Mind the Gaps

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Department of Law Spring Term 2021

Master’s Thesis in Public International Law 30 ECTS

Mind the Gaps

Why de facto protection of human rights on social media is so difficult and what could be done about it

Author: Helena Borgå

Supervisor: Associate Professor Maria Grahn-Farley

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Abstract

This thesis explores if and how states can regain control over large social media platforms like Facebook, and by doing so ensuring that individuals on those platforms can de facto enjoy their human rights, as enshrined in international treaties. Today, the platforms are crucial facilitators of human rights but at the same time facilitators of threats towards the enjoyment of the same rights. Behind this duality hides three gaps, namely between individuals’ de jure enshrined human rights and their de facto possibilities to enjoy them on social media, states extensive de jure obligations to ensure those rights on social media and their limited de facto possibilities to actually do so, and lastly between the platforms limited de jure responsibilities to respect human rights and their extensive de facto influence over human rights. The reason that these gaps have arisen is essentially that public international law – mainly its strict horizontal character and its definition of jurisdiction as something exclusively tied to a delimited physical territory – is inadequate to tackle the virtual, cross-border, and non-state activity that the platforms are pursuing.

To find what could be done to lessen these gaps, this thesis turns to theories in analytical jurisprudence and public international law: the identity of systems, legal pluralism and international legal subjectivity. The first suggests that this issue cannot be solved due to different legal systems having different identities and thus cannot be bridged. The second also suggests that the issue cannot be solved not because of differing identities of systems but because the platforms should be regarded as autonomous legal systems, not subordinate to state law. Finally, the third alternative suggests an actual solution: making the platforms subject directly to international law and universal jurisdiction. Even though this is a legally sound solution it is, however, not as simple a solution as it might appear.

Key words: social media; Facebook; freedom of expression; right to privacy; normative conflict mediation; the identity of legal systems; legal pluralism; international legal subjectivity

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Sammanfattning

Det här examensarbetet utforskar om och hur stater kan återta kontrollen över stora sociala medie-plattformar och på så sätt säkerställa att människor på sociala medier kan de facto åtnjuta de mänskliga rättigheter som de är berättigade genom internationella konventioner. Idag är plattformarna både bärare av rättigheter men samtidigt bärare av hot mot samma rättigheter. Bakom denna dubbelhet döljer sig tre glapp, nämligen mellan människors de jure berättigade mänskliga rättigheter och deras möjligheter att de facto åtnjuta dem på sociala medier, staters de jure omfattande skyldigheter att säkerställa att människor kan åtnjuta sina rättigheter och deras begränsade möjligheter att de facto säkerställa detta, och till sist plattformarnas begränsade de jure skyldigheter att respektera mänskliga rättigheter och deras omfattande de facto inflytande över mänskliga rättigheter.

Varför dessa glapp har uppstått, som också är en av arbetets frågeställningar, beror i korthet på att folkrättens grundläggande utformning – främst dess strikt horisontella verkan och definition av jurisdiktion som något exklusivt knutet till ett avgränsat fysiskt territorium – inte är anpassad till den virtuella, gränsöverskridande och icke-statliga verksamhet som plattformarna bedriver. Svaret hur dessa glapp kan minskas, vilket är arbetets andra frågeställning, söks i olika teorier i allmän rättslära och folkrätt:

systemidentitet, pluralism och rättssubjektivitet. Den första erbjuder ingen lösning eftersom det inte går att överbrygga två rättssystem med olika identitet. Den andra erbjuder inte heller någon lösning, men inte för att den anser att systemen inte kan överbryggas utan för att Facebook i sig självt är ett autonomt rättssystem som inte är underordnat staternas. Den tredje föreslår att man ska göra Facebook till rättssubjekt direkt under folkrätten och därmed föremål för universell jurisdiktion. Detta är en välavvägd lösning, men i praktiken kanske inte så enkel som vid första anblick.

Nyckelord: sociala medier; Facebook; yttrandefrihet; rätten till privatliv; normkonflikter;

systemidentitet; pluralism; rättssubjektivitet

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Abbreviations

CEDAW Convention on the Elimination of All Forms of Discrimination Against Women

CJEU Court of Justice of the European Union CoE Council of Europe

DSA Digital Services Act

ECHR European Convention for the protection of Human Rights and Fundamental Freedoms

ECtHR European Court of Human Rights ESC Economic, social and cultural EU European Union

GDPR General Data Protection Regulation ICC International Criminal Court

ICJ International Court of Justice

ICCPR International Covenant on Civil and Political Rights ICRC International Committee of the Red Cross

IGO Intergovernmental organisation ILO International Labour Organisation NGO Non-governmental organisation

OECD Organisation for Economic Co-operation and Development PCIJ Permanent Court of International Justice

TEU Treaty of the European Union

TFEU Treaty of the Functioning of the European Union UDHR Universal Declaration of Human Rights

UN United Nations

VCLT Vienna Convention on the Law of Treaties WSIS World Summit on the Information Society WTO World Trade Organisation

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Introduction

Defining the problem

Never before has technology had a larger impact on human life and society than today.

The current digitalisation of society is often likened to the industrial revolution of the 19^th and 20^th centuries, implying a rapid, pervasive and permanent structural change in our way to exchange information, communicate and interact.¹ Goods and services are produced and distributed in new ways, and the analysis of large amounts of data affect our knowledge and perception of the world.² If the digitalisation as a whole is cut into smaller pieces three paradigm shifts appear where notions and phenomena that previously were strictly divided are beginning to overlap.³ First, the virtual, abstract (cyber) world and the physical, concrete world are becoming more intertwined and interdependent, since we are more connected to the internet than ever. Second, qualities that previously were exclusively inherent to being human (or at least an animal), such as ‘intelligence’

and ‘autonomy’ are now being transferred to machines, however in a limited and approximate manner, through algorithms and artificial intelligence, AI. Finally, as large amounts of data concerning individuals’ characteristics and behaviours are becoming more available and more valuable, the lines demarcating the individual are beginning to blur.⁴ In the intersection between these three paradigm shifts intelligent entities with an uncertain representation and status in the physical world, albeit with vast possibilities to influence it, can emerge.⁵ Large social media platforms are an example of such an entity.

