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This paper asks which legal tools digital operators could use to manage colliding rights on their platforms in a digitalised and transnational space such as the Internet. This space can be understood as a “modern public square”, bringing together actions in the digitalised world and their interactions with actual events in the physical world. It is then useful to provide this space with a discursive framework allowing for discussing and contesting actions happening on it. In particular, this paper suggests that two well-known legal concepts, proportionality and sanctions, can be helpfully articulated within that discursive framework. In a first step, proportionality, a justificatory tool, is often used to suggest a way for managing colliding rights. This paper argues that for proportionality to be useful in managing colliding rights on digital platforms, its role, scope and limits need to be better framed and supplemented by an overall digital environment which can feed into the proportionality test in an appropriate way. This can be provided, thanks to a second step, namely labelling in law the actions digital operators take as sanctions. Sanctions are the reactions organised by digital operators to bring back social order on the platforms. The labelling of these reactions under the legal category of “sanctions” offers a meaningful tool for thinking about what digital operators do when they manage colliding rights by blocking or withdrawing contents and/or accounts. As different types of sanctions can be distinguished, differentiated legal consequences, especially in relation to managing colliding rights, can be identified. Here the role played by the proportionality test can be distinguished depending on the type of sanctions.
In any case, for sanctions and proportionality to help address colliding rights on the modern public square, a discursive framework needs to be developed, which depends on the existence of relevant meaningful communities engaging in reflecting on the use of sanctions and proportionality.
This contribution examines how checks and balances can be organised so that individual freedoms of users in the digital space are protected from encroachment by platforms. Indeed, platforms are quasi-states which enjoy legislative, judiciary and executive powers. This merging of functions in the hands of one single entity illustrates the failure of the liberal attempt at setting up a cyberspace free of sovereign power: platforms are the new sovereign. Modern thinkers like Foucault and Habermas have examined how sovereigns in the past have seen their powers curtailed and the role that the birth of two distinct spheres, one public and one private, has played in this process. Traditional public economic law builds on this public-private dichotomy, leaving little room to conceptualize hybrids. Yet this paper shows that platforms are such hybrids. Building on an analysis of the activities taking places on platforms, as well as the rights at stake in platform governance, it finds that platforms’ immaterial locus is both political and economic, bundling public and private powers. Hence, this paper puts forward the idea that public economic law should seek to develop mirroring hybrid counter-powers: civil society especially should be conceptualized in the digital space, with its rights, duties and responsibilities, to foster balanced relationships between the various actors on platforms.
Against a background of extensive literature examining how digital platforms are regulated through ‘soft’ mechanisms, this paper analyses the ‘hard law’ techniques, such as sanctions, which are also very much used on digital platforms to police undesirable behaviours.
It illustrates the use of these sanctions, suggesting that it is possible to find three different categories of sanctions: sanctions that find their source in hard (international and domestic) law, sanctions that find their source in digital platforms’ own normative production, and sanctions used in the course of disputes. Platform operators can have an intense power of norm-setting and sanctions, with a tendency to concentrate power within themselves or with unclear arrangements for dividing it across different entities. This can deeply affect individual freedoms. This paper suggests that the ways in which the power to set, decide and enforce sanctions is exercised in the digital space transform the public–private divide: the allocation of roles between sovereign public bodies and free private actors is reshaped to become ‘hybrid’ when it comes to enforcing rules and monitoring compliance through a wide range of sanctions on digital platforms. This paper frames the legitimacy questions arising from sanctions and suggests that the public–private divide may have to be bridged in order to locate a possible source of legitimacy. A future framework for assessing how platform operators set norms and ensure compliance through sanctions needs to start from individual users to see how best to protect their freedom when checks and balances around platforms’ powers and sanctions are developed. These individual users are the ones who suffer from the economic, social and reputational consequences of sanctions in both the digital world and the physical world.
Workshop organised in Rome by Professor G. della Cananea (Common core principles of administrative law, 1st December). Summary available here: https://europeancommonwealth.org/2018/01/08/account-workshop-fin-de-siecle-administrative-law-judicial-standards-for-public-authorities-1890-1910/. Paper will be submitted later in 2018 for publication in an edited volume.
Conférence organised by the Centre of Public Law, ULB, Brussels, 29th November (summary here: https://blogdroiteuropeen.com/tag/dumping-social/). Paper from this presentation to be published with K Wauters, ‘Sous-traitance et dumping social dans les marchés publics belges – De la substitution régulatoire à la juxtaposition des paradigmes?’, Marchés et contrats publics (special number on social dumping).
Transparency in France
(2017)
European Conference Public Administration (EGPA), Milan, 30th August-1st September, panel on Law and Administration (organised by D Drago, B Marseille and P Kovac). Paper from this presentation to be published with E Slautsky, ‘Freedom of Information in France’, in D Drago, B Marseille and P Kovac (eds), The Laws of Transparency in Action: A European Perspective (Palgrave) (ca. 17,000 words, submitted), a significantly longer version of this paper is available on ResearchGate and SSRN (ca. 22,000 words). The SSRN paper was included in the Top Ten List for “PSN: Public Administration (Institutions)” on 04.10.2017 and in the Top Ten List for “International Administrative Law eJournal” on 19.10.2017.
I-CONN Conference, 5th July, Copenhagen, Panel coordinated by C. Colombo and M. Eliantonio (“The Changing nature of the public administration; what role of judicial review?”). Paper from this presentation to be published with S Van Garsse under the title ‘Revisiting judicial review in the face of the changing nature of public administration – A case study drawn from European infrastructure projects’, submitted to European Public Law (special issue) (guest editors: Dr C Colombo and Dr M Eliantonio) (second stage of proof-reading).