Abstract
Transnational digital platforms have contributed greatly to freedom of expression, not least including easy access to information. However, they have also enhanced private life infringements such as the unconsented distribution of nudity, sexual activities and fake porn.
We may look to the European Court of Human Rights (ECtHR) which has dealt extensively with the balancing of freedom of expression and the protection of private life. The Court has developed a set of criteria to balance the rights; The criteria are not perfect, but they are workable, and they include criteria such as ‘contribution to a debate of general interest’ and ‘the methods involved’ when collecting and distributing information, including pictures.
However, companies including transnational digital platforms, are not legally bound by international human rights law, only states are. To address this, the UN has developed United Nations Guiding Principles to Business and Human Rights. These Principles do not create legal obligations, but duties including the duty to address human rights adverse effects of their activities. So far, the transnational digital platforms have done little, if anything at all, to address private life infringements. As of late, Facebook has indeed established an Oversight Board and declared its commitments to the UN Guiding Principles. This is a step in the right direction but overtly insufficient, as it solely addresses infringements of freedom of expression, but not any other human rights infringement such as violation of private life.
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Notes
- 1.
I use the term ‘freedom of expression’, indirectly referring to the Covenant on Civil and Political Rights (CCPR), Article 19, and the European Convention on Human Rights (ECHR), Article 10: It covers the right to express opinions and the right to seek, receive and pass on information.
- 2.
The leading case: UfR [the weekly law journal] 2019, p. 132H: The Supreme Court decided for 40 days of suspended imprisonment and DKK 10,000 and 2,000 (apprx. € 1,350 and 270) in tort to the two depicted youngsters.
- 3.
Universal Declaration of Human Rights Article 12, CCPR Article 17; American Convention on Human Rights Article 11, Arab Charter Article 17(8).
- 4.
See, e.g. Amnesty International (2020).
- 5.
In the African Charter of Human and Peoples’ Rights there is no protection of private life, in contradistinction to the ICCP and the ECHR.
- 6.
López Ribaldo and Others v. Spain, nos. 1874/13 and 8567/13, § 87, 17 October 2019. References to case law excluded in the quote.
- 7.
Ibid., § 88.
- 8.
See an early indication by the former Commission in X. v. Iceland, no. 6825/74 (no §), 18 May 1976: ‘For numerous Anglo-Saxon and French authors the right to respect for “private life” is the right to privacy, the right to live, as far as one wishes, protected from publicity (…) In the opinion of the Commission, however, the right to respect for private life does not end there. It comprises also, to a certain degree, the right to establish and to develop relationships with other human beings, especially in the emotional field for the development and fulfilment of one’s own personality’.
- 9.
E.g. the Grand Chamber judgments Morice v. France, no. 29369/10, 23 April 2014, and Medžlis Islamske Zajednice Brčko and Others v. Bosnia-Herzegovina, no. 17224/11, 27 June 2017.
- 10.
As indicated in the Grand Chamber judgment Aksu v. Turkey, no. 4149/0441029/04, § 58, 15 March 2012 [GC].
- 11.
CCPR Article 17; ACHR Article 11, where in fact ‘honor and reputation’ is mentioned in § 1, prior to private life in § 2.
- 12.
I prefer to avoid the term ‘hate speech’, which is too imprecise and ambiguous. Besides, it indicates that hate is a relevant factor, which is not always the case. E.g. according to CERD, Article 4(a) ‘racist hatred’ is only one element in addition to ‘racial superiority’, ‘incitement to racial discrimination’, ‘financing of racist activities’, etc.
- 13.
Von Hannover v. Germany no. 2, nos. 40660/08 and 60641/08, § 96, 7 February 2012.
- 14.
Eerikäinen v. Finland, no. 3514/02, § 70, 10 February 2009.
- 15.
K.U. v. Finland, no. 2872/02, § 41, 2 December 2008.
- 16.
Söderman v. Sweden, no. 5786/08, § 78, 12 November 2013.
- 17.
Söderman, §§ 79–85.
- 18.
The balancing exercise is dealt with below, Sect. 2.3.
- 19.
Müller and Others v. Switzerland, no. 10737/84, 24 May 1988.
- 20.
Hashman and Harrup v. The United Kingdom, no 25594/94, 25 November 1999.
- 21.
Mikkelsen and Christensen v. Denmark, no. 22918/08, 24 May 2011 (admissibility decision).
- 22.
Gough v. the United Kingdom, no. 49327/11, 28 October 2014.
- 23.
Couderc and Hachette Filipacchi Associés v. France, no. 40454/07, § 88, 10 November 2010 [GC].
- 24.
Alpha Doryforiki Tileorasi Anonymi Etairia v. Greece, § 38, no. 72562/10, § 38, 22 February 2018.
- 25.
See below for case law.
- 26.
Remuszko v. Poland, no. 1562/10, § 79, 16 July 2013.
- 27.
The Danish Press Council regularly receives complaint from people whose letter to the editor has not been published and whose interview has not been broadcast etc., and the Press Council regularly dismisses this kind of complaints. Freedom of expression is also freedom of the press, and as a point of departure no one can require specific information to be published.
