By Professors Duncan French and Louis J. Kotzé

The world is facing an ecological crisis; a human-made ecological crisis. President Biden has indicated that we have the 2020s to try to ameliorate the worst excesses of climate change; that ‘[s]cientists tell us that this is the decisive decade – this is the decade we must make decisions that will avoid the worst consequences of the climate crisis’ (Presidential speech, 22 April 2021). Climate change is a critical part of the ecological crisis, and while it may be the most important concern, but it is certainly not the only issue we are confronting. As Sir David Attenborough and Professor Johan Rockström show in the recently released Netflix film, “Breaking Boundaries: The Science of Our Planet”, we face a plethora of challenges, amongst them the collapse of the Earth’s biodiversity. As custodians, humanity has failed to care for the Earth, and we are now counting the cost and at an alarming and accelerated rate. Is it too late to stop ecological destruction? The signs are certainly not good … but there is still some hope!

One of the most potent tools developed in the past few years to measure our fate, as well as what progress towards better global environmental protection would look like, is the planetary boundaries framework. Developed by the Stockholm Resilience Institute in 2009 under the leadership of Prof. Johan Rockström, this framework identifies 9 global boundaries – amongst them climate change, biodiversity, ocean acidification, stratospheric ozone depletion, and land-use change – which individually and cumulatively delimit a safe operating space for humanity to continue to exist on Earth, but only so long as we stay within the boundaries. Once we cross these boundaries- and the evidence suggests we have in relation to biodiversity and biogeochemical flows (phosphorus and nitrogen pollution), the impact of humanity takes on a new level of risk previously unknown. Of course, as with all risk, the exact effect is difficult to predict accurately in advance, but the weight of evidence is such that we know that it will impact us in increasingly deleterious and potentially exponential ways. Climate change, as a singular boundary, is a particularly significant risk as its impact is likely to act as an aggravating multiplier of all other ecological risks that we face.

In our recently released collection, the Research Handbook on Law, Governance and Planetary Boundaries, an eminent group of legal scholars look at the legal implications of the planetary boundaries approach, and asks what can law do to support humanity to stay within the safe operating spaces identified by the boundaries. Of course, we have had 50 years of international environmental law, and with some success; but on the whole the state of the planet has only worsened over the time. Moreover, whilst environmental law has sought to engage with scientific evidence, it has often done so through a filter of politics and economic compromises, as well as North-South diplomacy, that lessens the ecological efficacy of the rules being adopted. Implementation and governance are similarly challenged by the tension between scientific necessity, political will and economic benefits.

The planetary boundaries approach – not perfect either in its design or elaboration – nevertheless challenges lawyers, policy-makers and civil society to look again at the global purposes underpinning multilateral environmental agreements, other environmental rules and the institutions that have been set up to facilitate global environmental governance. The planetary boundary framework offers an opportunity to ask not only whether these go far enough to address the deepening ecological crisis, but also whether actually we have the appropriate rules for the challenges we face? Some of the planetary boundaries remain noticeably weak in terms of legal coverage (mention has already been made of biogeochemical flows), whereas other challenges remain dogged by continued assertions of territorial sovereignty (eg. deforestation and land-use change), or lack of prioritisation, and even insufficient understanding (chemical pollution and the regulation of novel entities).

Though it is an obvious truism that only the right politics will generate the right law, and at present we don’t see enough of the former to have hope that we will see more of the latter, there is nonetheless much we can do within the current paradigm. These include full and effective support of and participation in those treaties that we do have; regular and effective monitoring, reporting and verification of State compliance; sufficient funding and technical assistance to the global South to ensure meaningful global engagement; and improving how our scientific knowledge feeds into the legal and policy sphere (and with much less filtering by divisional politics and economic wrangling).

But will all this, and other improvements within the current paradigm, be enough? The concern must be that we have left it too late, and that the planet is now faced with a future that no previous generation in the planet’s history has had to face before. Ever since the Industrial Revolution went hand-in-hand with the Enlightenment, we have believed ourselves masters of our own destiny. The Covid-19 pandemic has shown how easily we can be thrown off course from our perceived inalienable rise in our own self-improvement from one generation to the next. Of course, that is a myth perpetuated largely in the North at the expense, and as a result, of exploitation of the South. What nature is telling us is that very soon, the entire planet will look very different from that experienced even fifty years ago, with nature as our unempathetic master. Law, as a human tool, needs to lift the heavy burden, before what we think we know about the world is itself historical.

The Research Handbook on Law, Governance and Planetary Boundaries, edited by Duncan French, Pro Vice Chancellor of the College of Social Science and Professor of International Law, University of Lincoln, UK and Louis J. Kotzé, Research Professor, North-West University, South Africa and Senior Professorial Fellow in Earth System Law, University of Lincoln, UK is out now.