Social media is today the primary means for many millions of people to participate in political discussions, access news and other information, conduct economic activities and in other ways deal with their personal business.⁶ Today, not having access to the internet and social media often mean social and economic exclusion.⁷ The internet and social media have thus become a crucial infrastructure for people all over the world to be able

1 SOU 2015:28, p 97.

2 Ibid.

3 Ingemarsdotter, J, et al, “Vilse i lasagnen? – En upptäcktsfärd i den svenska digitaliseringens mångbottnade problemstruktur”, FOI-R-4814-SE, Totalförsvarets forskningsinstitut (FOI), 2020, pp 75.

4 Ibid.

5 Ibid.

6 Tully, S, “A Human Right to Access the Internet? Problems and Prospects”, Human Rights Law Review, 2014, p 176.

7 Ibid.

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to enjoy their fundamental and human rights.⁸ Freedom of speech on the internet is considered a catalyst for other civil and political rights, as well as for economic and social rights, and it is often at the centre of the debate about social media.⁹ Furthermore, the internet, often including social media, has become a vital means and platform for public governance.¹⁰

Although the internet and social media have revolutionised our way of living and communicating, it has not come without concerns. Decisions to moderate¹¹, rank¹² and recommend¹³ user-generated content are all made in whole or in part through AI.¹⁴ Social media platforms, with Facebook at the forefront, have over the past few years been subject to substantial criticism for the negative effects of the way they moderate, rank and recommend user-generated content on their platform, being accused of doing too little, too late. Things taking place in the virtual world of Facebook can indeed have a great impact on the physical world, take for instance the genocide of the Rohingya people in Myanmar, where Facebook has been accused by the UN of having had “a significant role”¹⁵ and the Capitol Building siege in January 2021 where protesters where first organised through Facebook.¹⁶ Moreover, the fact that social media platforms through their AI moderation, ranking and recommendation systems shape the world on a more abstract level too by deciding what information each user is exposed to, became evident when it was first discovered that Russian trolls had interfered in the US presidential election in 2016 by spreading disinformation regarding one of the presidential candidates to an extent that it impacted the final result.¹⁷ Lastly, the business model of large social

8 Joyce, D, “Internet Freedom and Human Rights”, European Journal of International Law, number 2 2015, p 493.

9 A/HRC/17/27 “Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression”, para 22-23.

10 Joyce, p 494.

11 I.e. to take down or leave up content that may or may not violate the Community Standards.

12 I.e. to decide in what order to present content to the user.

13 I.e. to randomly present new content to the user based on their previous behaviour on the platform.

14 See e.g. Lewis, P, “Fiction is outperforming reality: how YouTube’s algorithm distorts truth”, The Guardian, 2 February 2018 (last visited 2021-03-26).

15 Resolution A/HCR/39/64 “Report of the independent international fact-finding mission on Myanmar” para 74.

16 Paul, K, Culliford, E, and Menn, J, “Analysis: Facebook and Twitter crackdown around Capitol seige is too little too late”, Reuters, 9 January 2021 (last visited 2021-03-23).

17 E.g. Solon, O, “Facebook’s failure: did fake news and polarized politics get Trump elected?”, The Guardian, 10 November 2016 (last visited 2021-01-22); Abrams, A, “Here’s What We Know So Far About Russia’s 2016 Meddling”, Time Magazine, 18 April 2019 (last visited 2021-01-22).

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media platforms like Facebook depends entirely on collecting and selling the users personal data. Thus is the platform users’ privacy a topical issue, which was accurately highlighted by the Cambridge Analytica-scandal¹⁸ in the wake of the 2016 US election.

In the global information society of today, all governments must deal with issues like disinformation, people’s right to privacy and the limits of the freedom of expression on social media. State parties to international human rights treaties undertake to respect and protect human rights, but when human rights are pursued on social media, many states have seemingly been outmanoeuvred by the social media platforms – creating a gap between individuals’ de jure enshrined human rights and their de facto ability to enjoy them on social media. Just like with other cross-border issues, like climate change and terrorism, finding a solution lies in the common interest of the international community as a whole, which is why this thesis will discuss the issues of human rights and social media in terms of public international law, rather than in terms of domestic law.¹⁹

Purpose and research questions

Against this background, the purpose of this thesis is to explore, through theories in analytical jurisprudence and public international law, the possibilities for individuals to de facto enjoy their entitled human rights on social media. For this purpose, the following questions will be answered: why has this gap between de jure and de facto arisen and what can be done about it?

Delimitations

This thesis will focus on individuals’ enjoyment of freedom of expression and the right to privacy since these are the most frequently de facto infringed by the platforms and the most common in the social media debate. However, other or similar rights might be mentioned. This also means that e.g. procedural matters will be left out. Moreover, due to their unsurpassed scope in regards to both the number of users (and thus the influence over the exercise of those users’ human rights) and revenue, Facebook will be the primary subject of this thesis. The conclusions, however, can be applied to other social media

18 Cadwalladr, C, and Graham-Harrison, E, “Revealed: 50 million Facebook profiles harvested for Cambridge Analytica in major data breach”, The Guardian, 17 Mars 2018 (last visited 2021-01-22).

19 Kettemann, M C., “The common interest in the protection of the internet: an international legal perspective”, in Benedeck, W, et al (eds) in “The Common Interest in International Law”, 1^st edition, Intersentia Ltd, 2014,

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platforms. The rights of Facebook Inc., e.g. the freedom to establish and conduct business; nor their responsibilities to protect human rights outside of their platform, e.g.

as an employer, will be taken into consideration. The terms domestic/municipal/national law, social media platform/internet intermediary and legal system/legal regime will be used interchangeably.