- 28.
Kaperzynski v. Poland, no. 43206/07, § 66, 3 April 2012.
- 29.
Özgür Gündem v. Turkey, no. 23144/93, 16 March 2000.
- 30.
Dink v. Turkey, nos. 2668/07, 6102/08, 30079/08, 7072/09, 7124/09, § 138, 14 September 2010. The Court also found a violation of Article 2. In the present context, the state’s violation of its positive obligations under Article 10 is in focus.
- 31.
Fuentes Bobo v. Spain, no. 39293/98, 29 February 2000.
- 32.
Khurshid Mustafa and Others v. Sweden, 23883/06, 16 December 2008.
- 33.
Appleby and Others v. the United Kingdom, no. 44306/98, § 47, 6 May 2003.
- 34.
Appleby and Others, § 48.
- 35.
Remuszko v. Poland, no. 1562/10, § 65, 16 July 2013.
- 36.
As stated in Couderc and Hachette Filipacchi Associés v. France, no. 40454/07, § 89, 10 November 2015 GC.
- 37.
Independent Newspapers Limited v. Ireland, no. 28199/15, 15 June 2017.
- 38.
Couderc, ibid.
- 39.
‘(E)ine “absolute” Person der Zeitgeschichte’, von Hannover, § 19.
- 40.
Von Hannover, § 60.
- 41.
§ 65.
- 42.
§§ 59 and 68.
- 43.
Couderc, § 91.
- 44.
Smet (2010), pp. 185, 197 and 235 with further references.
- 45.
Schaumburg-Müller (2013).
- 46.
They may work less well in cases of clashes between private life protection against insults and freedom of speech, see Morice v. France, no. 29369/10, 23 April 2014 [GC] and Medžlis Islamske Zajednice Brčko and Others v. Bosnia-Herzegovina, § 88, no. 17224/11, 27 June 2017 [GC].
- 47.
See, e.g. Couderc, §§ 96–116.
- 48.
Couderc, §§ 117–129.
- 49.
Ojala & Etukeno Oy v. Finland, no. 69939/10, 14 January 2014.
- 50.
Couderc, § 130.
- 51.
Couderc, §§ 131–136.
- 52.
An example from Danish case law: six-month imprisonment for, among others, photo shopping a portrait of a young girls on to a masturbation site, UfR (Weekly Law Reports] 2015, p. 2561.
- 53.
E.g. Schüssel v. Austria (dec.), no. 42409/98, 21 February 2002.
- 54.
Couderc, §§ 137–150.
- 55.
- 56.
UfR [Weekly Law Review] 2019, p. 1232.
- 57.
United Nations, 2011. https://www.ohchr.org/documents/publications/guidingprinciplesbusinesshr_en.pdf.
- 58.
The UNGP uses the term ‘duty’. A UNGP duty is not a legal obligation under international law, but a duty nevertheless, and many UNGP duties may be more closely regulated in domestic law and eventually turned into legal obligations.
- 59.
UNGP I.A.1.
- 60.
As for copyright infringements, the EU has required Member States to provide liability for ‘online content-sharing service providers’, Directive (EU) 2019/790 of 17 April 2019 on copyright and related rights in the Digital Single Market, Article 17. The EU could direct the Member States to provide liability for online media also for (gross) private life infringements. Here, the EU seems to take a softer approach, cf. the Proposal for a Regulation on a Single Market for Digital Services (Digital Services Act) 15 December 2020.
- 61.
UNGP I.A.2.
- 62.
The commentary to I.A.2 relates to the performance abroad of home business enterprises, but the opposite is also relevant. States want to attract foreign investment, and this should be done in a human rights respecting way.
- 63.
UNGP I.B.3.a.
- 64.
UNGP I.B.3.c.
- 65.
According to Danish penal law, anyone who is inciting, advising or somehow participating in the act may be sentenced. It is clear that digital platforms are involved, i.e. participating in the act by providing a platform and by not taking action against illegal content. So far, no digital platforms have been prosecuted. It does not seem as if this is due to thorough considerations, but rather a result of the police and the prosecutor being slow and somewhat reluctant to prosecute digital crimes. Initially, it appeared that the police and the prosecution brushed aside digital crimes as if they were not real crimes. This has changed, and now the police investigate, and the prosecution prosecutes digital violations of the various private life provisions. Still, there is no prosecution of online media, although the penal provisions are there, and the prosecutor has an obligation to prosecute criminal acts. (There is a certain element of passive complicity, which is relatively complicated, see Holst (2015) and Schaumburg-Müller (2018)).
- 66.
UNGP II.A, § 11.
- 67.
UNGP II.A, Commentary re § 17.
- 68.
UNGP II.A, § 11 (my italics).
- 69.
UNGP II.A, § 13.
- 70.
See Buhmann and Olivera (2020), p. 129.
- 71.
UNGP II.A, § 12 which also mentions ‘the principles concerning fundamental rights set out in the International Labour Organization’s Declaration on Fundamental Principles and Rights at Work’ which for the present purpose is of little relevance. ‘International Bill of Rights’ refer to the 1948 Universal Declaration of Human Rights and the two 1996 covenants, both in force from 1976, the one on civil and political rights, CCPR, and the one on social, economic and cultural rights, CSECR.
