In this special issue, we present five original peer-reviewed articles, which examine a range of interesting and current legal issues surrounding social media. The issue showcases research in regulation and activism, public law vs. social media, privacy and identification, as well as copyright infringement on social media.
This is a very timely special edition. After an already long and strenuous battle with regulators across the world over fake news, takedown policies and the tracking of browsing-behaviour, social media took a sledgehammer blow in March 2018. The joint efforts of the Guardian and Channel 4 laid bare how Facebook's data policies resulted in massive amounts of user data effectively ending up in the hands of devious ‘political consultants’ such as Cambridge Analytica. Even if the scandal is unlikely to be Facebook's coup de grâce, it certainly seems to have brought about a watershed moment in social media scepticism. Investigatory ‘data-journalism’ is on the rise, and with it is a growing awareness among the broader public about the tech sector's shady underbelly. This growing momentum will hopefully lead to answers to some of the core questions policy-makers and academics have been struggling with for many years now already. These questions relate to, for instance, the regulation of content on online platforms and intermediaries, users privacy and data protection, accountability and transparency of platforms and governments, freedom of speech and autonomy of users, and the wider development of digital economy. Social media players constitute the nodes where these issues come together and therefore offer a great focal point to investigate and try to frame solutions. We believe that the contributions in this special issue will help elucidate some aspects of these questions and can inform the debate, policy and laws with well-presented and original research.
The first article, written by Celeste, investigates constitutional questions in the realm of social media, and how to deal with fundamental rights in relation to such global power actors. Fundamental human rights have traditionally been questions of a rather state-centric, public law nature. Yet today, these questions increasingly play out in the context of private actors, not in the least powerful social media operators transcending national borders. Celeste explores innovative solutions, such as the constitutionalisation of social media's terms of service and bills of rights of social media users. To what extent can these documents replace or complement existing constitutional instruments? Many of these documents at least seem to aspire to do so. According to the author, this aspiration can be explained by a desire for reconfiguring the constitutional equilibrium, which has been upset by these powerful tech players in the first place. Eventually, Celeste concludes that even though there might be some theoretical justification for constitutionalisation in social media, significant drawbacks remain. He explains how future constitutionalisation initiatives – either coming from private actors or the state – should be closely monitored and analysed. In the end, it might well be that a ‘multilevel’ type of constitutional governance will be the middle way for ensuring the effective protection of fundamental rights in the social media environment.
Dempsey Willis’ article looks at democratic processes and explores the effectiveness of international social media (Twitter) campaigns and the associated phenomenon of Advocacy 2.0. In her analysis, the author critiques current thought on social media as an advocacy tool using evidence from two Iranian campaigns, namely, #stopstoning and #letwomengotostadium. The author finds evidence that these Twitter campaigns paradoxically have led to a regression of women's rights in some areas. In particular, Dempsey Willis finds that social media may lead to amplified government backlash, lack of campaign persistence and foreign overshadowing of domestic voices, which contribute to the problematisation of the role of transnational advocacy networks in domestic human rights change. The author interestingly argues that weaknesses and critiques of the models identified in non-social media campaigns are amplified when mapped onto social media, which by definition is organic, fast and open to distortion and misinterpretation. More specifically, she finds that the #stopstoning campaign was quite significantly foreign-driven when compared to #letwomengotostadium. Also, there was a much stronger government backlash to the ‘foreign meddling’ in the #stopstoning campaign, indicating that domestically driven campaigns may be more likely to sway governments.
Bosher and Yeşiloğlu examine the inherent tension between copyright's inherent rationale of restricting copying and the general ethos of social media which is to promote the sharing of information. They use Instagram as an illustrative case study to lay bare the different strands of this conflict and how one might go about to solve it. In their analysis, the authors look at how copyright is infringed on the social network, and the user agreement and licencing of copyright material on Instagram. The authors find that the disparity between the principles of copyright and social media lead to confusion and vulnerability of users, so they go on to suggest that Instagram should better inform its users of the implications of sharing third-party content as well as the terms of its user agreement. They propose some concrete steps for doing this, such as implementing a copyright strategy, which includes a notice and takedown system as well as investing in producing educational content for users.
Romero-Moreno's contribution looks at copyright as well but focuses instead on the compatibility of notice-and-staydown approaches with the rights of social networks and their users to a fair trial, privacy and freedom of expression under Articles 6, 8 and 10 of the European Convention on Human Rights (ECHR). Notice-and-staydown is essentially a copyright protection strategy that relies on automated content recognition and filtering technology to ensure that content that is taken down does not reappear anymore. The author's analysis draws on Article 13 of the European Commission's proposal for a Directive on Copyright in the Digital Single Market, the case-law of the Strasbourg and Luxembourg Courts and academic literature. Romero-Moreno argues that the adoption of content recognition and filtering technology poses threats to fundamental and human rights of both social network platforms and their users, in particular, those set out in Articles 6, 8 and 10 of the Convention. He concludes that unless the amendments suggested in his contribution are incorporated into the Copyright Directive, Article 13 of the proposal would effectively violate the rights of social network platforms and users.
The last contribution is by Schroers, who takes a closer look at the growing adoption of, and reliance on, social network logins. These tools are increasingly used to authenticate internet users in the context of many different online services. The author analyses whether social network logins could be used for e-government services, in light of the eIDAS Regulation and the work of other authors. Even if quite convenient, such tools raise many issues, such as (involuntary) termination of accounts, the new right to data portability and further cultivating lock-in features inherent to social networks and potential lock-out from other services. As a result, Schroers concludes, social logins in their current form should not be used for e-government access. She maintains that these could be used only for systems where it is not relevant whether the user is reliably identified and when other ways to access the service are available. The author also offers some solutions as to how Facebook (as the biggest social network) could obtain freely given consent and avoid a user lock-in. The article concludes that, given Facebook’ user base, the use of Facebook logins in accessing other services need to be considered from the perspective of competition as well as data protection legislation.
We hope that you will enjoy reading this diverse set of insightful articles on contemporary legal challenges in the realm of social media. The guest editors would like to thank the chief editor of the journal for his support and input during the editing process.