Protecting civil rights in digital capitalism

Regulating Facebook, Twitter & Co. is not about cutting freedom. It’s about saving it. For the benefit of all, including the companies themselves.

There’s a growing feeling that something is going deeply wrong with digital capitalism. When I was a kid, one of my classmates wrote something plain stupid and illegal on a public school wall. He wasn’t a bad kid. It was just one of these things boys do when they’re young and feel as if they own the world, and it came out in a moment of pure boyish (dumb) courage. There was a lot of fuss: The police came, his mother came around, crying, and the principal of the school had a long talk with him. It taught him, but also us as his close friends, a good lesson. The memory stuck with me. It made me realize how bad it is to write something stupid in public, and how hard the consequences can be, even if you’re just 12 years old. I’m sure many who grew up in the 80s and 90s have such stories in their mind.

And today? We live in a world that anyone can write something stupid on public walls, and the whole world can come by and read it or watch the action – and it feels as if there are no consequences. The walls are not school or mall walls anymore. The walls of today are Facebook, Twitter, Instagram, or any other major social media platform. It’s just: There’s no police coming by to clean that wall. No principal is sitting down and talking with you. The worst consequence, so it seems, is that you might leave the wall for a little while, until you create a new email in 5 minutes to be back in. And the victim has to endure the comment and others, again and again – no wall cleaning. No public authority is putting things back in order.

That’s Facebook, Twitter, and Instagram. They want people to write on the wall; it’s their business model. And there’s no public paid and sworn in principal around to keep everyone in order and thinking about the victim’s rights.

Christchurch is shooting live on Facebook. A fake video of Pelosi spread on the same platform. Hate and racial comments on social media by a minority after the murder of a German politician who spoke friendly about refugees. We all notice, voluntarily and involuntarily, a lot of content on social media platforms that just don’t feel right. It’s not the majority, but it’s also not a minority someone stumbles upon by accident. Some of this content is plain criminal, motivating viewers and readers to commit crimes themselves. Other content is racial or degrading towards minorities or individuals. And it’s all free, widespread, available 24/7.

Should we accept this all and tell us, if you want to have the freedom of the internet, free speech, and global platforms, then live with the consequences?

No, we should not. And those of us believing in the strength of our democratic constitutions and thus the role of the State in our society should not. Our democratic system demands a different approach.

A brief approach to civil rights in a constitutional state

Thomas Hobbes, who fought for the theory of absolutism in the 17th century, underlined that the states main (or only?) task is to secure the life of its citizens against internal and external foes. The modern political system had initially been developed as a power and peace unit, with one monopoly of power of the state and with the absolute peace obligation of its citizens. The state met the mutual fear of violence, civil war, or external attacks; it satisfied the basic need for security of people against the force of fellow human beings and external influences. The modern constitutional state is founded on an essential development of these security purposes of the state. Today, our civil rights represent a wall of freedom against the state primarily, making sure the states protective power for its citizen does not turn into oppression (as the absolute state did back a few hundred years ago). This is a fundamental idea everyone would agree on: We want the police to come when we are in need (protection element), we do not want it to hang around when we have a barbecue with our friends to know what we’re talking about (defensive element of our civil rights).

There are many reasons why the modern democratic state has not found proper regulation for the larger, globally acting media companies. I also think that they can be lead back to those basic principles laid down above. First of all, Facebook, Twitter, Instagram, etc. are not external foes in the eyes of a democratic state (not talking about China here), as they are private companies. Private companies are empowered by democratic states to do their business, as long as they don’t pursue the interests of a different state, which would them make them easily compared to an external foe. Just have a look at the discussion of Huawei to understand where this argument is coming from.

Furthermore, a company like Facebook or Twitter is acting on a global scale, without it needing an actual residence in a state. It is hard for national legislation to address a company that is not based in that country. The power of the state theoretically ends at its borders.

The second reason for hesitation for regulation comes with the principle of freedom laid down above. Historically, this freedom is the freedom of a private individual against the state. The German constitution, for example, states in Art. one par. three that the civil rights laid down in it are binding for all public institutions. It’s a classic approach: We defend our civil liberties against the state and its institutions, against its monopoly of violence as explained earlier. Facebook is not a public institution; therefore it might seem as the protection of civil rights might not be the main task of our governments.

However, this is, of course, not true.

