A framework for identifying Internet information gatekeepers

Abstract

Issues of freedom of expression, intellectual property and data protection dominate debates concerning Internet governance, and the legal responsibility of gatekeepers is often at the centre of such discussions. A focused analysis is needed on what is meant by the term and how to identify and differentiate between the various gatekeepers. This article traces the historical development of the term gatekeeper and shows how traditional conceptions of gatekeeping are inadequate for the context of the Internet where gatekeeping primarily involves control over the flow, content and accessibility of information. A particular type of gatekeeper will be identified, termed ‘Internet Information Gatekeepers’, which are those gatekeepers that as a result of their control of the flow of information, control deliberation and participation in democratic culture. This article will then propose a human rights driven framework for identifying and differentiating between the various gatekeepers and their levels of responsibility.

Keywords:

• gatekeeper
• Internet
• human rights

Acknowledgement

Special thanks to Andrew Murray for his thoughts and advice on this article.

Notes

P. Shoemaker, Gatekeeping (Communication Concepts) (Newbury Park, CA: Sage, 1991), 235. For information on gatekeeping, see some of the following material. Shoemaker has recently updated her work in Gatekeeping Theory (New York: Routledge, 2009). See J. Braithwaite and P. Drahos, Global Business Regulation (Cambridge: Cambridge University Press, 2000); J.C. Coffee, Gatekeepers: The Professions and Corporate Governance (Oxford: Oxford University Press, 2006); K. Lewin, ‘Frontiers in Group Dynamics’, Human Relations 1, no. 2 (1947): 143–53; R.H. Kraakman, ‘Corporate Liability Strategies and the Costs of Legal Controls’, Yale Law Journal 93 (1983–1984): 857; R.H. Kraakman, ‘Gatekeepers: The Anatomy of a Third-Party Enforcement Strategy’, Journal of Law, Economics and Organization 2 (1986): 53–104. In the Internet context, see in particular, J. Zittrain, ‘A History of Online Gatekeeping’, Harvard Journal of Law & Technology 19, no. 2 (2006): 253, who discusses Kraakman extensively, R.A. Heverly, ‘Law as Intermediary’, Michigan State Law Review (2006), 107–8, M.D. Birnhack and N. Elkin-Koren, ‘The Invisible Handshake: The Reemergence of the State in the Digital Environment’, Virginia Journal of Law and Technology 8 (2003): 6, and R.J. Mann and S.R. Belzley, ‘The Promise of Internet Intermediary Liability’, William and Mary Law Review 47 (2005): 239. Also see the work of K. Barzilai-Nahon, discussed throughout this article, in note 8 below.

J. Black, ‘Decentring Regulation: Understanding the Role of Regulation and Self-Regulation in a “Post-Regulatory” World’, Current Legal Problems 54 (2001): 103, 110–2. See also B. Morgan and K. Yeung, An Introduction to Law and Regulation: Text and Materials (Cambridge: Cambridge University Press, 2007), 280, and R. Brownsword and H. Somsen, ‘Before We Fast Forward – A Forum for Debate’, Law, Innovation & Technology 1, no. 1 (2009): 1–8.

J. Freeman, ‘Private Parties, Public Functions and the New Administrative Law’, in Recrafting the Rule of Law, ed. D. Dyzenhaus (Oxford: Hart Publishing, 1999), 331–5. See also by J. Freeman, ‘The Private Role in Public Governance’, New York University Law Review 75 (2000): 543.

C. Metoyer-Duran, ‘Information Gatekeepers’, Annual Review of Information Science and Technology 28 (1993): 111–8.

Shoemaker, Gatekeeping Theory (2009), 1; and see P. Shoemaker, M. Eichholz, E. Kim and B. Wrigley, ‘Individual and Routine Forces in Gatekeeping’, Journalism and Mass Communication Quarterly 78, no. 2 (2001): 233–46 Kraakman's definition is from Kraakman, ‘Gatekeepers: The Anatomy’, 53–4. For Coffee's definition see Coffee, Gatekeepers: The Professions, 2. Also see D. McQuail, Mass Communication Theory, 5th ed. (London: Sage, 2005), 308 and D. McQuail, Media Accountability and Freedom of Publication (Oxford: Oxford University Press 2003), 4.

For a critical discussion of the European approach see, for example, D. Tambini, C. Marsden and D. Leonardi, Codifying Cyberspace (London: Routledge, 2008). See also Bunt v. Tilley & Ors [2006] EWHC 407 (QB). With regard to the USA, see cases such as Reno v. ACLU, 521 U.S. 844 (1997), Zeran v. AOL, 129 F.3d 327 (4th Circ. 1997), and more recently CLCCRL v. Craigslist Inc, WL 681168 (7th Cir. March 14, 2008) and Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, WL 879293 (9th Cir. 3 April 2008). See also discussion in J. Zittrain, ‘Internet Points of Control’, Boston College Law Review 44 (2002–2003): 653.

Zittrain, ‘A History’, 253, and 255–6; Mann and Belzley, ‘Promise of Internet’, 19; Brownsword and Somsen, ‘Before We Fast Forward’, 7; J. Zittrain, The Future of the Internet and How to Stop It (New Haven, CT: Yale University Press, 2008).

