Two weeks ago, the Secretariat of the United Nations’ Internet Governance Forum (IGF) approved the creation of the Dynamic Coalition on Platform Responsibility (DC PR). This new component of the IGF will provide a discussion arena aimed at the analysis of the relations between internationally recognised Human Rights and online platforms’ Terms of Service (ToS).
The ultimate goal of the DC PR will be to elaborate concrete solutions aimed at promoting responsibility in the adoption of ToS so as to ensure respect for platform users’ human rights. The proposed solutions, to be developed through an open and multi-stakeholder process, will complement initiatives such as the Council of Europe Guide to Human Rights for Internet Users, the OECD Guidelines for Multinational Enterprises, the UN Global Compact, the ISO 26000 Social Responsibility Standards, the UN Guiding Principles on Business and Human Rights and the European Union’s Sector Guidance to the implementation of those principles.
Specifically, the DC PR will aim at developing guidance for responsible conduct by online platforms through the formulation of model contract clauses able to protect the interests of both commercial and non-commercial internet users, in accordance with the existing framework of international law, including human rights law.
The need for a DC PR
Online platforms, such as social networks and other interactive online services, give rise to transnational “cyber-spaces” where individuals can gather and express their personalities imparting and receiving information and ideas. By reason of their transnational dimension as well as of their private nature, online platforms are regulated through contractual provisions, unilaterally established by the platforms’ providers and enshrined in the platforms’ ToS.
Hence it may be argued that, by regulating the use of information within a specific online platform, ToS undertake a normative function that may be compared to that of the “Law of the Land”. However, differently from the Law of the Land, the contractual provisions delineated in the ToS can be applied in several jurisdictions, thus affecting platform users in spite of their geographical location. Furthermore, the private decisions that may be taken by the platform provider in order to implement the ToS (e.g. removing content which is not compatible with the ToS provisions) are not subject to the constitutional guarantees that frame national jurisdictions.
In addition, it should be noted that the spectrum of rights and remedies that are granted to platform users through the ToS may be difficult to comprehend or even read in its entirety, and similar platforms may be regulated through very different provisions that might be unilaterally modified by platform providers.
For these reasons, it seems necessary to engage in a common multi-stakeholder effort aimed at producing model contractual provisions, which can be incorporated in ToS in order to provide intelligible and solid mechanisms to protect platform-users’ human rights and foster platform providers’ responsibility.
Such an effort appears necessary to equip platform users with common and easy-to-grasp tools to guarantee the full enjoyment of their human rights. From this perspective, the absence of binding international rules in this area despite the universal nature of human rights represents a real challenge, which can only be effectively overcome through a multistakeholder effort, taking place in accordance with the UN “Protect, Respect and Remedy” Framework (endorsed by the UN Human Rights Council together with the UN Guiding Principles on Business and Human Rights). Hence, the concept of “platform responsibility” aims to stimulate behaviour in line with the principles laid out by the UN Guiding Principles, focusing on the responsibility of private corporations to respect human rights and to grant an effective grievance mechanism.
The ability of users to recognize and reward this type of behaviour has the potential to generate a virtuous circle, whereby consumer demand drives the market towards human rights-compliant solutions. Accordingly, the utilisation of model contractual-provisions may prove instrumental to foster trust in online services for content production, use and dissemination, allowing platform-users to directly identify those platforms that ensure the respect of their rights in a responsible manner.
The establishment of the DC PR seems therefore necessary to nurture a multi-stakeholder endeavour aimed at the elaboration of the aforementioned model contractual-provisions.
An Action Plan
The establishment of the DC PR aims at fostering a cooperative multi-stakeholder effort in order to elaborate concrete and interoperable solutions to protect platform-users’ human rights. To that end, the involved stakeholders will interact via the DC PR mailing list in order to jointly delineate a set of model contractual-provisions, defined as Platform-User Protections (PUPs).
While the long-term objective of the DC is to produce several PUPs in order to ensure the protection of individuals’ rights in a range of contexts, the first exercise of the DC will be the definition of a set of PUPs focusing on the specific issue of content removal.
The aforementioned goal will be achieved through several steps:
a) An initial meeting, to be held at the 9th IGF, which will aim at elaborating a DC PR roadmap while taking stock of the existent initiatives that may be of interest for the purposes of the DC PR;
b) A consultation period aimed at identifying current best practices, e.g. recognising current contractual provisions/mechanisms utilised by platform providers for content removal and the related remedies to challenge the removal decision;
c) The elaboration of draft PUPs and the circulation of the different draft as Request for Comments on the DC PR mailing-list;
d) Finalisation of PUPs as soon as the “rough consensus” around the most appropriate wording will crystallise;
e) Definition of appropriate PUP labels (similar to those utilised to characterise the various Creative Commons Licenses) to be associated with each PUP. The utilisation of PUP labels is meant to be instrumental to enable platform providers to signal the inclusion of PUPs in their ToS and help Internet users to easily identify the platform-providers who are committed to securing the respect of human rights in a responsible manner.
In recent years, several initiatives have been taken to scrutinise and assess platforms’ ToS, particularly in the context of intermediary liability. For this reason, the first step of the DC PR will be to take stock of the existing initiatives and assess the potential of building upon prior work in this area for the purpose of putting the “Protect, Respect and Remedy” framework of the Guiding principles into practice.
Such stocktaking exercise will take place at the first meeting of the DC PR that will be open to all interested stakeholders. Attention will also be put into the mechanisms adopted by search engines for the implementation of the recent judgment of the Court of Justice of the European Union in the Google Spain case, which places these particular platforms in a central position to ensure the effective protection of individual rights.