Study of fundamental rights limitations for online enforcement through self-regulation

Abstract

The use of self-regulatory or privatized enforcement measures in the online environment can give rise to various legal issues that affect the fundamental rights of internet users.First, privatized enforcement by internet services, without state involvement, can interfere with the effective exercise of fundamental rights by internet users.Such interference may, on occasion, be disproportionate, but there are legal complexities involved in determining the precise circumstances in which this is the case.This is because, for instance, the private entities can themselves claim protection under the fundamental rights framework (e.g. the protection of property and the freedom to conduct business).Second, the role of public authorities in the development of self-regulation in view of certain public policy objectives can become problematic, but has to be carefully assessed.The fundamental rights framework puts limitations on government regulation that interferes with fundamental rights.Essentially, such limitations involve the (negative) obligation for States not to interfere with fundamental rights.Interferences have to be prescribed by law, pursue a legitimate aim and be necessary in a democratic society.At the same time, however, States are also under the (positive) obligation to take active measures in order to ensure the effective exercise of fundamental rights.In other words, States must do more than simply refrain from interference.These positive obligations are of specific interest in the context of private ordering impact on fundamental rights, but tend to be abstract and hard to operationalize in specific legal constellations. This study's central research question is: What legal limitations follow from the fundamental rights framework for self-regulation and privatized enforcement online?It examines the circumstances in which State responsibility can be engaged as a result of selfregulation or privatized enforcement online.Part I of the study provides an overview and analysis of the relevant elements in the European and international fundamental rights framework that place limitations on privatized enforcement.Part II gives an assessment of specific instances of self-regulation or other instances of privatized enforcement in light of these elements.Part II considers the extent to which certain blocking and filtering practices currently used for privatized enforcement online are compatible with fundamental rights, most notably the right to freedom of expression, freedom of information, the right to access information, the right to privacy, data protection rights, the right to a fair trial, the right to an effective legal remedy, freedom to conduct business and freedom to provide services.Three case studies are used for this examination:1. Non-judicial notice-and-takedown procedures of social networking services; 2. Voluntary use of content-ID tools by hosting providers to avoid liability for illegal content, and 3. Voluntary scanning of private data by online service providers and the subsequent reporting of users to law enforcement agencies.