The state must protect our civil rights

In digital capitalism, new threats to our civil rights arise. Unlike 30 years back, they might not come from our state and its institutions. They might come from other countries, e.g., fake news created by the institutions of other nations. Even more so, they might come from private companies or organizations or other individuals. Fake news and insults might stress our pride or even our financial, mental and physical well-being on social media platforms, our religious beliefs and our heritage get badmouthed by racism in comments, our freedom of speech endangered by algorithms, e.g., by twitter blocking us without informing us.

Must the state act to protect our civil rights against other states, against companies and other individuals? The basic answer is simple: Yes.

The rule of law must apply to all aspects of our life, including the content offered and distributed on social media platforms.

Just because Facebook is the product of a market economy of a democratic state, it does not mean that this reality of ongoing threats to our civil liberties is accepted by the constitution. On the contrary: Do not confuse the idea of a “democratic state” with the concept of “constitutional state.” The democratic state might be a non-constitutional state and vice versa. Only when both work well, there’s a guarantee for our freedom to be secured. The rule of law must apply to all aspects of our life, including the content offered and distributed on social media platforms. The rule of law has a dual function as a guarantor of freedom on the one hand and security in the other, narrower and most elemental sense. The security purpose of the state, with its monopoly of force, must guarantee peace and security, but not against the liberal, state-limiting and freedom-promoting use of the rule of law.

To secure this rule of law and therefore to secure our civil rights, the state is obligated to defend our civil right also in a context that is not state-driven, meaning in the context of social media and other internet platforms that endanger them. Here’s where the two layers of freedom of the individual and its right to be protected come into play. The first layer is the classic line of defense against the state. The second function of civil liberties is that they are elementary principles of our society, so to speak the common ground on that we all live on together, regardless of gender, heritage, age, sexual orientation, religion and so on. Our civil rights express a supreme power, our common good on that we all can agree on despite our political and economic interests. Therefore the state is forced to protect this common good against severe endangerment. If Facebook, Twitter, and Instagram create such threats, the state must act against them, to protect the common ground of civil liberties our societies are standing on.

The regulation does not endanger freedom – it must contain it

Understanding this, it becomes clear why regulation of social media platforms such as Facebook, Twitter, Instagram, and similar is not an endangerment to the freedom of the internet. It is on the contrary necessary to save the freedom of the internet.

If we decide to leave the treatment of civil rights on the internet to globally acting corporate firms or NGO, which are not subject to the defense power of the civil liberties against the state, we decide to give up our civil rights to the power of the stronger user. If we let Facebook define which posts it erases, if we let Twitter determine what user is blocked and which is only hidden, we’re harming our constitutional principles. The freedom of our civil rights, which always also imply the protection of the minority and the individual against the majority or stronger individuals, will be let go. If we all agree on that the civil rights are a common good and that the state must protect this common good even in spheres that are not state driven, we can agree on that a regulation of Facebook, Twitter & Co. is necessary for the common good, to protect freedom and not endanger it.

The author is a lawyer in Germany, focusing on the public sector.

Also, and this case has not been argued yet, even Facebook, Twitter & Co. might be highly interested in such a regulation – and not only the kind of interest that is driven by sheer marketing and PR interests. The current development hints for me at either breaking up these companies or endangering their business models by hard regulation. While I know that authors like Michael K. Spencer (who I personally very much appreciate) would support this approach, I can’t follow this idea. We must accept that Facebook & Co., its owners, its employees, and its users also have civil rights to be protected. Our constitutions do not work on the idea of “the winner takes it all,” at least not if they are democratic-liberal constitutions.

The idea is balance. Civil rights that get into a conflict must be balanced by legislation, sometimes highlighting the rights of one group or individual, sometimes of the other, but always depending on the severe (rational) reasons for the overweight of one over the other and never without letting one of them entirely down. In the end (at least in an ideal world), we have a balance driven by legislation and governmental institutions, working on the goal that the civil rights of each individual and the groups can exist in the best way without harming others. The giant tech companies must be open for such a balance, accepting a reasonable regulation and even helping the parliaments and governments working on it in their best interest. If they don’t, if they want to run a platform that is not driven by the idea of such a balance, they will pay a high price at the end that goes far beyond simple privacy measures and financial consequences. If they don’t respect the rules on their public walls, the principal might shut the walls down, or the police might take them in. The rule of law might be slow in adapting to the digital world. But the rule of law has been there for centuries and is something the majority of individuals can agree on in democratic states. They consider it a must for a peaceful existence.

Who, on the other hand, would consider Facebook, Twitter or Instagram a must for a peaceful existence?

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