Method and material

Methodological considerations

This thesis analyses the freedom of expression and right to privacy on social media, as enshrined in international human rights treaties, through theories in analytical jurisprudence and international law. The actual effects, de facto, of the law or lack thereof, de jure, and the balancing between the two, are central aspects of this thesis, in that it tries to solve not only a legal problem but a real-life problem with legal means. The analysis is not limited to de lege lata but extends to de lege ferenda aspects of international law.

In sections with an explicit de lege lata approach, essentially the widely accepted perception of what the law is, and only exceptionally dissenting opinions, is accounted for. If there is no widely accepted perception of what a concept means, as is the case with

‘human rights’ for example, the different views are accounted for instead. In sections with a de lege ferenda approach, namely section 6, on the other hand, opposite views are presented in an attempt to give as nuanced a picture as possible.

To decipher what is enshrined in international human rights treaties, relevant sources of international law are used. According to Article 38(1) of the Statute of the ICJ, the sources of international law are:

(1) International conventions, whether general or particular, establishing rules expressively recognised by the contesting states;

(2) International custom, as evidence of a general practice accepted as law;

(3) General principles of law recognised by civilised nations;

(4) Subsidiary means, including judicial decisions and teachings from scholars.

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This list is exhaustive.²⁰ ‘Conventions’ are legally binding agreements between two or more states. The agreement can be named ‘treaty’, ‘agreement’, ‘covenant’, ‘declaration’,

‘regulation’, or any other synonym to ‘convention’, but they all have the same legal status regardless of what they are called.²¹ Such legally binding documents are governed by the

‘Law of treaties’ – the 1969 Vienna Convention on the Law of Treaties (VCLT).²² The VCLT includes rules on conclusion and entry into force, reservation, application, interpretation and termination of treaties and attempts to codify customary rules.²³ Articles 31 and 32 of the VCLT lay down the rules for the interpretation of treaties. They aim to result in an interpretation as close to the consent given by the state parties as possible.²⁴

International customs, on the other hand, consists of two elements: ‘general practice’

and ‘accepted as law’ or opinio juris.²⁵ The former being an objective element, and the latter a subjective. However, whether something is ‘general practice accepted as law’ is not always evident. To find out, one must look at “actual practice and opinio juris”²⁶, inter alia decisions and judgements from domestic courts, accession to multilateral treaties teachings from scholars²⁷, as opposed to “deduction of preconceived ideas”.²⁸ Regarding general principles, they must be recognised in all or most national legal systems. They include inter alia good faith and pacta sunt servanda.²⁹ Lastly, subsidiary means, such as judicial decisions, ‘soft’-law documents, political resolutions and declarations, and teachings from scholars, differ from the other three categories in that they do not constitute binding rules of international law.³⁰ However, such means may nevertheless to a great extent influence international conduct.³¹

20 Orakhelashvili, A, “Akehurst’s Introduction to International Law”, 8^th edition, Routledge, 2019, p 32.

21 Ibid.

22 The VCLT only governs written treaties. This does not mean, however, that the binding force of verbal agreements are ruled out since it is likely that they are governed by the customary rules that are codified in the VCLT, see ibid, p 252.

23 Ibid, p 251.

24 Ibid, p 265.

25 Nicaragua v USA (Nicaragua case), ICJ Reports 1986, 14.

26 Continental Shelf (Libya v Malta), ICJ Reports, 1985, 29.

27 Orakhelashvili, supra note 20, pp 31-45.

28 Gulf of Maine, ICJ Reports, 1982, 126.

29 Orakhelashvili, supra note 20, p 46.

30 Ibid, p 46–48.

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Materials

The materials used in this thesis are mainly derived from the sources of international law enumerated above: treaties, customary rules and where applicable, court judgements and teachings from scholars interpreting and/or analysing the provisions of those treaties. The international human rights treaties have been chosen based on historical influence and/or the number of accessors. The existence of case law concerning the treaties has also been taken into account when choosing. When relevant, a selection of such case law has had to be made. The three theories or groups of theories presented in section 6 have been selected based on their relevance (will they be applicable to the issue of this thesis?) and their differences (will they account for alternative solutions?).

A number of non-legal sources have been used to provide empirical data for the sociological setting for this thesis. Such sources are inter alia journalistic articles from recognised newspapers and magazines, mainly international but also Swedish ones reports from UN fact-finding missions and special rapporteurs, databases provided by the IMF, the World Bank and the UN, and reports and information provided by Facebook Inc./Mark Zuckerberg themselves. It has been taken into consideration that only a minority of these non-legal sources provide scientifically collected data. However, with regards to their consignors being internationally recognised as legitimate, the data will nevertheless be held true in this thesis.

Disposition

After this introductory section (1), the following two sections will provide the legal (2) and sociological (3) setting within which the subsequent sections will operate. Thereafter, section (4) and (5) will explore any legal obligation for corporations and states respectively to respect and protect the freedom of expression and right to privacy on Facebook. Section (6) will then, against the background of the results of the previous sections, present and analyse different jurisprudential theories on how to lessen the gaps between individuals’ de jure enshrined human rights and their de facto ability to enjoy them on social media. Finally, section (7) will provide some final remarks and discuss the way forward.