Read chapter one free on Elgaronline.

By Juncal Montero Regules

How is the law shaping online speech? Which roles and responsibilities do internet intermediaries have towards fundamental rights in the current regulatory regimes? Will those roles and responsibilities, together with today’s technical infrastructure, lead to an actual democratisation of knowledge spurring a possible decrease in social inequalities? Is the marketplace of ideas giving rise to the proliferation of disinformation and lead to new forms of censorship? Can it inflict grave harm to free speech? These are some of the questions addressed in the book Fundamental rights protection online. The future regulation of intermediaries, an essay collection which brings together outstanding academics exploring the current state-of-the-art of online speech regulation through the prism of fundamental rights. The challenges that the internet poses to fundamental rights are discussed taking internet intermediaries as the subject study. Different legal perspectives, rich analyses and expert contributions shape a timely book with relevant content for policymakers, students, legal practitioners and academics interested in internet law, information law and human rights.

The essay collection reflects upon whether and how to regulate online content, focusing on fundamental rights protection, and specifically on freedom of expression. This objective passes necessarily through intermediaries and through what the editors of the book call “speech curation”, referring to a public and private curation of speech that goes beyond the traditional and binary dynamics of terms such as “regulation” and “moderation”. In this sense, the book is anchored in the idea of internet governance, understood as a multi-level decision-making system whose actors are the public and private sector – an internet governed, and not (only) legislated, regulated or moderated, both by states and private corporations. The spine of the book is freedom of expression, and therefore democracy as an ultimate value. The essays depict the landscape of the regulation of intermediaries from a fundamental rights perspective; they also conceptualise, contextualise and assess the hot spots, thus unfolding the debate. To this end, part I theorises conceptual issues of intermediary regulation, while the remainder of the book focuses on national, European and international approaches regulating intermediaries.

In part I, the vital role of courts and judicial framing in protecting fundamental rights online is put on the table, as well as some of the reasons behind the transatlantic divide, introducing the idea, which underlies all essays and the book itself, that states are to get involved in internet governance. Another fundamental concept for online content curation is presented in the second chapter, namely, the filter bubble and its impact on human rights. The concept of filter bubble introduces the conceptual issue of freedom of expression operating within a digital environment which mainly works through personalisation and, thus, through biased systems. The first part of the book thus serves as a conceptual starting point to the rest of essays, as well as a point of reference to each of them, framing the debate on internet intermediaries and their regulation. Part II of the book discusses content moderation practices in France, Germany, Italy and the United States through the examination of the German Network Enforcement Act, the French law on fake news, the Italian courts’ inconsistent take on the status of intermediaries, and the American approach to content curation. Part III delves into the European legal landscape: one chapter explores the hybrid role of intermediaries and on how the EU intermediary regime should evolve; another chapter addresses and critically assesses the case-law of the Court of Justice of the European Union (CJEU) shaping the legal regime of intermediaries; one other chapter discusses the EU soft-law measures related to intermediaries concerning disinformation and hate speech; the last chapter of this part on the Copyright Directive focuses on the compatibility of its Article 13 with the CJEU’s jurisprudence. In the fourth and final part, the international law landscape is presented through the  European Court of Human Rights’ (ECtHR) interpretation of the liability regime of intermediaries and its freedom of expression implications, with a final chapter discussing intermediaries from the perspective of business and human rights. A heterogeneous landscape is presented here, with sometimes contradicting approaches and unclear provisions, but whose multi-level regulatory approaches, new legislative developments, and recent proposals sketch interesting dynamics and dialogues which are shaping the protection of fundamental rights online.

The ultimate objective of this work is to contribute to the normative question of the role of law in protecting fundamental rights online. The analysis carried out in the chapters is focused on the regulation of intermediaries through public law. The role of intermediaries is not analysed independently – their role and responsibilities are assessed within the context of national, supranational and international legislation. Intermediaries are, however, active in content curation, as acknowledged throughout the collection of essays. Examining the protection of fundamental rights online without considering intermediaries’ actions per se portrays a somehow incomplete picture, where private regulations shaping online content and affecting freedom of expression are not fully assessed—intermediaries police content through numerous and diverse methods, including the implementation of enforcement measures. The development of the Facebook Oversight Board and the implementation of fact-checking labels in Twitter are some late developments which exemplify the capabilities of intermediaries to shape online content, impacting free speech. By focusing exclusively on public law’s protection of fundamental rights online, this collection of essays is incomplete when it comes to discussing the state-of-the-art of freedom of expression and intermediaries on the Internet. Including all aspects of this field in one work would, however, be overly ambitious. Fundamental rights protection online puts a necessary building block for the construction of a complete assessment of the protection of free speech and fundamental rights online. The book is to be considered within the bigger picture of current and upcoming works on the field, which together will help shape the future of the Internet.

