Privacy, Free Speech, and the Media
PPCU Summer School 2020, Budapest
The 20th century has witnessed a revolution in information technology, challenging the traditional concepts and regulatory solutions of media law. New devices allow for the spreading of content in unprecedented scale and speed, making it possible for information to reach millions around the globe. Not only do these solutions create new channels of democratic participation, obliterate the conventional news cycle and putting governments under new sources of pressure, they are bursting the confines of the traditional legal framework regulating the media. The internet and in particular, the borderless nature of cyberspace are posing difficult questions of jurisdiction in both regulating online behaviour and prosecuting possible offences. The problem of extraterritoriality in prosecuting hate crimes committed online shows a clear need for establishing cross-border cooperation between the server states and states where the audience of the inciting material is located. Differences in privacy laws and personality rights and net neutrality across the globe lead to differences in the consideration of similar cases involving revenge porn, photos of shot of police, or the download speed of certain sites. Meanwhile, private search engine and social media giants such as Google and Facebook are becoming central channels of the democratic debate, determining the information we access and share based on their own economic and political priorities. Attempts to regulate these companies have resulted e.g. in the notorious right to be forgotten, but the jury is out on how best to curb possible fundamental rights violations across multiple jurisdictions.
These are just some of the issues to be tackled by the media law of the 21st century. The Summer School on Privacy, Free Speech, and the Media focuses on introducing the different areas of law and the rights and freedoms affected by the shifting media landscape. Taking examples from prominent media scandals of the past decade, courses will discuss the most pressing issues of media regulation, along with solutions and case-law from Europe and the United States.
Platforms are becoming increasingly important part of our economy and everyday life. We order taxi and book accommodation, watch and share videos and photos, and socialize on platforms. Though platforms started to dominate certain sectors of economy and our activities at the beginning of the last decade, therefore they are relatively new phenomena, governments endeavored to regulate them from the beginning.
First, as an early attempt they were categorized as intermediaries, a concept that was born right before the platforms, mainly describing internets service or hosting providers, and the like According to this approach, platforms do not have a responsibility over the content uploaded, and transactions performed on them. This approach still serves as a basis for the regulation in most of the countries. But from the beginning of the last decade the intermediary approach proved to be more and more insufficient, and the legal discourse started to shift to constitutional law (basic rights), and media law direction.
Our course gives an introduction to the platform ecosystem, and to the recent regulatory landscape of the EU and the US, with a special emphasis on media regulation. It also gives a short introduction to other legal aspects, like data and consumer protection and competition law, and an outlook to the plans and drafts that can affect the future legislation.
Day 1: Introduction to the world of platforms & basics of media law
Day 2: The (state, co- and private) regulation of platforms in the EU
Day 3: The (state, co- and private) regulation of platforms in the US
Day 4: Data protection, competition law, antitrust and consumer protection issues concerning platforms. New regulatory efforts in the pipeline, debates about the future regulation
Day 5: test
In 2011 1.2 billion users accessed a social media site, a 6% increase from 2007. Four years later, in 2015, over 2 billion people used social media globally. By 2019, this figure is projected to grow to 2.72 billion users, or 39% of the world’s population. These figures illustrate the exponential growth of social media. In a little over a decade, it has developed from crude and relatively small and exclusive online communities to the platforms that we associate with it today. As a result, the likes of Facebook, Twitter and Instagram, among many others, have become intertwined within our cultural and social fabric, to the extent that these platforms, permeate every aspect of our lives: in the words of Marshall McLuhan, they have become an ‘extension of man.’
The growth of social media, and the way in which it has emerged as a new infrastructure for speech, has stimulated two phenomena that are the focus of this course. Firstly, by facilitating the convergence of audience and producer, it has encouraged the growth of citizen journalism, and other online news communities. Secondly, a symbiosis with the traditional media (which, for the purpose of this course, is defined as the printed press and broadcast media), in which citizen journalists, often operating online, increasingly act as a ‘source’ of news. A ‘side-effect’ of this symbiotic relationship is that false information by citizen journalists can have an even greater impact, as it is often ‘recycled’ by the traditional media. In turn, the fact that the traditional media has published it serves to justify and support the false information. Ultimately, the cycle becomes self-fulfilling. Thus, arguably, citizen journalism, and its symbiotic relationship with the traditional media, has not only permanently altered the media ecology, but has shifted the media paradigm.