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Legal starting points

The Westphalian model

Public international law (hereinafter international law) regulates the relations between states. The cornerstone of international law is the principle of sovereignty, entailing that a state is independent and autonomous in relation to other states, it has the exclusive power to rule over its own territory (jurisdiction) and cannot be legally unsubordinated to another state, or another authority for that matter.³² Even if a state enters into an international agreement, in which it is deprived of its de facto autonomy, such as the EU treaties, such an agreement does not entail that the state has lost its status as ‘sovereign’

– such an agreement is merely the result of a state exercising its inherent sovereignty.³³ The principle of non-intervention originates from the principle of sovereignty, which prohibits states from interfering in the internal affairs of another state, neither by the use of military force nor in any other way.³⁴ Against this background, the only way to regulate the relations between states is by consent and reciprocity – the two legitimising elements of international law.³⁵ Exceptions from the principal rule of consent are jus cogens rules;

they are binding to all states regardless of consent.³⁶ By extension, the elements of consent and reciprocity give the international legal system a horizontal character. In opposite to this, there are our municipal legal systems, where all subjects are bound by the law whether they have consented or not, i.e. municipal legal systems have a vertical character.³⁷ Since international law is horizontal, no other subjects than states can be a fully legitimate subject of it. To be directly binding to other subjects, such as natural or legal persons, international law must be implemented into the municipal legal systems.³⁸

The model described above is referred to as the Westphalian model, the name originates from the Peace of Westphalia in the year 1648, marking a new political order

32Loutus case, PCIJ, Series A No 7.

33 Wimbeldon case, Permanent Court of International Justice, Series A, No 125.

35 Ibid, p 9.

36 Ibid, p 33.

37 Ibid.

38 Bantekas, I, and Oette, L, “International Human Rights Law and Practice”, 2^nd edition, Cambridge University Press, 2018, p 57. This goes for dualist states. Monist states, however, consider international law to be directly applicable in their municipal systems. Only a few states claim to be monist, and in practice no states are de facto strictly monist or dualist.

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in Europe. This was the end of the religious wars between catholic and protestant states and a recognition of the fact that the state was independent of the church. In this new system, all states were considered to be sovereign and legally equal, and this system has been prevailing ever since.³⁹ However, in the 20th century, after the two World Wars, the idea that all human beings are born free and equal and that their dignity is inviolable, was the first seed of what today is known as international human rights law.⁴⁰ Since human rights law is international law but addressed to natural persons, it is argued that the rise of human rights was the first step towards a slow erosion of the horizontal character of the Westphalian model. With human rights law, states no longer have the exclusive power to do what they want within their own territory, they have obligations to respect and protect human rights too.⁴¹ Other signs of erosion can be seen in international criminal law, where natural persons have obligations directly under international law and can be held responsible for their actions by the International Criminal Court (ICC)⁴², and in the

“war on terrorism” where natural and legal persons can be subject to onerous legal measures.⁴³ Finally, attempts have been made, with mixed results as we shall see, to oblige companies through international law to respect and protect human rights.

Human rights as a concept – sources, validity, purpose and scope

What are ‘human rights’? The term is often used as if its meaning was obvious, however, when you look closer, it is presumably not. There are several different schools of human rights theories, where some see human rights as given, others as what is agreed upon or talked about or fought for.⁴⁴ Scholars from different disciplines, supporters of different schools, and members of the public refer to the term ‘human rights’ freely – sometimes meaning different things – depending on the context, purpose and agenda of the consignor.⁴⁵ With a wider interpretation of the term, “loving whomever you want” and

“female empowerment” are ‘human rights’, and with a narrower interpretation only rights

40 Bantekas and Oette, supra note 38, p 6–7.

41 Ibid.

42 The common Article 3 of the Geneva conventions states that “all” parties to armed conflicts are bound by the rules of the conventions, and Article 1 of the Rome Statute states that the ICC has “jurisdiction over persons”.

43 See e.g. the UN sanction regimes 1267/1989/2253 and 1373 addressed to terrorist and terrorist organisations, and Bantekas and Oette, supra note 38, chapter 1.3.2.

44 Bantekas and Oette, supra note 38, p 30.

45 Ibid, p 4.

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explicitly or implicitly recognised in international treaties and other legal sources are

‘human rights’.

Thus, human rights have two sides, partially intertwined: they are claims based on particular values or principles, like the two examples above, and they are legal rights that entail entitlements and freedoms.⁴⁶ In political, philosophical and theological discourse, human rights are broader than in international human rights law. This means that even though the two sides often overlap in their perception of a certain right, it is not always the case; i.e. every claim based on a particular value does not have a legally recognised counterpart.⁴⁷ For example, there is a legally recognised right to marry and found a family, e.g. in Article 12 in the European Convention for the protection of Human Rights and Fundamental Freedoms (ECHR), however, this does not for the time being explicitly and absolutely include same-sex marriage.⁴⁸ There are entire conventions dedicated to strengthening women’s position in society, such as the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), however, there is no legally recognised right to ‘empowerment’ for women. The relationship between these spheres is, understandably, not always easy. Thus to take the meaning of the notion ‘human rights’

for granted, and to refer to it as something that is “just inherent to the virtue of being human”, would be to ignore the justified discord among the many theories about its foundations and validity.⁴⁹

Against this epistemologically ambiguous background, however, at some point a scholar of any discipline must choose from what point of view, and baes on what theories, to conduct their research. Since this is a thesis on international law (of which the purpose is not to question the foundations and validity of human rights as a notion), the remainder of it will take a legal point of view on human rights. Though a strictly legal perspective on human rights is not as straight forward as saying ‘human rights are what the law says’

– the law is also based on theories of human rights. The Universal Declaration of Human Rights (UDHR) from 1948 marks the start of modern international human rights law and is surprisingly agnostic in its views on the notion of human rights. Ideas that human rights

46 Ibid, p 5.

47 Ibid.

48 Shalk and Kopf v Austria of 22 November 2010 (application no 30141/04). Due to the lack of a European consensus on the issue of same-sex marriage, the ECtHR has left the matter to the legislators of the state parties to decide whether or not to allow it.