K. Barzilai-Nahon, ‘Toward a Theory of Network Gatekeeping: A Framework for Exploring Information Control’, Journal of the American Society for Information Science and Technology 59, no. 9 (2008): 1493–5. See her other work on gatekeepers in Barzilai-Nahon, ‘Gatekeepers, Virtual Communities and the Gated: Multidimensional Tensions in Cyberspace’, International Journal of Communications Law & Policy 11, no. 9 (Autumn 2006): 1–28 and in particular see Barzilai-Nahon, ‘Gatekeeping Revisited: A Critical Review’, Annual Review of Information Science and Technology 43 (2009), 433 and her summary of the various approaches to gatekeeping.

Business Leaders Initiative on Human Rights, United Nations Global Compact and the Office of the High Commissioner for Human Rights, ‘A Guide for Integrating Human Rights into Business Management I’: 8. There are many variations of the sphere of influence model, http://www.unglobalcompact.org/docs/issues_doc/human_rights/Resources/guide_hr.pdf

Black, ‘Decentring Regulation’, 110–1. For John Ruggie's discussion of sphere of influence, see his 2008 report, ‘Protect. Respect and Remedy: A Framework for Business and Human Rights’: http://www.reports-and-materials.org/Ruggie-report-7-Apr-2008.pdf (accessed 1 June 2010), 14–5. For Ruggie's material generally see http://www.business-humanrights.org/SpecialRepPortal/Home (accessed 1 June 2010). See in particular his yearly reports from 2006 to 2010, available at http://www.business-humanrights.org/SpecialRepPortal/Home/ReportstoUNHumanRightsCouncil (accessed 1 June 2010).

J.M. Balkin, ‘Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society’, New York University Law Review 79, no. 1 (2004): 3–4. He discusses therein T.I. Emerson, The System of Freedom of Expression (New York: Random House, 1970). Emerson describes such as a system as having four key values: (1) Self-fulfilment; (2) Advance of knowledge and discovery of truth; (3) Participation in decision making; (4) Stability of the community (Emerson, System of Freedom, 6–8).

See S. Orgad, ‘The Cultural Dimensions of Online Communication: A Study of Breast Cancer Patients’ Internet Spaces', New Media & Society 8, no. 6 (2006): 87. For a discussion of traditional speech theories, see E. Barendt, Freedom of Speech, 2nd ed. (Oxford: Oxford University Press, 2005), Ch. 1. Or, for example, Lingens v. Austria (1986) 8 EHRR 407 wherein the European Court of Human Rights commented that broadly, ‘freedom of expression … constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment’ (para 41), and specifically that ‘freedom of political debate is at the very core of the concept of a democratic society’ (para 42).

Oren Bracha and Frank Pasquale, ‘Federal Search Commission? Access, Fairness and Accountability in the Law of Search’, Cornell Law Review 93 (2008), 1149–59. For the Bracha and Pasquale quote in the following section, see 1160. For P. Dahlgren's quote above, see his article ‘The Internet, Public Spheres, and Political Communication: Dispersion and Deliberation’ Political Communication 22 (2005), 147–8. In a recent interview, J. Habermas expressed scepticism that the Internet can produce public spheres: S. Jeffries, ‘A Rare Interview with Jurgen Habermas’, Financial Times, 30 April 2010, http://www.ft.com/cms/s/0/eda3bcd8-5327-11df-813e-00144feab49a.html (accessed 2 June 2010). For the discussion that follows of James Bohman's approach, see J. Bohman, ‘Expanding Dialogue: The Internet, Public Sphere, and Transnational Democracy’, in Democracy Online: The Prospects for Political Renewal Through the Internet, ed. P.M. Shane (New York: Routledge, 2004), 49.

See the IWF's website, http://www.iwf.org.uk, for further information. For critical analysis of the role and remit of the IWF, see for example, J. Petley, ‘Web of Control’, Index on Censorship 38, no. 1 (2009): 78 and T.J. McIntyre and C. Scott, ‘Internet Filtering: Rhetoric, Legitimacy, Accountability and Responsibility’, in Regulating Technologies: Legal Future, Regulatory Frames and Technological Fixes, ed. R. Brownsword and K. Yeung (Oxford: Hart, 2008).

For news articles on the incident see S. Michaels, ‘Google Shuts Down Music Blogs Without Warning’, The Guardian, 11 February 2010, http://www.guardian.co.uk/music/2010/feb/11/google-deletes-music-blogs; C. Metz, ‘Google's “Musicblogocide” – Blame the DMCA’, The Register, 11 February 2010, http://www.theregister.co.uk/2010/02/11/google_musicblogocide_2010/. Google changed its policy with regard to bloggers in 2009. See Google's blog post in this regard, ‘Let the Music Play’ (26 August 2009), http://buzz.blogger.com/2009/08/let-music-play.html. See also Google's response to the incident, ‘A quick note about music blog removals’ (10 February 2010), http://buzz.blogger.com/2010/02/quick-note-about-music-blog-removals.html. The DMCA takedown letters are archived at Chilling Effects, http://www.chillingeffects.org. For the Blogger Terms of Service see http://www.blogger.com/terms.g