The Rule of Law in Cyberspace

The so-called “digital democracy” has little to do with representative democracy or even with deliberative democracy, functioning rather, in liberal or libertarian logic, as a multipolar channel of free speech in pluralist societies, which develops without dependence on the filter media, predicting in the future, a growing impact on political action. The political use of social networks in cyberspace in democratic states can both oxygenate representative democracy, stimulating direct communication between politicians and citizens and improving public debate, as well as degrading its quality through hate speech, false news, and vexing messages. However, in the second case, network communications do not, by themselves, constitute a threat to the same democracy but rather a strain on its quality. Since cyberspace cannot be a “land without law”, surveillance of fake or extreme online discourse must be based on balanced rules that allow public and private entities to prevent and repress the incitement or practice of serious crimes but avoiding the use of direct or collateral censorship aimed at shaping a single thought pattern or an index of “cursed” political thoughts. In Europe, there is sometimes an exaggerated perception of virtual risks linked to communication in cyberspace, which means that in some countries, like Germany, the curbing of political debate operates through a “bureaucratic” private and collateral soft form of censorship imposed by public authorities on digital platforms, subsidizing the action of the courts, which constitutes a constitutionally problematic restriction on freedom of expression. In the United States, the platforms generated some sort of digital cartel banning or suspending, sometimes concertedly, citizens and social networks based on their deontological codes of behaviour without further control. In any case, in electoral periods, courts with electoral functions must have effective power to intervene, especially in the removal of messages that involve manifestly fake news with major social impact and also relevant manipulative communications in the elective process, namely those created artificially from abroad or that involve gross violation of citizen’s data protection rules.

This paper discusses how Digital Constitutionalism might inspire the judicial review of internet legislations, such as the Brazilian Marco Civil da Internet. It claims that adequate protection of fundamental rights requires Constitutional Courts to consider a new understanding of the horizontal effects of constitutional rights and the consequences of re-territorialization of the internet. This argument is built upon discussions on the online intermediaries’ civil liabilities and the cross-border jurisdictional battles for digital evidence.

The cultural perception of technological advances is increasingly being transferred to democratic and constitutional processes, creating an illusion that there is a correspondence between technological and political development. The gradual evolution of the techniques is something natural in our lives. It has been manifested in the digital field with the successive updating of equipment and computing programs, hardware and software, which generate a cultural reference of constant and uninterrupted progress. However, may democracy evolve in the same way as technology does? And if technology presumes specific advances from a technical point of view, do such advances necessarily imply constitutional and democratic progress? The reality is that although technological advances transform the economic and productive structure as well as the cultural models of societies, its technical valuation does not have to necessarily match with the valuation that we make of the political and constitutional reflex of that technological development. To determine the possibility of a digital democracy linked to the idea of direct democracy, the correspondence between direct democracy and constitutional democracy is previously assessed. Once the possibility of a full direct democracy has been ruled out, it is analysed whether the digital environment positively impacts political participation by making participation without mediators possible. It is concluded that, despite all the possibilities for improvement that digital democracy offers, the tension between representative democracy and digital democracy is not being resolved until now in favour of greater democratization but through a democratic involution that must be corrected in the future.

This paper is related to the impacts of new technologies on the Rule of Law, especially considering the new forms of mass media. In addition, it evaluates legislation recently approved by the National Congress on the subject.

This piece aims to address the relationship between freedom, democracy, and digital government. Moreover, it investigates how these concepts are related and how they can be used to foster human development.

In the past decades, governments in both developed and developing countries have made significant investments in the digitalization of public services. E-government and digital-government tools have the potential to deliver significant savings and optimize the delivery of public services. Nevertheless, even in developed countries, there are still citizens who do not have equal access to digital technology or are not competent users. Filing taxes or applying for social welfare benefits online are far from obvious tasks for many citizens worldwide. The digitization-by-default of public services is currently leaving many individuals behind. As new digital divides emerge, digital inequality is not only reproducing longstanding socioeconomic inequalities but also placing itself as a standalone source of exclusion. While there is abundant humanities literature on the digital divide and digital citizenship, recent legal scholarship has overlooked the legal implications of the unequal access and usage of digital government. This exploratory paper discusses the legal implications of current policies and principles of digital government for the digital exclusion of citizens. It argues that digital exclusion may amount to the unequal treatment of citizens, and discusses more inclusive approaches to digital government.