49 Bantekas and Oette, supra note 38, p 5.

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are inherent (natural, given) is stated in the preamble of the UDHR, and human rights are still seen by legal scholars and practitioners as universally applicable, transcending time, space and culture as they are portrayed in the UDHR.⁵⁰ Furthermore, the legal perspective of human rights views the role of the state as to be to provide societal order, security and basic welfare without unjustified interference with the human rights of individuals.⁵¹ On this note, through international human rights law, states undertake to respect and protect (negative and positive) human rights, and the recipients are the citizens of that state.

International human rights law addresses the relationship of individuals in power and individuals without power⁵² through civil and political rights and rights to equality and non-discrimination, and the material conditions for a life in dignity and freedom through economic, social and cultural rights.⁵³ Finally, several human rights originating from international human rights law often have municipal counterparts, then called constitutional rights, that does not always entirely overlap.

50 Ibid, p 30. The idea that human rights are universally applicable have been especially criticised.

51 Ibid, p 31.

52 ‘In power’ here means individuals representing the state. As we shall see below, de facto powerful individuals who represent, say, a company, are however not included in this term. Also, individuals who happen to represent the state in certain matters have human rights too when acting in capacity of themselves as human beings.

53 Bantekas and Oette, supra note, 38, p 6.

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Facebook as the social infrastructure of a global community

Problems and prospects

Since the start in 2004, Facebook has been a unique success, creating a whole new way for people all over the world to communicate and share information. In fact, they have become so big, that if Facebook was a country, it would be the largest country in the world with its 2,7 billion monthly active users.⁵⁴ That is approximately one-third of the world’s population⁵⁵ and almost two-thirds of all internet users worldwide.⁵⁶ Facebook Inc.’s business model is double-edged, which sometimes makes it necessary to talk about

‘Facebook the company’ and ‘Facebook the social media platform’ as two separate things.

Usage of the platform is, unlike most other products, free of charge worldwide. Instead, they make their money from selling information about their users in combination with advertising space on the platform.⁵⁷ In order to show ads that are relevant to every individual user (because that’s what users want, according to Facebook), they track user- behaviour and create categories based on e.g. what pages they like, where they live and work, and what posts they engage with (i.e. personal data); and charge advertisers accordingly.⁵⁸ In 2019, Facebook Inc.’s revenues amounted to approximately 70 billion US dollars, and approximately 99% of that came from advertising.⁵⁹ Thus are there substantial financial incentives in personal data, making the right to privacy on social media a topical human rights issue. Facebook Inc. also owns the social media platforms Instagram and Snapchat.⁶⁰

Facebook’s founder and CEO Mark Zuckerberg revealed in an open letter published on the platform in 2017, that his ambition was for the platform to help humanity “take the

54 Facebook Inc. “Facebook reports on third quarter 2020 results” (last visited 2021-01-23), to date the results of the fourth quarter 2020 has not yet been made official. As a comparison to this, China, the country with the largest population in the world, has to date a population of approximately 1,4 billion people (last visited 2021- 03-20)

55 According to the UN:s biannual estimation, there were 7,7 billion people in the world as of 2019. See (last visited 2021-01-22).

56 See https://www.statista.com/statistics/617136/digital-population-worldwide/ (last visited 2021-01-22).

57 Zuckerberg, M, ”Understandig Facebook’s business model” 24 January 2019, (last visited 2021-01-23).

58 Ibid.

59 Facebook reports on fourth quarter and full year 2019 results (last visited 2021-01-23). As a comparison, 70 billion US dollars is more than the GDP of approximately 35% of all the countries in the world (individually), as per the IMF 2020 estimate (last visited 2021-01-30).

60 https://en.wikipedia.org/wiki/List_of_mergers_and_acquisitions_by_Facebook (last visited 2021-03-20).

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next step” by becoming the “social infrastructure” of a “global community”.⁶¹ In an interview in 2018, Zuckerberg resembled Facebook by a government, rather than a traditional company, due to the conflicts between different human rights that arise through the usage of the social platform. In order to adjudicate those conflicts, Facebook has to set up policies and governance, according to Zuckerberg.⁶² The latest addition to their adjudication tool-box is the court-like Oversight Board.⁶³ The purpose of the board is to

“protect freedom of expression” by “making principled, independent decisions” about the permissibility of certain user-generated content.⁶⁴ And as it turns out, Zuckerberg’s parable is not taken out of the blue.

The user-generated content on Facebook is moderated according to Facebook’s Community Standards,⁶⁵ and in the last decade the way Facebook moderates (or rather doesn’t moderate) user-generated content has put the platform in the spotlight of the press, international organisations, and human rights defenders. For example, in 2018 the UN independent fact-finding mission on Myanmar released a report stating that Facebook had a “significant role” in spreading the hate that eventually led up to the genocide of the Rohingya people, by not deleting hateful posts and messages in order to prevent further spreading.⁶⁶ According to UN investigator Yanghee Lee, the violence against the Rohingya people stands in direct correlation to Facebook’s presence in Myanmar.⁶⁷ Furthermore, the platform plays a central part in Myanmar society, in fact, “everything”

is done via Facebook – it is the only news source for many people, and a lot of information from public authorities is communicated only via Facebook.⁶⁸ Similar accusations were made towards Facebook when it was clear that Russian trolls had interfered with the

61 Zuckerberg, M, “Building Global Community”, 16 February 2017 (last visited 2021-01-22).

62 Klein, E, “Mark Zuckerberg on Facebook’s hardest year, and what comes next”, Vox, 2 April 2018 (last visited 2021-01-22)

63 See Facebook Oversight Board Charter.

64 See Facebook Oversight Board Bylaws, p 1. The “jurisdiction” of the Oversight Board will at first only include posts that Facebook have decided to delete, not posts that have been left online. It is moreover unclear whether the Oversight Board will be able to review decisions to down rank posts (which affects how posts are shown to users). The Oversight Board will be financed by a trust, that in turn will be funded by Facebook. For a more in-depth analysis of the implications of the Oversight Board, see Douek, E, “Facebook’s Oversight Board: For Once, Moving Slowly”, Lawfare, 28 January 2020.