Thus, during the course students will deal with the following topics: (i) The development of social media and how it has evolved into one of the main mechanisms through which digital speech occurs and, therefore, how it facilitates citizen journalism. We will consider the extent to which social media, and the Internet more broadly, has enabled access to the public sphere; (ii) The development of citizen journalism, the impact it has had on the traditional media and the extent to which it currently contributes, or could contribute, to democratic governance. In relation to the traditional media we will consider the notion of the ‘free press’, the extent to which the concept is, or is not, an ‘illusion’ and, if it is, whether citizen journalism is able to remedy this; (iii) The difference between individual freedom of expression and media freedom and what this means in practice; (iv) The interpretation and application of the philosophical foundations of free speech and communication theories, in the context of the modern media and citizen journalism and how these apply to the notion of responsible journalism. Students will also consider the impact that the emergence of citizen journalism has had on defamation, privacy and media regulation.
Day 1: The development of social media and the development of citizen journalism
Day 2: Unpacking free speech and media freedom
Day 3: The interpretation and application of the philosophical foundations of free speech and communication theories in the context of the modern media and how these apply to the notion of responsible journalism
Consultation (student debate): Is the concept of the ‘free press’ an illusion?
Day 4: The impact that the emergence of citizen journalism has had on defamation, privacy and media regulation
Day 5: Examination
Lecturer 3: Robert Kahn (Professor, University of St. Thomas School of Law): Hate speech and blasphemy in the online sphere
Day 6: … 9-11:00
Day 7: … 9-11:00 15-16:30 consultation
Day 8: … 9-11:00
Day 9: … 9-11:00
Day 10: test
Lecturer: János Tamás Papp (Researcher of the National Media and Infocommunications Authority, Lecturer of Pázmány Péter Catholic University, Faculty of Law and Political Sciences): Legal challenges in social media
It is undisputed that the Internet has become the newest forum for the public. We get and consume information differently, our news and content consumption habits have changed, and the content we want to watch has changed significantly as well. The influence of Google, Facebook, Twitter or Amazon now rivals that of the largest media companies: they generate the vast majority of online content consumption, they are the ones who determine what and how the average Internet user sees and can reach. In other words, these are the companies through which we access the Internet and the information that reaches us, they are the intermediaries between the user and the content creator, and they are the gatekeepers who are almost exclusive depositors of content access for the average user.
The operator of a social networking site can determine the rules by which it operates its own interface, registrants have two options, either accepting these rules or not registering on the site at all. Today, however, Facebook for example has such a large user base that it has become an almost indispensable community space, and thus has a huge impact on the community with its privacy policies, rules, and practices. However, since their decisions regarding unlawful contents are not public, it is still very difficult to see on what grounds these sites finds certain content to be in violation of or compliant with their terms of service. This creates serious uncertainty, can lead to ad-hoc decisions, can manipulate public debate and can have a very serious impact on the democratic public discourse.
The relationship between users and platforms is governed by a contract that everyone signs when they register (or even use) such a site. All their rights, all their responsibilities, and all the disputes between them and the platforms are sorted out there. Everything a user can or cannot do on the platform is what a given platform allows them to do. The relationship is not even properly contractual, as the contract, in the form of Terms of Service, can basically be changed one-sidedly by the platform at any time. It is no longer a privilege for the states to set the boundaries of freedom of expression and to oversee it, as it has already been done by global players who extend their own code of free speech to all parts of the world.
