Download This PaperOnline Rulers as Hybrid Bodies: The Case of Infringing Content Monitoring
58 Pages Posted: 12 May 2020 Last revised: 17 Apr 2021
Date Written: April 15, 2020
Abstract
The digital information environment functions today as the backbone of democracies. This environment is operated by online intermediaries that control the flow of information and monitor content running through their “pipelines.” Thus far, content monitoring has been conducted with almost no regulation and according to the intermediaries’ own (commercial) policies. In that respect, online intermediaries have become, in fact, the online rulers. Therefore, the issue of online content monitoring stands at the heart of contemporary social and legal discourse, since it challenges other public, individual, or commercial entities’ constitutional rights and freedoms, such as freedom of speech, or more broadly, other “digital human rights.”
Online rulers are facing a new legal and social challenge, since they are the ones expected to strike the appropriate constitutional balance, although they are private-commercial entities. This reality could be demonstrated through different practices concerning content monitoring in cases of allegedly copyright infringement, such as the legal schemes of “notice and takedown” or “blocking orders.” Online rulers are expected to act as gatekeepers for the sake of public interest — but without any legal infrastructure.
Against this backdrop, the article aims to explore whether and how some of the basic public law standards, such as accountability, transparency, equality, and reasoning, could be imposed on relevant online rulers. European countries, in contrast to the U.S., are more willing to accept the introduction of public law standards into the private law sphere. According to an accepted doctrine, in some cases private entities may be perceived as a hybrid private/public body, and as a result the door opens for the direct imposition of some public law standards on such private entities. This article proposes that in relevant cases major online rulers should be acknowledged as hybrid bodies, in order to promote a balanced and fair digital information environment. There are many advantages in using this doctrine, which allows a gradual and dynamic application of public law principles, and on a global scale. The challenge for such potential legal move in the U.S. is greater, considering the current interpretation of the “state action doctrine,” which hinders the application of constitutional rights in the private sphere. Nevertheless, this current judicial restrictive approach could be relaxed by further future judicial elaborations. The significance of this article, therefore, lies in its potential to assist in shaping better policies and practices in the future that can and should be initiated by the U.S. judiciary.
Keywords: online platforms, content monitoring, free speech, copyright infringement, internet governance, internet intermediaries
JEL Classification: K1, K10, K11, K2, K20, K21, k39
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