65 https://www.facebook.com/communitystandards/ (last visited 2021-03-20).

66 Resolution A/HCR/39/64 “Report of the independent international fact-finding mission on Myanmar” para 74.

67 BBC News, “UN: Facebook has turned into a beast in Myanmar”, 13 March 2018 (last visited 2021-01-23).

68 Miles, T, “U.N. investigation cite Facebook role in Myanmar crisis”, Reuters, 12 Mars 2018 (last visited 2021-01-22).

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American presidential election in 2016 by spreading disinformation⁶⁹, and when a whistleblower revealed that Cambridge Analytica, under the lead of Donald Trump’s top political advisor Steve Bannon, had gathered personal data from 50 million American Facebook users in order to create pro-Trump ads, with Facebook’s knowledge.⁷⁰ In May 2020, Facebook was in the spotlight again for not deleting posts by then US President Trump, accused of glorifying violence contrary to the Community Standards after large protests due to the killing of a coloured man by the police.⁷¹ Also, Facebook decided not to follow Twitter on fact-checking President Trump’s posts as a measure to reduce the spread of fake news before the 2020 election, arguing that Facebook is not “the arbiter of truth”.⁷² After losing the election, Trump instantly claimed that the election was fraudulent in favour of Joe Biden, encouraging his supporters on social media to “stop the steal”. On January 6^th 2021, Trump supporters stormed the Capitol Building in Washington D.C. in an attempt to contest the certification of Biden as the new US President. For weeks before the storm, content on social media platforms like Facebook, Twitter and YouTube, testified that the storming would take place. However, the platforms’ actions were arguably “too little, too late”.⁷³ The Capitol siege led to Trump being indefinitely suspended from both Facebook and Twitter.⁷⁴

However, the great majority of all leave up/take down decisions made by Facebook moderators do naturally not spark the interest of the press or have no immense implications for international politics or the lives of millions of people at a time. An Italian case from 2019 highlights some of the core issues, both de jure and de facto, regarding human rights and social media. In September 2019 Facebook decided to delete all pages, groups and profiles on their platform belonging to the Italian far-right-wing party CasaPound, a relatively small but very active organisation, for the violation of the

69 See supra note 17.

71 Olson, E, “Intern storm på Facebook – anställda slutar i protest”, Svenska Dagbladet, 3 June 2020 (last visited 2021-01-23).

72 Wulfsohn, J, “Twitters Jack Dorsey fires back at Zuckerberg, defends fact-checking Trump tweets”, Fox News, 28 May 2020 (last visited 2021-01-23).

73 Paul, K, Culliford, E, and Menn, J, “Analysis: Facebook and Twitter crackdown around Capitol seige is too little too late”, Reuters, 9 January 2021 (last visited 2021-03-23).

74 See https://about.fb.com/news/2021/01/responding-to-the-violence-in-washington-dc/ (last visited 2021-03- 23). The decision has been referred to the Oversight Board (last visited 2021-03-23).

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Community Standards (hate speech and incitement to violence).⁷⁵ The group often have poor election results but had before the ban almost 250 000 “likes” on Facebook.⁷⁶ In December the same year, a tribunal in Rome adopted a precautionary measure ordering Facebook Ireland Ltd. to restore all pages and groups connected to CasaPound.⁷⁷ According to the tribunal, Facebook has reached a de facto systemic role to the purposes of political participation under the constitution, and given that systemic role, Facebook has a “special position” towards private individuals. As a consequence, Facebook is bound by the obligations arising from the Italian constitution.⁷⁸ Moreover, the tribunal dismissed Facebook’s argument that the deleted profiles, in turn, were contrary to (other parts of) the constitution – it is not up to Facebook to decide who is a legitimate political actor in Italy.⁷⁹ This judgement is unique, first, because it recognises Facebook as a private holder of power (but denies them their authority), and second, because it is an example of direct horizontal effect of constitutional rights between two private subjects – the judgement was not based on the parties’ contractual relationship, but the right for all physical persons to engage in political parties, as stated in Article 49 of the Italian constitution.⁸⁰ Worth noting is also the fact that on a linguistic level, the tribunal quickly changed from “Facebook Ltd”, who was the procedural defendant, to just “Facebook”.

According to Behring and Goila, this indicates that perhaps it was not ‘Facebook the legal person’ that had reached a “systemic role” and infringed constitutional rights, but

‘Facebook the transnational actor in control of a global social community’.⁸¹

75 Tondo, L, “Facebook closes neo-fascist party’s account”, The Guardian, 9 September 2019 (last visited 2021-01-23).

76 Ibid.

77 Tribunale di Roma R.G 59264/2019.

78 Ibid.

79 Ibid.

80 Behring, R, and Golia, A, “Private (Transnational) Power Without Authority”, Verfassungsblog, 18 February 2020.

81 Ibid.

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Implications for the individual

These are just a few examples of Facebook’s influence over the exercise of fundamental rights on and off their platform. The examples discussed include the rights encompassed in the scope of this thesis – freedom of expression and the right to privacy – as well as the prohibition of torture and other non-legal notions such as democracy and public safety and order. It’s fair to say that their influence is not insignificant. What many of the examples above have in common is that it is not Facebook themselves that have been the perpetrator, but they have by their omission to act facilitated de facto infringements. In other cases, Facebook themselves are the perpetrator, e.g. in cases where posts are deleted and in cases related to personal data. Moreover, in cases concerning freedom of expression (which, in one way or the other, are most cases), their course of action inevitably includes a de facto balancing of rights, i.e. leaving a post online is in favour of the freedom of expression, but deleting it is in favour of “the rights of others”.⁸² As we shall see below, such balancing of rights is usually intended for states only.

