Beyond soft regulation – Sanctions on digital platforms
Dr Enguerrand Marique | enguerrand.marique@uclouvain.beDr Yseult Marique| ymarique@essex.ac.uk
This blog post outlines the main arguments of the authors’ next piece “Sanctions on digital platforms – beyond the public/private divide”, to be published in the December 2019 issue of the Cambridge International Law Journal. It seeks to illustrate how digital platforms can set up “hard” mechanisms to regulate users’ behaviours and thus go beyond the “soft” regulation through design of the platform.
“Hard” mechanisms mean that digital platforms unilaterally exercise their power to withdraw or curtail users’ access and/or actions on the platform to remedy a violation of a public policy or a contract. For instance, if an Uber driver commits an offence, Uber has a duty to investigate the issue and would have to take necessary measures to prevent the driver to reoffend – maybe blocking his account. Digital platforms impose these kinds of sanction to police undesirable behaviour.
These hard law techniques or sanctions need further attention: they often are the result of private decisions (I.) and where their legitimacy is derived from is often unclear (II.). This post therefore argues that sanctions need to be scrutinized beyond the digital platforms (III.).
I. Background: sanctions and the public-private divide
Platform operators enjoy an expansive power of setting norms. They set up their “house rules” (through contracts) and define the reach of their policies concerning interactions in the digital space. This translates into concrete actions taken to ensure that these house rules and policies are abided by, including sanctions taken against users infringing these rules and policies. For instance, a platform will block an account temporarily or permanently.
Platform operators tend to exercise these powers themselves or divide it across different entities through unclear arrangements, affecting individual freedoms.For instance, Uber customers and drivers are bound by contracts unilaterally defined by the platform: the contractual performance is monitored, the disputes are addressed and sanctions set following these contracts, with little room for further individual freedom.
All in all, sanctions can be broken down into three different categories: sanctions with ‘official’ sources (international and domestic law), sanctions finding their sources in digital platforms’ own normative production, and sanctions used in dispute resolution. This sanctioning process on platforms transforms the public-private divide.
Public authorities have the monopoly of enforcing rules and monitoring compliance through a wide range of sanctions. In this capacity, they do not need to obtain the consent of the sanctioned person. Digital platforms have a similar monopoly, as private entities: they enjoy (some) freedom of trade and entrepreneurship and have some freedom to organise this trade, but do not have power to compel third parties without their consent.
Yet, public bodies and free private actors act jointly to minister sanctions in the digital space. This transforms the sanctioning process into a “hybrid” process and raises questions about the sources in which sanctions find their legitimacy.
II. Legitimacy issues
This post attempts to illustrate some of the legitimacy issues relating to the sanctions used by platform operators when they rely on their unilateral powers to address a problematic behaviour, often without clear consent from the users.
Legitimacy relates to different aspects of sanctioning.Here, we understand legitimacy as a level of consensus in the principle and modalities of social regulation within a specific field. Legitimacy issues can arise especially in two areas: the setting of sanctions as a matter of principle (A.) and the implementation of sanctions in specific cases (B.).
A. Norm-setting and sanctions
Facebook failed to tackle hate speech and disinformation, which attracted criticism by private and public actors. There is thus a clear lag between what law (and what official representatives have expressed as being the general will) and what Facebook imposes as its own “policy” or “moral” choices for its platforms social life. Where is the consent of users to these choices?
The answer is not straightforward. Indeed, digital platforms implement public policy choices in their contractual ordering choices. However, while agreeing to the contractual terms, users may also agree to the underpinning policy choices in addition to a certain economic transaction.
When digital platforms choices result from self-regulation, a major question lies with the scope of interests represented by the included stakeholders; some sectorial interests risk overrepresentation. Thus, the holders of non-represented interests cannot be assumed to have agreed with the policy choices made through self-regulation. Other choices relating to (un)desirable behaviours are made through interactions between officials and platform operators. In these cases, the source becomes difficult to track down. Does it come from a legitimate regulatory power? Or from the freedom to trade enjoyed by digital platforms?
Platform operators organize individuals’ lives and impose upon them terms which are neither negotiated nor to which individuals are party. Firstly, Terms of Services (“ToS”) and privacy policies contractually organize the relationship between a platform operator and users without regard to third parties. Secondly, community rules (i.e. terms in which users agree to respect other users) are sometimes referred to as a “social contract” that users agree to comply with when they interact on a platform, although this contract is not negotiated with users. Community rules would be agreed upon to the benefit of the general interest only. In practice, the interest represented in digital platforms community rules often is the one pursued by the drafting party (the platform operator), rather than that of users. Again, the overall legitimacy of the community rules is weak.