A number of new works on free speech, intermediary and content regulation, which are now seeing the light, contribute to the construction of a complete assessment of the protection of fundamental rights online. This collection of essays complements them and contributes to the debate they articulate. Positive free speech: rationales, methods and implications (Andrew T Kenyon & Andrew Scott, eds.), is premised on the idea of positive free speech as entailing obligations for states to act in support of such freedom, its goals and rationales. One of the ways in which such obligations are extended is “the contemporary communications environment”, understood as the complex communication environment where a myriad of actors and platforms play a role. Such positive free speech obligations in the communication environment are a premise in Fundamental rights protection online: the idea of positive free speech is an implied theoretical basis on which the states’ intervention in online content operates. The legislation aimed at content curation by regulating intermediaries is, in this sense, developing that idea; the legislation analysed in this work can thus be seen as a practical development of positive speech. Positive speech assesses positive speech justifications, potential developments and mechanisms, while Fundamental rights protection online analyses their implementation within online content. The changes taking place worldwide in the fields of intermediaries and free speech are analysed through actual legislation. This analysis complements theoretical multi-disciplinary works on the Internet and free speech such as Free speech in the digital age (Susan J. Brison & Katharine Gelber, eds.), which makes a multi-disciplinary examination of how the new technologies and the global reach of the internet are changing the theory and practice of free speech, mainly from the perspective of American free speech theory. Fundamental rights protection online, in contrast, takes a European viewpoint and looks at free speech online from the specific lens of regulatory developments. The impact of such regulation on freedom of expression is explored from the perspective of each jurisdiction and legislation, and its assessment is focused on intermediaries, leaving out other spheres examined in Free speech in the digital age such as theoretical and conceptual discussions on online free speech, international law regulatory approaches and non-legal issues. In this sense, Fundamental rights protection online can be seen as a European continuation of Free speech in the digital age, focused as it is on the regulation of intermediaries in Europe, and its impact on freedom of expression and content curation.

In any event, the variety of topics that the book covers is remarkable. Overall, the work provides detailed and insightful reading for those interested in the regulation of intermediaries and the situation of fundamental rights online, especially freedom of expression. It paves the way for a necessary in-depth debate on the articulation of the protection of human rights online. The essays included in the book make a novel contribution to the existing literature on internet regulatory problems, mostly because of the contributors’ detailed, in-depth and varied analysis of national, supranational and international attempts legislating online speech curation. They clearly illustrate how the law has been unsettled on treating intermediaries and contextualises freedom of expression online, its challenges and the issues derived from its protection. As a whole, Fundamental rights protection online. The future regulation of intermediaries makes a significant contribution to our understanding of online content curation, fundamental rights and freedom of expression, especially, but not only, in Europe.

Juncal Montero Regules is a PhD Fellow of Research Foundation Flanders (FWO) at the Faculty of Law, Hasselt University, Belgium.

Suggested citation: Juncal Montero Regules, ‘Fundamental rights protection online. The future regulation of intermediaries’ IACL-AIDC Blog (17 December 2020) https://blog-iacl-aidc.org/book-reviews/2020/12/17/book-review-fundamental-rights-protection-online-the-future-regulation-of-intermediaries

Fundamental Rights Protection Online: The Future Regulation of Intermediaries, Edited by Bilyana Petkova, University of Graz, Austria and Yale Information Society Project and the Georgetown Law Center on Privacy and Technology, US and Tuomas Ojanen, University of Helsinki, Finland is out now.

Read Chapter 1 for free on Elgaronline.

Professor Robert Cryer, one of the UK’s leading international criminal lawyers and a prolific contributor to various books published by Edward Elgar, sadly passed away few days ago. Some of his leading academic contributions over the past decade have been published with Elgar, on various such topics as war crimes, international crime of torture, immunities before international criminal courts, philosophy of international criminal law, or analysis of the general state of research on the law of the use of force. This has been only a small share of vast contribution that Rob has made to academic discipline to which he had dedicated his entire adult life. Despite his sad and premature death that brought tragedy and devastation to his many friends, Rob has more than succeeded in becoming one of leading voices of international legal scholarship both in the UK and worldwide. His research, whether sole-authored or written in collaboration with his valued friends and colleagues, invariably set the highest standard of academic rigour and analytical creativity that many could admire and learn from, but only relatively few have so far attained.

We have made the chapters linked above free to access on Elgaronline for a limited time.

Brigitte Lindner and Ted Shapiro blog on the DSM Copyright Directive.

Aaron Fellmeth blogs on the multiple challenges of teaching International Business Transactions (IBT).

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