Even though Facebook facilitate infringements of human rights, one should not forget they at the same time facilitate the exercise of the same rights, and are considered crucial for this purpose.⁸³ The development towards private actors facilitating both the enjoyment of and the de facto power to deviate from, human rights on a large scale – powers traditionally solely within the domain of the nation-state – have created a semi-public space. At this point, one might argue that the Italian tribunal in the CasaPound case came up with a clever solution to this dilemma– and in theory, it is clever. In practice, however, it does not solve the problem. Fact is, in line with international private law, the tribunal’s decision must be executed by Irish courts (where Facebook has its European HQ).⁸⁴ Since giving constitutional rights a horizontal effect is a rather unusual solution, the risk that such judgements violate the Irish ordre public⁸⁵, cannot be ruled out.⁸⁶ Hence – the individuals affected by Facebook’s decisions would not de facto be effectively remedied.

82 “The rights of others” is often depicted as the limit for free expression, see section 5.

83 See Joyce, supra note 8.

84 Reg. 1215/2012/EU.

85 According to Article 45 Reg. 1215/2012/EU, recognition of a foreign judgement may be refused is it is manifestly contrary to the public policy (ordre public) of the forum state. The purpose of this notion is to

“preserve legal concord”, the harmony of the forum states legal system, by refusing to apply or recognise foreign law/judgements that which contradicts the basic values of the forum law. Nota bene the similarities to the positivism vs pluralism debate in section 6. For more see e.g. Leible, S, (eds), “General Principles of European Private Law”, 1^st edition, Kluwer Law International BV, 2016.

86 Behring and Golia, supra note 80.

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Moreover, the execution of such judgements might result in overlapping and contradicting obligations for Facebook, making the judgements even less effective.⁸⁷

Apart from constituting a semi-public space and facilitating de facto human rights infringements, Facebook is a unique and interesting issue in the human rights context in other ways too. First of all, being a social media platform, using the internet as its means, gives the platform an abstract and cross-border character.⁸⁸ This enables the platform to reach out to a number of people not comparable to any other company or type of business.⁸⁹ In addition, this character makes their conduct and misconduct difficult to connect to a certain territory and thus to establish which courts have jurisdiction to adjudicate cases concerning user-generated content. The courts of the countries where Facebook is registered as a company? The countries where the servers are located? The users home state? Second of all, Facebook’s business affects mainly civil rights. The corporate social responsibility discourse is not new, but it usually revolves around economic, social and cultural rights and environmental sustainability.⁹⁰ In conclusion, Facebook’s unique features in the human rights context can be further demonstrated, and the two points made here can be connected, by a simple example. A global retail company sell physical products, in physical stores, manufactured by humans in physical factories.

The physical character of this business makes it easy to establish what laws apply to each product, store, employee and factory; and which courts have jurisdiction to adjudicate over them: the laws and courts of the country where the product is bought, the store or the factory is located, and under which the employee is employed.⁹¹ The social responsibility of a global retail company mainly includes the working conditions of their employees and subcontractors and the environmental impact of their business – not political and democratic issues like the freedom of expression.⁹²

87 Ibid.

88 Kettemann, supra note 19, section 2.

90 See e.g. Bantekas and Oette, supra note 38, p 783.

91 Loutus case, Permanent Court of International Justice, Series A No 10.

92 See e.g. Bantekas and Oette, supra note 38, p 784.

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Corporate responsibility to respect human rights

Introduction

Due to globalisation, in the past decades, multinational corporations have experienced a substantial increase of de facto influence over human rights while the international normative framework in this area has struggled to keep up.⁹³ Therefore, in the last couple of years, attempts have been made to regulate the responsibilities of companies regarding human rights through international law. This section will briefly explain the material scope of the most essential international and regional frameworks relevant to the scope of this thesis.

Corporations in general

The Protect, Respect and Remedy-framework

In 2008 UN Human Rights Committee adopted the Protect, Respect and Remedy- framework, as a measure to reverse the trend of increasing human rights abuse by multinational corporations.⁹⁴ The framework has three pillars: state duty to protect, corporate responsibility to respect, and access to remedies.

States have a duty to protect their residents from human rights infringements made by companies, by taking all necessary measures.⁹⁵ Corporations have in turn a responsibility to respect human rights. In this regard, “to respect” means to not in any way infringe on the rights of others.⁹⁶ This responsibility requires due diligence in order to become aware of, prevent and address their human rights impacts.⁹⁷ The first step is to identify any specific human rights challenges posed by the country context in which the activates takes place. The second step is to identify which human rights impact their activities may have in this context. The third and last step is to identify whether their relations to business partners, suppliers, state-agencies etc. indirectly contributes to human rights abuse.⁹⁸ Finally, both states and corporations must work towards increasing access to effective

93 Resolution A/HCR/8/5 “Protect, Respect and Remedy: a Framework for Business and Human Rights”, para 3.

94 Ibid, para 1.

95 Ibid, para 27.

96 Ibid, para 54-55.

97 Ibid, para 56.

98 Ibid, para 57.

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remedies. Grievance mechanisms can be both judiciary and non-judiciary, provided by the state or to the corporation itself.⁹⁹ The principles of the framework are not legally binding, neither to states nor to corporations. It is also underlined that the international human rights regime rests upon the central role of the state in international law, and therefore the state duty to protect is the core principle of the framework rather than corporations’ responsibility to respect.¹⁰⁰

Zero draft of a binding instrument regarding human rights and transnational corporations