The formation of the public sphere is extremely dependent on the technologies available in society to produce and circulate social information. The formation of the public sphere has undergone several transformations as well as information technologies. The liberal public sphere, for example, was characterized by its emancipation from the centralist contours of the court and by the new impersonal structures guaranteed by the dynamics of large cities of the nineteenth century. With the rise of the mass media in the twentieth century, the public sphere began to have a more pluralistic group-driven contour no longer consisting essentially of individuals who were in public places for debates on general themes. A third stage, the current one, transformed the public sphere centered on groups into a new constellation generated by the algorithmic logic of social networks. The formation of new legal standards to deal with the negative effects of the new digital public sphere can no longer be guided by the previous standards and must focus in particular on fostering the self-organization of the technological sector concerned.

This paper analyzes the phenomenon of the spread of false information in cyberspace (fake news or disinformation). Starting from the contextualization and conceptualization of fake news, an examination of the legal models currently existing in the European Union, Germany, and the United States is undertaken to deal with the phenomenon. Then, a critical assessment of the Brazilian Superior Electoral Court cases is made when judging the alleged disclosure of fake news in the 2018 Brazilian presidential campaign. Finally, the work concludes with assessing of the compatibility of the different models of combating disinformation with the exercise of freedom of expression by users of cyberspace.

One of the main issues modern societies face nowadays is the proliferation of fake news, which can have a deeply negative impact on public opinion, especially when elections take place. On the other hand, the challenge of protecting freedom of expression in this chaotic online environment arises. Through the lens of the 2018 presidential elections in Brazil, the present article aims to address the role of the Brazilian Electoral Justice in such controversial but fundamental topics.

One of the major issues of contemporary democracies, in their relationship between need, law, or duty to inform and journalism in its various platforms, may be summarised in this sentence: many of us, in an increasing phenomenon, do not share a common basis of facts. And, as asserted in this paper, without facts commonly accepted, there cannot be serious debates over policies, nor is it possible to evaluate politicians that govern us. Accordingly, it is the democracy itself that is at stake. This phenomenon has nowadays much to do with the so-called fake news, a term internationally established to designate disinformation or forged news. To use the own words of the head of Criminal Police that we quote, “we are before a perfect match where, with a simple click, we may cause a large damage, have a target of millions of persons, a high number of victims and with an incomparable speed (…) it is a sort of criminality committed in the solitude, but where the virtual is capable of being materialised”. But the information world with a globalised internet is tremendously complex because the so-called traditional media no longer have the monopoly of information, and people increasingly seek information on social networks, where, contrarily to journalism, there are no deontological nor ethic rules. Consequently, this fact caused the crisis of many social media, in a global phenomenon, which results are not fully studied yet. Portugal did not escape from this scope, as it is analysed herein, having the 2019 legislative elections represented a “milestone” in this process. The Covid-19 pandemic globally increased this situation and gave rise to what the Secretary-General of the United Nations, António Guterres, called “pandemic misinformation”. There are no easy answers to face this problem, which is simultaneously a challenge that calls all of us—information consumers, journalists, voters, and elected persons. From a technological perspective, there are plenty of instruments to report fake news, but nothing replaces, for the consumer, the critical spirit, and, for journalists, the basic rules of the profession. After all, good journalism does not depend upon algorithms.

The use of social networks may increase the potential for risks and violations of fundamental rights. Still, it can also be seen as a platform for exercising of these rights, thus contributing to their implementation and promotion by the Government. This is so because the executive power is still bound to protect and promote fundamental rights, even if these are exercised through cyberspace. Through two examples of different fundamental rights—the right to freedom of expression and the right to assemble and the right to protest and to participate in demonstrations—I will try to understand in this text some of the risks and challenges that the phenomenon of the digitalization of rights poses for the exercise of democracy, as well as for the Public Administration of a democratic rule of law State.

