By Rosa Celorio

Women and gender equality issues are today deeply embedded and present in global and national human rights concerns. They find expression in many legal instruments. They are reflected at the national level in many countries in Constitutions, legislation, and national policies. They are addressed in case judgments by Supreme, Constitutional, and lower courts. There is also an international law framework designed to govern the human rights of women with direct and comprehensive obligations for states, still led by the promise of the Convention on the Elimination of all Forms of Discrimination against Women (hereinafter “CEDAW”). The efforts of this global system are greatly complemented by active regional human rights protection systems in the Americas, Europe, and Africa, and emerging regional approaches in Asia and the Middle East. There are also many bodies created at the global, regional, and national levels with the objective of advancing the protection of the rights of women.

Despite these advances however, women still experience daily violations of their civil, political, economic, social, and cultural rights. The Beijing Declaration and Platform for Action adopted in 1995 reaffirmed women’s equality as a basic human right and the paramount nature of their rights to live free from discrimination and gender-based violence. More than twenty-five years later, women still face formidable challenges to see their human rights fully respected, protected, and fulfilled. One hundred years have passed since the adoption of the Nineteenth Amendment of the United States Constitution granting women the right to vote, but the struggle continues to see their full citizenship rights respected, and for women to fully and effectively participate in public and political life.

Women and girls still constitute the vast majority of gender-based violence victims, suffering widespread domestic violence, sexual violence, psychological, and economic harm. They also experience forms of intersectional discrimination, racism, inequality, and exclusion. Women still carry most of the unpaid work at home, caring for children, the elderly, and the sick. Women are also affected by poverty, and constitute a large component of workers in the informal economy, lacking many social and employment protections. Women are still largely absent from decision-making positions in the political, civil, social, and economic affairs of their countries. Women and girls moreover face significant restrictions to access the information necessary to make autonomous decisions concerning their sexual and reproductive lives, and daunting barriers to access health services they only need due to their biological differences. Women human rights defenders still lose their lives and suffer forms of harassment and violence for voicing concerns and defying social expectations. We live in societies in which equality for women and a full protection of their human rights is still a distant dream. A gender perspective is still lacking from most decision-making.

The study of the rights of women is made more intricate in the present by the fact that many new social developments greatly impact the way women exercise their human rights. These include the COVID-19 pandemic, the MeToo movement and its aftermath, environmental degradation and climate change, unregulated business practices, and the strength and influence of non-state actors. Women in different circumstances still face structural and intersectional discrimination, racially-motivated bias and violence, hate speech, xenophobia, and violence in the internet, technology, and social media spaces. Critical advances in the area of sexual and reproductive rights face severe backlash and are under threat.  Sexual orientation, gender identity, gender expression, and sex characteristics have become major elements in the way we define women and how human rights concerns impact them. The study of women’s rights today involves contemplating the present-day contexts in which these rights are limited, but also exercised. 

This makes necessary to combine and reconcile the history of the human rights of women with its modern scenarios and manifestations, and to adapt the current legal framework to the contemporary challenges that women face to see their human rights fully protected.  As we begin the year 2022, the world is still reeling from the effects of the COVID-19 pandemic, which has tested women in their resilience, stamina, and survival skills. All of their human rights have been challenged in some way during this crisis. Women, however, have also been key in addressing the pandemic. Women constitute a large component of the health workers who have been risking their lives daily to fight the disease and care for those affected. Some of the most visible country leaders fighting the pandemic have been women, and with successful results. Women also compose a large group of the journalists, human rights defenders, and researchers who have brought information daily to the public of the magnitude and spread of COVID-19. In the author’s view, this is a moment with an important legacy in the way we perceive the development and effectiveness of human rights norms concerning women, and how they are applied when our humanity is tested.  It is a moment that allowed us to see women as multi-dimensional beings, in many roles beyond victimhood, as political leaders, doctors, nurses, teachers, scientists, and heads of household.

A watershed moment like the COVID-19 pandemic can end up transforming the way women work; lead; participate in education and public, political, and family life; and use technology in the future. International law can provide an important roadmap and structure for these transformations, and can evolve itself to respond to contemporary times and the challenges faced by women.

Foremost, a contemporary look of women’s rights issues requires viewing women not only as ongoing victims of gender-based violence and discrimination, but also as leaders, shapers, and influencers.  Women are key to resolve many of the most important human rights issues affecting the world, such as climate change, intersectional and racial discrimination, extreme poverty, food and water shortages, armed conflicts, ongoing violence, and barriers to access technological advances.  Many legal standards related to the rights of women have been developed considering women solely as passive subjects of rights and as victims. It is only recently that women are increasingly perceived as active participants, leaders, agents of social change, and shapers of culture.

A legal approach guided by the goals of autonomy, dignity, personal liberty, and effective participation is a precondition to see the full realization of women’s rights in the present and the future.  

Women and International Human Rights in Modern Times

By Rosa Celorio, Burnett Family Associate Dean and Professorial Lecturer for International and Comparative Legal Studies, George Washington University Law School, US

Out now, available on our website. Read Chapter 1: Discrimination against women: doctrine, practice, and the path forward, 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.

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