Ten years after the Protect, Respect and Remedy-framework, the UN Human Rights Committee published a draft to a legally binding instrument concerning human rights and corporations in July of 2018.¹⁰¹ Ever since the intergovernmental working group was given its mandate by the UN in 2014, human rights lawyers and experts have hoped that it would result in a legally binding instrument obliging corporations directly under international law to respect human rights.¹⁰² However, in the preamble, it is stated that the primary responsibility to respect, promote, protect and fulfil human rights lies with the contracting states, even if corporations “shall” respect human rights. Thus, like the Protect, Respect and Remedy-framework, the provisions of the draft are addressed to states. It is possible to argue that the wording “corporations shall” can be interpreted as if the provisions are binding to corporations as well, however, the general understanding is that it is only the core of international treaties that are binding.¹⁰³ Moreover, apart from in the preamble, the responsibilities of corporations are not mentioned in the draft.¹⁰⁴

Compared to the Protect, Respect and Remedy-framework the draft instrument also encompasses obligations to promote and fulfil human rights and advance international cooperation.¹⁰⁵ Furthermore, Article 10 obliges the contracting states to ensure that both natural and legal persons can be held liable under national law, either through civil or

99 Ibid, para 82–87.

100 Ibid, para 50.

101 UN HCR “Zero draft legally binding instrument to regulate, in international human rights law, the activities of transnational corporations and other business enterprises”

102 Bernaz, N, “The Draft UN Treaty on Business and Human Rights: the Triumph of Realism over Idealism”, www.business-humanrights.org (last visited 2021-02-19).

103 Ibid.

104 Ibid.

105 Supra note 101, Article 2.

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criminal procedures or through administrative sanctions. Article 10.10 underlines that the contracting states must ensure that legal persons in particular are subject to effective sanctions if found liable.

EU Global Human Rights Sanctions Regime

In December 2020 the EU Council adopted a regulation and a decision establishing a global human rights sanctions regime.¹⁰⁶ All funds and economic resources belonging to, owned, held or controlled by any natural or legal person, entity or body shall be frozen¹⁰⁷; if they are responsible for genocide, crimes against humanity, torture, slavery, or any other widespread or systemic acts of human trafficking, sexual and gender-based violence, or violations or abuses of freedom of peaceful assembly, expression or religion.¹⁰⁸ This applies to state actors, other actors exercising effective control or authority over a territory and, under certain circumstances, non-state actors.¹⁰⁹ When establishing whether a non-state actor shall be included, the gravity and/or impact of the abuses and the objectives of the common foreign and security policy as set out in Article 21 TEU shall be taken into account.¹¹⁰

Other

The International Labour Organisation’s (ILO) Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy¹¹¹, the OECD:s guidelines for multinational corporations¹¹² and the UN initiative Global Compact¹¹³ also inflict a responsibility for multinational corporations to respect international human rights, although the frameworks are not legally binding upon the corporations and do not give rise to any sanctions if they are not followed.

106 Council Regulation (EU) 2020/1998 and Council Decision (CFSP) 2020/1999 Concerning restrictive measures against serious human rights violations and abuses.

107 Article 3(1), Council Regulation 2020/1998.

108 Ibid, Article 3(2) and 2(1).

109 Ibid, Article 2(3).

110 Article 1(4), Council Decision 2020/1999.

111 ILO Official Bulletin, Series A, No. 3 (2000).

112 Organisation for Economic Co-operation and Development, DAFFE/IME/WPG(2000)15/FINAL

113 https://www.unglobalcompact.org/what-is-gc/our-work/social/human-rights (last visited 2021-03-20).

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Internet intermediaries in particular

CoE recommendation on the roles and responsibilities of internet intermediaries Similar to the previous instruments, the provisions of the Recommendation CM/Rec(2018)2 of the Committee of Ministers to member States on the roles and responsibilities of internet intermediaries from the Council of Europe (CoE) are not binding, not to states nor to corporations, and they are addressed to the CoE member states.¹¹⁴ However, the recommendations take aim at internet intermediaries specifically.

According to the guidelines on actions to take in the appendix, member states should aim to ensure a number of responsibilities of internet intermediaries concerning human rights, e.g. to respect human rights as stated in the Protect, Respect and Remedy-framework¹¹⁵, to ensure a transparent content moderation¹¹⁶, to limit the processing of personal data to what is necessary¹¹⁷ and to ensure access to effective remedies.¹¹⁸

The Digital Services Act

The Digital Services Act (DSA) was proposed to the European Parliament by the European Commission in December of 2020. The DSA is one of two proposals in the Digital Services Act Package, the other one being the Digital Markets Act. The objective of the DSA is to update the EU’s legal framework regarding the responsibilities of digital service providers on the internal market, particularly the e-Commerce Directive¹¹⁹ from 2000, to meet the challenges posed by an increasing societal dependency on digital services.¹²⁰ The core of the DSA is a set of cumulative due diligence obligations for internet intermediaries, increasing in number depending on the role, size and impact of the intermediary – where the most extensive obligations lie with ‘platforms’ and ‘very large platforms’ reaching more than 10% of the 450 million European consumers.¹²¹

114 Paragraph 12 of Recommendation CM/Rec(2018)2 of the Committee of Ministers to member States on the roles and responsibilities of internet intermediaries.

115 Article 2.1 of the Appendix to Recommendation CM/Rec(2018)2.

116 Ibid, Article 2.2-2.3.

117 Ibid, Article 2.4.2.

118 Ibid, Article 2.5.

119 Directive 2000/31/EC.

120 Explanatory Memorandum to the “Proposal for a regulation of the European Parliament and of the Council on a Single Market for Digital Services (Digital Services Act) and amending Directive 2000/31/EC (2020/0361/COD)”, p 1.

121 Articles 10-33 of the proposed Digital Services Act (2020/0361/COD).

Mind the Gaps

Department of Law Spring Term 2021

Master’s Thesis in Public International Law 30 ECTS

Mind the Gaps

Why de facto protection of human rights on social media is so difficult and what could be done about it

Author: Helena Borgå

Supervisor: Associate Professor Maria Grahn-Farley

Table of contents

Abstract

Sammanfattning

Abbreviations

Introduction

Legal starting points

Facebook as the social infrastructure of a global community

Corporate responsibility to respect human rights