This paper discusses some of the challenges presented to protecting of freedom of expression by the emergence of digital platforms and social networks. It is suggested that these challenges imply a rethinking of freedom of expression in the twenty-first century. To support this conclusion, we start by making some introductory remarks about freedom of expression. Afterwards, we address the dangers arising from the digital revolution and from the new “information society” to this freedom. We particularly address the new restricting techniques of freedom of expression, specifically, the curtailing of freedom of expression by on-line platforms and social networks, the use of “flood information” techniques, as well as the phenomenon of “fake news” and, lastly, on-line harassment. Given these dangers, we propose that it is up to the State, as the guardian of fundamental rights, to regulate this new digital reality, safeguarding freedom of expression.

In recent years, the subject of freedom of expression has been extended to two new phenomena: the web and hate speech. The former has to do with the extent (potentially infinite and uncontrolled) of freedom; the latter has to do with its limits and brings into play the fundamental principles of protection of the individual and respect for human dignity, as well as the principle of non-discrimination. The present essay addresses the controversial issue of the repression of hate speech by online platforms and the new role assigned to them, namely regulating users’ fundamental rights.

It has become usual to distinguish between a culture of dignity, with large expression in Europe, and a culture of freedom, dominant in the USA, as the two possible horizons to deal with hate speech issues. This differentiation, besides constituting an expedient that evades the increasing need for a strong affirmation of freedom of expression, is becoming largely irrelevant due to the development of a tendency for hate speech self-regulation by the private entities that own the platforms and infrastructures of social networks. Hate speech self-regulation tends to be shaped by an economic model and is potentially controlled by algorithms that escape democratic controls. Instead, the specific political value of freedom of expression should be highlighted as a more consistent basis in its confrontation with other constitutional rights and interests.

This paper approaches regulatory strategies against disinformation with two main goals: (i) exploring the policies recently implemented in different legal contexts to provide insight into both the risks they pose to free speech and their potential to address the rationales that motivated them, and (ii) to do so by bridging policy debates and recent social and communications studies findings on disinformation. An interdisciplinary theoretical framework informs both the paper’s scope (anchored on understandings of regulatory strategies and disinformation) and the analysis of the legitimate motivations for states to establish statutory regulation aiming at disinformation. Departing from this analysis, I suggest an organisation of recently implemented and proposed policies into three groups according to their regulatory target: content, data, and structure. Combining the analysis of these three types of policies with the theoretical framework, I will argue that, in the realm of statutory regulation, state action is better off targeted at data or structure, as aiming at content represents disproportional risks to freedom of expression. Furthermore, content-targeted regulation shows little potential to address the structural transformations on the public sphere of communications that, among other factors, influence current production practices and disinformation spread.

The development of the Internet and the creation of social networks has given rise to a new kind of legal liability, where such intermediaries would, as a rule, be excluded from it. However, social networks have evolved to a status far different from the first internet service providers, site hosts, or search engines. Their activities have cast many doubts and problems over the traditional exclusion of liability. It is time to ponder a new and adequate liability model for internet intermediaries such as social networks. The present paper builds from the main EU approach exemplified by the Portuguese case and the German approach with its recently adopted law on the liability of social networks. Both cases are seen through the lenses of recent CJEU case law.

Social networks have become an important part of the globalized world, and it is only normal that the law should apply to them. As intermediaries between different kinds of users, social networks, like internet service providers and search engines were at first ruled exempt from liability over content posted and shared. That was what we can today call the Internet’s first liability model for intermediaries. But social networks have evolved quite a lot and raised the question about their nature as true (neutral) intermediaries. From a model of exemption of liability controlled under self-regulation, other models have emerged, such as co-regulation and public regulation. This paper aims to study the current regulatory model for social networks in Portugal under the EU provisions and how that model should be interpreted under the CJEU recent case law.

The importance of paradigms, i.e., regulatory models that interlink law, knowledge and social norms with regard to media law and the protection of personality rights can be evaluated by taking into account that the central relevant legal norms have hardly changed, while the practical legal situation is undergoing a fundamental change.