focusing on pp. 17-28, 92-107, 127-147)

- The article "Virtues and Perils of Anonymity: Should Intermediaries Bear the Burden?", available at: http://www.jipitec.eu/issues/jipitec-5-3-2014/4091 (in particular focusing on paras. 46-55).

- The episode of the Techdirt podcast "Terms of Service Are the New Constitution: Do They Need a First Amendment?"  https://www.techdirt.com/blog/podcast/articles/20150115/11423629712/techdirt-podcast-episode-7-terms-service-are-new-constitution-do-they-need-first-amendment.shtml

See also this interesting recent development on Google's Play Store: https://www.slashgear.com/google-play-prepares-to-remove-apps-over-missing-privacy-policies-09474464/

Look forward to the discussion. See you on Thursday!