Cut Out By The Middle Man: The Free Speech Implications Of Social Network Blocking and Banning In The EU

Journal of Intellectual Property, Information Technology and Electronic Commerce Law (JIPITEC) 6(2), 2015

21 Pages Posted: 14 Dec 2019

See all articles by Paddy Leerssen

Paddy Leerssen

University of Amsterdam, Institute for Information Law (IViR)

Date Written: June 27, 2015

Abstract

This article examines social network users’ legal defenses against content removal under the EU and ECHR frameworks, and their implications for the effective exercise of free speech online. A review of the Terms of Use and content moderation policies of two major social network services, Facebook and Twitter, shows that end users are unlikely to have a contractual defense against content removal. Under the EU and ECHR frameworks, they may demand the observance of free speech principles in state-issued blocking orders and their implementation by intermediaries, but cannot invoke this ‘fair balance’ test against the voluntary removal decisions by the social network service. Drawing on practical examples, this article explores the threat to free speech created by this lack of accountability: Firstly, a shift from legislative regulation and formal injunctions to public-private collaborations allows state authorities to influence these ostensibly voluntary policies, thereby circumventing constitutional safeguards. Secondly, even absent state interference, the commercial incentives of social media cannot be guaranteed to coincide with democratic ideals. In light of the blurring of public and private functions in the regulation of social media expression, this article calls for the increased accountability of the social media services towards end users regarding the observance of free speech principles

Keywords: platforms, social media, free speech, freedom of expression, human rights, legal realism

Suggested Citation

Leerssen, Paddy, Cut Out By The Middle Man: The Free Speech Implications Of Social Network Blocking and Banning In The EU (June 27, 2015). Journal of Intellectual Property, Information Technology and Electronic Commerce Law (JIPITEC) 6(2), 2015, Available at SSRN: https://ssrn.com/abstract=3494317

Paddy Leerssen (Contact Author)

University of Amsterdam, Institute for Information Law (IViR) ( email )

Amsterdam
Netherlands

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