Sanctions on platforms beyond the public/private divide
(2019) 8th Annual Cambridge International Law Conference: ’New Technologies: New Challenges for Democracy and International Law — Location: Cambridge, UK (20.March.2019)
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- This contribution examines the notion of “platforms as quasi-states”: platforms have a legislative, a judiciary and an executive power. They impose their contractual conditions to the relationships between their users; they offer dispute resolution mechanisms and they implement, monitor and enforce the contractual relationships within their scope of action. This merging of functions in the hands of one single entity means the failure of the liberal attempt of differentiating functions in order to preserve individual freedom free from pressure. In the cyberspace, platforms are the new democratically-deficient sovereign. This begs a crucial question, namely that of the respective role of public authorities and private markets in shaping the space for individual freedom to flourish. In this regard, this contribution examines the alleged monopoly for states to sanction actors by online and offline means. Going beyond the traditional public/private divide, this paper conceptualizes the digital economy as a specific mode of governance, where new “checks and balances” on the powers exercised by states, market actors and civil society have to be developed. On the one hand, states seem to strike back in the digital world: they enact policies targeting directly the platform economy, despite a lack of material apprehension of the phenomenon. On the other hand, platforms (i.e. private actors) rely on states to police individual’s behavior and ideas expressed through the platforms. This paper analyses this double trend in mapping how economic and/or administrative sanctions are taken and implemented in the context of the digital economy, especially with regards to freedom of speech/expression policies in four states (the United States, France, Germany and Belgium, i.e. systems traditionally known for articulating differently the interactions between state and market). For instance, regulation and implementation of defamation policies (e.g. criticism in feedback mechanisms and censorship) within the digital economy require to balance human rights to privacy and freedom of expression, which are theoretically states’ prerogatives to protect. Platforms can sanction deviant/illegal behaviors, but territorial and temporal limits to their practices may require state intervention to follow up on these sanctions in the offline world. Hence, the need for the international community to take up the challenge of answering the Paris Call for Trust and Security in the Cyberspace to ensure that the online behavior is policed effectively by adequate cooperation between states, public enforcement agencies, platforms and users.
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Marique, E., & Marique, Y. (2019). Sanctions on platforms beyond the public/private divide. 8th Annual Cambridge International Law Conference: ’New Technologies: New Challenges for Democracy and International Law, Cambridge, UK. https://hdl.handle.net/2078.5/120437