B. Enforcing sanctions
Sanctions enforced on platforms find their trigger in a direct breach of their norms, in the violation of official laws or to comply with judicial decisions. In that case, the platform organises systems to pass on the sanction for that violation to users.
On the one hand, the relationships between the user and its State may be limited, raising legitimacy issues regarding the extraterritorial application of a lawas he may not be aware that his behaviour breaches official obligations. In the complex digital world, it is not necessarily straightforward for users to anticipate which national law will be applicable for which interaction. This leads into the confusing transnational sanctions in the digital space, where a range of different official norms may have to be complied with across several jurisdictions. This triggers questions relating to legal certainty and predictability in digital transactions. As private actors straddle State boundaries, sanctions are mediated through techniques challenging the traditional public-private boundaries.
On the other hand, when ToS solely apply (in the absence of legislation), sanctions are often imposed without notice or possible appeal, thus causing limitations to the right of due process.This situation is due to the wide discretion that platform operators enjoy. It raises a legitimacy question about the appropriate means to ensure that platform operators do not encroach on individual freedom. This issue calls for the attention of States to ensure an external control over digital decision-making practices. However, States can have different understandings of the scope of these freedoms. No international consensus currently exists. Inaction in the face of the practice of digital sanctions ensures, leaving room for individual freedoms to be encroached unduly.
III. Alternatives beyond digital platforms?
Sanctions on digital platforms call for the attention of international law. They raise issues when it comes to possible conflicts in use of sovereign powers outside their jurisdictions. Platform operators may also have to organize specific procedures when they impose sanctions to police behaviours spread across jurisdictions.
International law could develop an international instrument (such as a convention) building on general shared principles of administrative law (e.g. in the line of global administrative law). It could also update conflict of laws rules for the digital economy. However, none of these fully satisfy the specific case of sanctions. Indeed, in the present development, it seems hard to reach an agreement between States on a binding solution. General principles of administrative law remain vague and depend largely on their national interpretation. Conflicts of law create sovereignty clashes between States where platforms are incorporated, servers hosted and user communities located.
Alternatively, upcoming international law instruments could include stakeholders and professionals in the definition of rules, enforcement and litigation pertaining to sanctions imposed in the digital space. These stakeholders and professionals form the backbones of epistemic communities and expertise in digital rule-making and sanctions, and would bring the experience necessary to inject some level of legitimacy in the solutions agreed upon.
Another option builds on developing more systematically and strategically hybrid public-private solutions at the international level to address issues arising from sanctions. For instance, reviews of sanctions by peers, with disciplinary council protection, could promote participation and inclusion in digital platforms. Additionally, reputation and feedback-based systems could produce an aggregate sanction regime, as users with low ratings lose opportunities for transactions. Blending technical solutions would be preferred over a one-size-fits-all solution, depending on the technical characteristics of platforms, the intensity of their economic and social power and the vulnerability of users. A duty of care would need to be imposed on platforms for developing their plan reviewing the use and imposition of sanction, plan that could be externally reviewed either by peers or by some hybrid transnational entity supervising the sanctioning powers.
Regardless of the detailed solutions developed to keep the sanctioning power of digital platforms in check and make it as legitimate as possible, a future international framework assessing how platform operators set norms and ensure compliance through sanctions needs to start from individual users to see how best to protect their freedom. These individual users are the ones suffering from the economic, social and reputational consequences of sanctions in both the digital and physical world.
Enguerrand Marique is a PhD researcher at the CRIDES (UCLouvain School of Law). His doctoral research focuses on the legal tools to build trust in the digital platforms economy. His project focuses on an analysis of the legal protections in the management of identification and e-reputation and big data under both private and public law scholarship. Enguerrand has recently guest edited a special issue of the Revue Internationale de Droit Economiqueon the regulation of digital platforms. His main interests pertain to taxation, intellectual property as well as the regulation of algorithms, including in relation with robots. He holds a law degree from the UCLouvain as well from the University of California at Davis.
Yseult Marique is Senior Lecturer at the University of Essex (UK) and research associate at the FÖV Speyer (Germany). She is the author of Public private partnerships and the law and co-editor of Access to Justice: Beyong the Policies and Politics of Austerity. Her main research interests focus on the rule of law and its practical implementation in relation to issues of access to limited resources in Western societies, and more generally on administration enforcement and ethics of care in pluralistic Western societies both today and in the past. She holds a law degree from the Université libre de Bruxelles, a postgraduate degree in law from the Vrije Universiteit Brussels and a PhD from Cambridge University.