In recent years, on social networks, we are witnessing serious attacks on free information. Authoritarian attacks that do not conform to the usual norms. The most recent episodes have even seen the cancellation of posts and tweets by YouTube, Facebook and Twitter, against political representatives elected by the people and even the President of the USA. How is this possible? As always, it depends on various legal and regulatory aspects that affect the scene without forgetting the socio-political and economic reasons and the power relations to which they are subject.
The first thing that is not reflected enough on is that a “digital territory”, the Internet network that extends everywhere, has been superimposed on individual physical territories, intended as a geographical perimeter within which a system of laws is in force. This took place in the almost absence of a reaction from the various national authorities which, with immense lightness, wanted / had to consider the Internet and the giants of the web as "bearers of good innovation".
By "digital territory" (for example, Google, Facebook, YouTube, Amazon, eBay, but also Air B&B, Zoom, etc.) we mean those areas and "fields of influence" frequented by members of a community and in which activities take place thanks to tools such as PCs, tablets, smartphones, etc. Indicatively: search engine consultations, uploading and downloading of content, sharing, streaming, games or even the sale of goods and services, surveys, data collection, etc.
These "territories", frequented by the active members of their "communities", have given themselves "internal rules" called "conditions of use" and this has been done taking into account the "usual rules" and establishing the relationship between the manager and users mostly on new roles, which are turning out to be "hybrid and ambiguous". Among these is the one foreseen in 1996, when the United States Congress approved, within the Communications Decency Act, Section 230, defined by some as “the 26 words that founded the Internet”. That is: "No provider and no user of Internet services can be held responsible, as publisher or author, for any information provided by third parties". This sentence relieves social networks of responsibility for the contents that are published on their platforms. In recent years, however, fake news, attacks, child pornography and incitement to violence have forced social media to intervene and so the "moderation" of content has become a fundamental part of their activities. Teams of fact checkers and reporting tools were born that today are configured as real censorship groups, sometimes even preventive.
Another ambiguous role granted to social media is that which essentially allows (among other things) the community manager to appropriate the contents and stuff them with advertising, diverting (not always) a minimum amount of proceeds for the creator who owns the rights. originals. We add to these roles that of “occult data collector and dealer” and that's it.
When a "user" signs a "contract" with a social media, an unprecedented and, as already mentioned, very ambiguous relationship is established. Regardless of what some jurists say, who argue that the contract must take into account the laws of the country in which the user operates, in reality the user enters and operates in a different territory and unconditionally "accepts" the terms and conditions of 'use of the supplier - manager, even if different from those of their own legal tradition.
This "going in", along with acceptance, obviously happens in the physical world. The user keeps his feet, his head, his body - whether he enters from a PC or a smartphone - on the physical territory but ... little consciously, almost by magic, he is projected into the digital territory. He dematerializes and becomes more a "member of the community" than a citizen of a defined nationality.
It is as if passing through a Stargate, as if passing through Alice's looking glass. The user does not realize it, but from that moment his "vital manifestations", both active and passive (upload - download), are "digitized", or translated into endless numerical sequences of bits and bytes.
The representation of himself, his digital avatar begins, therefore, to act and move beyond the physical territory: within the digital territory. For example, its image, in compliance with the fair use it becomes the property of both the managers and each member of the community; it can be modified and projected and seen at endless distances in times that tend to zero; or its individual actions can be replicated and communicated to a very high number of online referrals. Among other things, the community manager creates an archive in which he keeps the user's history and actions, the mentions made by others, the successes but also the sentences, the true or false accusations ... and often refuses to delete the traces, keeping the user hostage to his own past, denying the right to be forgotten. Finally, thanks to other digital vehicles, such as credit cards and (one for all) PayPal, the user can carry out commercial actions: even significant payments and collections.
What are the “little known” characteristics of this digital territory and extraneous to the legal traditions of the physical territories?
- It is another dimension. A non-material place, but a numerical one. A basically infinite cubature, in which the founding elements of the dimensions: space, time, speed, gravity are different from those of the physical territory. In the so-called cyberspace, in fact, space and speed tend to infinity, access, reproduction, storage and availability times tend to zero and gravity, understood as the attraction and repulsion of digital masses, is also changing at great speed and can reduce to zero with a simple keyboard click made by those who have the right or even by anonymous hackers.
Furthermore, in the “digital territory”, the concepts of freedom and control that inspire the usual rules are inextricably overlapped. The more "visible" one is, the more one expresses oneself freely, the more consents are gathered or dissensions organized ... the more one is exposed to control by remote, anonymous and often occult forces. So much so that your "presence", your digital avatar can be reset with a click without any warning and without taking into account the negative consequences for the user.
- It is a "territory" in which the rules are more subject to uncertainty and border on interpretability, changing rights, duties and the pursuit of interests. For example, in the case of crimes committed in the digital territory, if these crimes are attributable to the laws of the physical territory (murder, pedophilia, scams, defamation, etc.) the rules of the physical territory will apply and the national judiciary will be able to intervene.
