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Book review: Fundamental Rights Protection Online: The Future Regulation of Intermediaries (Cheltenham UK, Northampton MA USA: Edward Elgar Publishing, 2020)

January 25, 2021

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By Juncal Montero Regules

Fundamental Rights Protection Online: The Future Regulation of Intermediaries; edited by Bilyana Petkova and Tuomas Ojanen

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 Jacket

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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Why Economics Should be More Like the Economy

July 27, 2018

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G.M. Peter Swann, Emeritus Professor of Industrial Economics Nottingham University Business School

Stock Quotes

Stock Quotes, Real time quotes at the stock exchange

I believe that the operation of an economy is a good model for the operation of an academic discipline like economics. A well-functioning economy is one where there is healthy competition, we trade with other economies, and pursue innovations that improve the performance of the economy and create wealth. In the same way, a well-functioning discipline should also have healthy competition, trade with other disciplines and pursue innovations that improve the performance of the discipline and create knowledge.

Is this what we find in the economics discipline? Up to a point, yes. There is some competition, trade and innovation in the discipline, but I would say that it is much more limited than what we would find in a healthy economy.

This short piece focuses on innovation. The first important lesson we learn from studying innovation in the economy is that there is an essential distinction between incremental innovation and radical innovation. The use of the adjective incremental need not mean that the innovations are small. It means that they involve successive improvements in achieving a specific objective, where each innovation builds on all that has gone before. And the use of the adjective radical need not mean that the innovations involve ‘rocket science’, nor that they are controversial, but it does mean that they involve going back to the ‘roots’, and doing some things in a different way. If the process of innovation is to fulfil its full economic potential we need both types of innovation. Neither is sufficient without the other.

The second important lesson is that incremental and radical innovations tend to emerge from rather different environments. The best environment for incremental innovation is one in which there is an enduring division of labour. This is often an organisation with a reasonably stable organisational structure, where job descriptions and work routines are narrowly defined and stable over time. Staff build up a detailed knowledge of their part of the production process over a long period, and so they are exceptionally well qualified to point out ways in which it could be improved. Moreover, in such an organisation, staff in one specialised division often have little or no horizontal communication with other divisions, for the simple reason that it would serve no purpose. In such an environment, staff are encouraged to think inside the box.

In contrast, the best environment for radical innovation is one where staff are encouraged to bring together disparate and dissimilar knowledge. This is an organisation that wants some employees, at least, to think ‘outside the box’, because thinking outside the box is the best route to radical innovation. One type that is often discussed in this context, is the relatively young company, that has not yet developed a rigid organisational structure, where job descriptions are not ‘set in stone’, and where work routines are not stable over time. In such a ‘melting pot’, variability in working patterns means that workers are constantly being assigned to different groups, where they interact with people of different experience. In such an environment, staff are encouraged to think outside the box, and they are empowered to do so because they have accumulated considerable experience of problem-solving in teams with people of different experience and with diverse knowledge bases.

Mainstream economics is good at incremental innovation because it resembles the first type of organisation described above. But it is bad at radical innovation because it does not remotely resemble the second type of organisation described above. Indeed, mainstream economics clearly feels uncomfortable with most radical innovation.

In an innovative sector of the economy, it is commonplace to find an industrial structure that includes both types of organisations. There are the well-established and large incumbent firms who offer mainstream products and services, and incremental innovations. There is also a fringe of newer and innovative firms who aim to improve on some of the offerings from the mainstream, and offer something radically different. This is entirely healthy. In the same way, I think it is entirely healthy to create a similar ‘industrial structure’ in the economics discipline, and a similar fringe where radical innovations can flourish. That is radical, in the sense that it means going back to the roots and doing some things in a different way, but I don’t think it is controversial.

How do we create such an industrial structure? We should follow the example of many other disciplines, and change the constitution of the economics discipline from the conservative unitary state that it is at present, into a federation of semi-autonomous sub-disciplines. The following disciplines have all gone down that route: medicine, physics, chemistry, neuroscience, materials science, cognitive science, computing, geography, history, and business studies. Economics has sub-disciplines, certainly, but they enjoy little or no autonomy. Semi-autonomy is essential because radical innovation entails doing things that the mainstream may not approve of, but which are essential to solve the problems facing the discipline as a whole. These necessary innovations will only flourish in a federation where each sub-discipline has sufficient autonomy.

What new things will we find in the federation? If we are to give economics a proper empirical foundation, rather than rely on the black-box foundations built by econometrics, then we need to emulate the three essential empirical foundations of medical science: anatomy, physiology and pathology. Economic anatomy and economic pathology are still hopelessly under-developed. Economic physiology is quite well developed, but it is a black-box science, and does not draw on a deep understanding of economic anatomy.

There will also be a variety of hybrid disciplines in this economic federation – just as there are in medicine. These will include hybrid disciplines formed from several academic discipline – for example, in my own field of innovation. There will also be hybrid disciplines formed by academic economists working together with a wide variety of practitioners. These hybrid disciplines can play an essential part in addressing many sources of discontent amongst those outside the economics discipline.

This is how the economy creates the necessary mix of incremental and radical innovations.

I believe that it would be a very good idea if the economics discipline were to become more like the economy.

G.M.P Swann, Economics as Anatomy: Radical Innovation in Empirical Economics, Cheltenham: Edward Elgar Publishing (2019)

 

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