Day 6: Social media and the public discourse 11-13:00
Day 7: Contractual freedom of speech 11-13:00 – 15-16:30 consultation
Day 8: Fake news, disinformation 11-13:00
Day 9: Regulatory models of social media platforms 11-13:00 – 15-16:30 consultation
Day 10: Written test
Day 11: … 9-11:00 – 15-16:30
Day 12: … 9-11:00
Day 13: … 9-11:00 – 15-16:30 consultation
Day 14: test
The internet has radically changed memory – and with it, the public perception of individuals. While the human brain recalls images, sounds etc. in an arbitrary and incomplete way, servers around the world store uploaded data accurately and comprehensively. Yet while the identity of an individual may be reconstructed with the use of data available online, these are all but a snapshot of the otherwise diverse life of the person concerned, willing to change and denounce earlier habits or beliefs. This hope for personal change and redemption underlies the idea of protecting the individual from becoming equated with evidence of past regressions. Besides relying on the normal workings of human memory, the law has long employed gag orders, anonymity rules, restrictions on access to archives, etc. to promote criminal rehabilitation or to protect privacy. These instruments are rendered more or less ineffective, however, in our increasingly digital world.
In its decision in C-131/12 Google v AEPD and González the Court of Justice of the European Union established the right to be forgotten (Rtbf) in European Union law, a concept also enshrined in the new General Data Protection Regulation (GDPR). Rtbf seems to be an important legal tool complementing more traditional instruments ensuring accuracy, up-to-dateness, lawfulness and the protection of data. While the Rtbf fits seamlessly with European privacy standards, service providers outside the EU are reluctant to adhere to it. Criticisms include claims that Rtbf restricts freedom of expression, rights of access to information, academic freedom and amounts an effort at extraterritorial application of EU law.
The course shall concentrate on the online context of privacy and personality rights. Following an introduction to the RtbF in the jurisprudence of the Court of Justice of the European Union, issues of extraterritoriality and technical, administrative solutions to enforcing this right by search engine operators shall be discussed.
The Internet, since its creation, it has been governed by the principle of neutrality which was defined by Tim Wu as an end aiming to maintain a system of belief about innovation, one that has gained significant popularity over last two decades. In other words, all communication transmitted through the network of Internet access service providers (ISPs) must be treated independently of (i) content, (ii) application, (iii) service, (iv) device, (v) sender address, and (vi) receiver address. Sender and receiver address implies that the treatment is independent of the end user and content and application provider (hereinafter: CAP).
As such, the principle of net neutrality ensures the operation of the Internet as an open platform, which is fundamental from the aspect of the freedom of expression, too. While previously only the state presented a threat to the freedom of expression by its ability to censor opinions that were not favoured by the powers that be, on the Internet several private market actors have emerged that can, and often do, influence what content and, therein, which opinions reach its users. Nevertheless, it is important to note a fundamental difference at this point. While state authorities usually restricted opinions directly incompatible with the given system, with a few exceptions the motivation of CAPs is usually of a different, commercial nature. The motivation is basically different, but indirectly the result may nevertheless have an effect on the freedom of expression.
During the course we will deal with the economic background of the net neutrality and with the relevant EU and US regulations and case law. In the United States, the FCC ruled from 2002 on a legal trap set up by itself, from which, after several attempts, could only break out in 2015 and introduce a coherent and rigorous regulation. However, this proved to be very short-lived since the republican administration abolished the Open Internet Order in December 2017, providing the Internet access providers with the opportunity to discriminate between the contents transmitted over their network. In the European Union, as a result of a compromise reached in 2009, no ex ante regulation has been introduced on this matter as the legislator entrusted, just like the FCC does, that abuses could be avoided by indirect means such as boosting competition, increasing transparency and facilitating the change of operator. However, the EU legislator’s approach has been disproved by empirical data. As a direct consequence of this, the EU has adopted the TSM Regulation, which in many respects resembles the US Open Internet Order, which was adopted almost simultaneously but has since been withdrawn.
Day 11: 11-13:00 Introduction (The idea of net neutrality – fundaments of the Internets’ functioning; Forms of discrimination: blocking, throttling, priorization, zero rating; Discrimination in the peering and transit upstream markets. The US approach.)
Day 12: 11-13:00 – The European regulation, case law and ongoing review.
15-16:30 - Introduction II. (The online context of privacy and personality rights; Classic instruments for protecting privacy outside the online context; Judgment C-131/12 Google v AEPD and the new obligations of search engine operators)
Day 13: 11-13:00 . Criticisms of the right to be forgotten; Administrative and technical issues of implementing the right to be forgotten; The right to be forgotten as a model?
Day 14: Examination
Day 15: Closing ceremony, awards