But - be careful! - if some "abuses and crimes" are instead committed by the managers, but are justified by them as a response to infringements of the community rules, the national judiciary is struggling or will not be able to intervene.
- Because the contract that binds the operator to the user is a very particular contract between private individuals. A contract that had never been seen before. A contract not registered by any authority, not countersigned, signed remotely, with a simple click on an active box where it says "I agree" or "I accept", in the absence of human intermediaries, between the decentralized office of a multinational and the end user (individual or company name that is).
- The contract may provide that the jurisdiction is the place where the multinational has elected its headquarters (in Europe in the cases of YouTube and Facebook it is Dublin). Therefore the defense of the user must be organized in that place with significantly higher costs for the user.
- The multinational manager inserts an absurd clause in the contract but which comes into force, ie it reserves the right to change the rules governing the agreement at will without giving the user notice.
- The whole contract is in force in the light of typical interpretations of customary or comparative law but is not regulated by an international treaty.
- The multinational, in the forums responsible for the debate on the rules, enjoys the support of powerful lobbyists who influence governments and parliaments and maintain the relationship between manager and user in a precarious and constant "deregulation".
Obviously, all this generates harmful effects on users.
First of all, confusion and frustration. But those feelings are fueled by the managers because this puts them in a dominant position. A position very similar to that of the dominus towards serfs during feudalism. the dominus can do what he wants, the user can only accept or leave.
The big problem arises when the user can no longer simply “leave”, because he has invested time, work, money and creativity and has fueled legitimate expectations towards the community and its halo effect in material sociality. Leaving would mean "rebuilding elsewhere", anyway a digital elsewhere, all that he has built in the place from which he is exiled.
This is how the user becomes a hostage who lives a bivalent situation: he would like to claim his rights and defend his interests, but he fears being expelled.
There are undoubtedly other "digital territories" in which to relocate, but they appear to be peripheral and much less found and frequented than the large social networks which therefore, according to some analysts, can be defined as "monopolies" in fact.
Now let's look at other roles in detail.
What (for simplicity) we have so far called "user" in reality takes on variable roles as the active or passive actions performed by him in the digital territory vary.
It can be a simple "user" of services (passive user); content producer and creator (active user or prosumer); consumer-buyer of goods and services; participant innovator of the services used by him and / or by others; advertiser; small authorized business manager; more or less aware data provider; donation collector; promoter of petitions, etc.
As the different roles vary, which sometimes can also be assumed simultaneously, the rights and duties vary and the reference standards vary (when there are any). For example, in the case of unwitting consumers or suppliers of personal data, these may refer to partly transnational codes and regulations such as those of the EU, which are not recognized as global norms. While in the case of prosumers, the rules range ambiguously from those applicable to publishers-producers to those applicable to end users.
Even what we have so far called "multinational manager" can take on different roles simultaneously or distinctly: service provider, publisher disguised as guarantor and gendarme of the community, seller of goods and services, "paradependent" employer, hidden collector or manifest of data personal, to the point of becoming an uncontested censor and arbitrator of true or false.
The managers have been called on several times to clarify their role, recently also in front of the antitrust commission of the US Congress, but they have not wanted to do so. Because? Because if they clearly assumed the role of publishers they would be responsible to the national judiciary for all published content and would also have to pay taxes on the earnings accrued in each territory. They therefore prefer to take on the role of techno-providers that exempts them from liability and in any case behave like publishers, therefore also reserving the right to close an account or not, when they deem it appropriate. This “hybrid” position has proved to be very advantageous for them and the tendency is to maintain it at any cost.
From July 2020, the hearings of the Antitrust Commissions have followed, leading to the production of impressive reports. There are many calls for an important change in the role of social media (and Big Tech in general) but we do not know if the Biden administration will want to confirm the tough attitude of the Trump administration.
In summary: this tangle of roles, rights and norms is due to:
- the factual overlap, but not recognized or distinct, between physical and digital territories;
- to the projection of one's physical and mental body in digital space-time: another dimension that provides for the coexistence and superimposition of the different roles and provides for both anonymity and control and even the uncertainty of true-false;
- the absence of international treaties. There is only a discussion table, called the Internet Governance Forum, where the 3 major "stakeholders" governments, companies and civil society meet for the sole purpose of "maintaining dialogue";
- the presence of ambiguous US regulations written to encourage the growth of digital giants;
- to the excessive feudal power of a subject (the manager) with respect to the single individual or even to the legal personality of the user.
In this scene, governments, national magistracies and traditional professional figures called to defend rights are very, very confused. Because?
- the magistrates have not yet studied the question in depth;
- lobbyists have made sure that the local competent authorities (governments, antitrust, AGCOM, etc.) take a step back in the formulation of rules;
- the lawyers (not all but many) lead their clients in reckless defense actions that only rarely have any effect and therefore this dissuades from appealing to the judiciary;
- important civil society subjects, such as trade unions and consumer associations, have not yet organized themselves to represent the interests of social network users.