- 72.
UNGP, II.A, § 14.
- 73.
UNGP, II.A, § 15(b).
- 74.
UNGP, II.B, § 19(b)(ii) including the Commentary.
- 75.
As recommended in § 18(a).
- 76.
UNGP, II.A, § 15(c).
- 77.
UNGP, III.B, § 29.
- 78.
UNGP, III.B, § 30.
- 79.
UNGP, III.B, § 29, Commentary. From my own experience, working as a legal advisor for YWCA, Lusaka, Zambia 1997–2000, complaints procedures provide valuable information from real life experience.
- 80.
See also Buhmann and Olivera (2020), p. 133: ‘To honour their corporate responsibility to respect human rights, companies in the ICT sector need to much more seriously consider their own human rights impacts and their role in facilitating such impacts’.
- 81.
Ruggie is quoting Upton Sinclair in a post on 15 November 2018, ‘Facebook in the Rest of the World’. https://media.business-humanrights.org/media/documents/files/documents/John_Ruggie_Facebook_15_Nov_2018.pdf.
- 82.
- 83.
A/HRC/8/5, ‘Respect and Remedy: A Framework for Business and Human Rights. Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie’ 7 April 2008.
- 84.
Quote 15 March 2015 from the official Facebook homepage. The quote is no longer accessible.
- 85.
Quote from Ruggie, ‘Facebook in the Rest of the World’, 15 November 2018.
- 86.
Info and quote from https://oversightboard.com/governance/.
- 87.
Oversight Board Charter, Section 2. Basis of Decision Making.
- 88.
Case Report 2020-001-FB-UA 28 January 2021 (hereafter 2020-1 plus date), 2020-02, 2020-03, 2020-05 (all 28 January), 2020-07 12 February 2021-02 13 April, 2021-03 29 April.
- 89.
2020-04 28 January (Nudity and breast cancer), 2020-6 28 January (‘Harmless drug’) and 2021-01 5 May (Trump).
- 90.
To seek is not included in the European version, see, e.g. Magyar Helsinki Bizottság v. Hungary, no. 18030/11, 8 November 2016 [GC] interpretation hardships.
- 91.
CCPR, Article 19(3)(a).
- 92.
2021-1, 2021-3, 2020-6, 2020-5, 2020-4.
- 93.
2021-3 (‘RSS is the new threat’).
- 94.
Obviously, it is not legislation in the strict sense. However, it resembles; Facebook and other digital platforms offer a public space, and therefore their terms of use are not merely contract conditions, but also a relevant regulation of public affairs.
- 95.
This in line with the ECtHR, e.g. in Hashman & Harrup v UK, no. 25594/94, 25 November 1999 [GC].
- 96.
Note that according to the UNGP, II.B, § 24.
- 97.
See Remuszko v Poland, above Sect. 2.2.
- 98.
2020-3. The Board refers to the UN Special Rapporteur on Hate Speech, A/74/486, § 41.
- 99.
Similar to the case law of the ECtHR which has continuously elaborated on the ‘necessary in a democratic society’ test in relation to state sanctions from European countries.
- 100.
As an example, the ECHR was agreed upon in 1950 with a commission to receive complaints, but no court. Now the Court has passed approx. 20,000 judgments, which gives a much more precise picture of state obligations under the Convention.
- 101.
Charter of the Oversight Board, Article 2.
- 102.
Headline, https://oversightboard.com.
- 103.
Quoted from https://oversightboard.com/ accessed 12 May 2021.
- 104.
GC no. 34 of 29 July 2011.
- 105.
Ibid., § 34.
- 106.
Proposal for a Regulation of the European Parliament and of the Council of a Single Market for Digital Services (Digital Services Act) and amending Directive 2000/31/EC, 15 December 2020, COM (2020) 825 final.
- 107.
UNGP, III.§ 29.
- 108.
See also a hesitant backing, Douek (2019), who points out that the Oversight Board may succeed in improving the legislative process and contributing to a public debate on the prevailing rules.
- 109.
In the third quarter of 2020, 12.4 million pictures (allegedly) violating Facebook standards were removed.
- 110.
2020-4 (Breast cancer) and 2021-3 (RSS).
- 111.
Hart (1961), p. 94.
- 112.
There is an abundance of published case law relating to freedom of speech. All courts painstakingly take the relevant ECHR Article 10 criteria into consideration, and Denmark has not lost a freedom of speech case since Jersild, no. 15890/89, 24 Sep 1994, dealing with the media’s right to disseminate publicly relevant information.
- 113.
Which may be a requirement under the E-Commerce Directive, 2000/31/EC, Article 14.
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Schaumburg-Müller, S. (2022). Private Life, Freedom of Expression and the Role of Transnational Digital Platforms: A European Perspective. In: Hindelang, S., Moberg, A. (eds) YSEC Yearbook of Socio-Economic Constitutions 2021. YSEC Yearbook of Socio-Economic Constitutions, vol 2021. Springer, Cham. https://doi.org/10.1007/16495_2022_40
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