In the 21st century most public debates are conducted online and major platforms and businesses have user numbers and economic power – as well as the power to shape public opinion – unprecedented in media history. In his study Koltay András examines the ways in which these platforms, acting as gatekeepers, influence public discourse and what this might mean for such constitutionally protected rights as the right to free speech.
While we tend to focus on the content conveyed by media, media itself slowly and unnoticeably transforms our social norms, values, rules of coexistence and the way we manage our affairs. Online communications impact the public sphere through the content but also the method, structure and architecture of online communications. Everyday life has been changed by new online services (such as social media and search engines) and this also has an impact on public discourse.
Services that produce and transmit content, such as internet service providers, search engines, video-sharing and social media platforms act as gatekeepers. Their increased influence on the operation of the public sphere creates worrying phenomena: they can render content unavailable to the public, push content or raise obstacles to accessing it. They challenge the existing legal framework of data protection, privacy, defamation and hate speech as they become the dominant actors in the public sphere.
While governments try to force platform providers to remove certain content, platform providers are trusted to judge the legal status of the content leading to an “outsourcing” of the courts’ monopoly over the application of laws. Online platform providers police and regulate content: they enforce a pseudo-legal system with its own code, case law, sanctions – all within a privately owned virtual space. Consequently nation states are helplessly watching the erosion of their legal system and the fall of their constitutional guarantees protecting the public sphere, all the while they are delegating important chunks of their law enforcement tasks to tech giants.
This leads to a paradigm shift in the constitutional protection of speech and the role of the government to maintain and preserve the democratic public sphere. New ways and means of restricting freedom of speech emerge, either through the application of traditional legal doctrines in new circumstances or through online gatekeepers restricting users’ freedom of speech and right to access to information.
However, at the end of the day, this problem isn’t entirely new: in the 1960s Jürgen Habermas has warned against the end of the public sphere, as public discourse and debate on public affairs was prevented by the commercialisation and consumerism of the mass media. Still, it is doubtful that the limitation of free speech by private actors can be tackled within the old framework of fundamental rights. As the meaning of regulation becomes elastic and both governments regulate gatekeepers and their users and gatekeepers act like regulators with their policies and guidelines, our legal system needs to come to terms with the duality of regulation.
Author: András Koltay
https://ajtk.hu/en/research/in-focus/online-2020-1-in-focus-tech-companies-the-new-sovereigns