2.1.1 Introduction

Several recent initiatives have proposed new human rights for the digital sphere. This is in response to new challenges to human rights in an increasingly digitalised world. Recent developments to strengthen the governance of artificial intelligence (AI) have contributed to this debate. However, is there really a need for genuinely new digital human rights or would it suffice to adjust or extend existing rights by interpretation to deal with the new threats from cyberspace? As the proposals claim the emergence of new principles and rights, at which stage is the development of new digital human rights? How have European institutions reacted to the proposals and which regulatory efforts have they undertaken? If the new rights are proposed to be protected at the European level, what about the universal level of a global cyberspace, where there is a threat of increasing fragmentation?

Specific attention will be given to the regulation of AI from a human and fundamental rights perspective. In a dramatic move, a large number of renowned experts and scientists, among them developers of AI, have made a call in an open letter in March 2023 for a pause, a moratorium on the training of AI going beyond ChatGPT 4 in order to provide time to deal with the shortcomings in terms of reliability and some neglected aspects of the new technology. The letter also calls for quicker regulation by governments to provide a proper framework for the development and use of AI. This was complemented by concerns expressed by leading AI developers and even companies. The erratic Elon Musk has welcomed the suggested pause, and in view of the fact that ChatGPT cannot always distinguish between truth and falsehood, announced the development of a ‘TruthGPT’ as an alternative. Prompted by data protection concerns, Italy even temporarily prohibited the use of ChatGPT in order to obtain some assurances. The White House and the US Senate have called on the leaders of major companies to report on their activities. The Council of Europe (CoE) and the European Union (EU) have presented new regulatory approaches to AI, which will be analysed in a comparative way regarding their contribution to the protection of human and fundamental rights.

2.1.2 Protection of Human Rights on the Internet

The question of how to protect human rights online was first raised by civil society at the World Summit on the Information Society of the United Nations (UN), which took place in Geneva in 2003 and in Tunis in 2005. While the final documents of those conferences made only a few references to human rights,Footnote ¹ the topic became a major concern in their follow-up in the form of the annual Internet Governance Forum (IGF).Footnote ² For example, on the suggestion of the Association for Progressive Communications, which in 2006 produced an Internet Rights Charter, the Dynamic Coalition on Internet Rights and Principles established at the IGF in Rio in 2007 began elaborating the Charter of Human Rights and Principles for the Internet. The Charter was drafted in a broad process mainly by civil society and academia and presented as a draft version at the IGF in Vilnius in 2010, while the final version was presented at the IGF in Belgrade in 2011. The methodology was oriented towards the Universal Declaration of Human Rights in order to interpret it and other key UN human rights documents such as the International Covenants on Civil and Political as well as on Economic, Social and Cultural Rights, the UN Conventions on the Rights of the Child, and on the Rights of People with Disabilities for the Purposes of the Internet. The only new right identified was the right to access to the internet, which is formulated in Article 1 of the Charter.Footnote ³ The Charter contributed to the general debate on internet rights, which produced numerous proposals.Footnote ⁴

The UN human rights bodies were thus far largely absent from the topic. Only in 2011 did the Special Rapporteur on the Promotion and Protection of the Right of Freedom of Opinion and Expression, Frank LaRue, produce a report with a focus on the internet.Footnote ⁵ In 2012, the UN Human Rights Council adopted its first resolution on human rights and the internet in which it used the famous formula that ‘the same rights people have offline must also be protected online’.Footnote ⁶ This clarified that all human rights, in principle, are also applicable online, but does not exclude taking the particularities of the internet into account. Since that time, the UN has taken up issues related to the internet in several fora and recently prepared the Global Digital Compact that was agreed upon by its Summit for the Future of the Internet in September 2024. The compact deals with digital cooperation, including the application of human rights online.Footnote ⁷

Already before the UN started to deal with the issue, the CoE engaged in the question of how to apply human rights, in particular the European Convention on Human Rights (ECHR) to the internet, and since has taken the lead among international organisations in the study and regulation of the new challenges to human rights brought by the internet.Footnote ⁸ Inspired by the Charter on Human Rights and Principles for the Internet, the CoE elaborated a guide on human rights for internet users, which contains a catalogue of the main digital human rights.Footnote ⁹ The European Court of Human Rights (ECtHR) has developed its case law on the issue, related mainly to access to the internet, freedom of expression,Footnote ¹⁰ and the right to privacy and data protection with regard to the new technologies.Footnote ¹¹ The tech community has also shown awareness of the need to give adequate attention to human rights in regard to technological development by coining the concept of ‘digital humanism’.Footnote ¹²

2.1.3 Proposals for New Digital Human Rights

In recent years, several proposals for new digital human rights have been launched, such as the Charter of Digital Fundamental Rights of the EU, elaborated by a group of mainly German experts and launched with the help of the Zeit Foundation in 2016 and updated in 2018.Footnote ¹³ The idea was to complement the EU Charter on Fundamental Rights drafted by a Convention in 2000, which became binding as part of the Treaty of Lisbon in 2009. The proposal contains, for example, the right that net neutrality must be provided in a non-discriminatory way (Article 11). Of particular interest are the rights related to automated systems and decisions; for example, that the criteria for automated decisions, such as in regard to digital profiling, must be transparent and be taken by natural or legal persons. Every person must have a right to the independent review of such decisions by a human being (Article 5). The rights should apply to the EU, state and non-state actors, including internet platforms.

Another initiative came in early 2021 from the author and lawyer Ferdinand von Schirach, who suggested six new fundamental rights to complement the EU Charter on Fundamental Rights, among them two new digital human rights: ‘Everyone has the right to know that any algorithms imposed on them are transparent, verifiable and fair. Major decisions must be taken by a human being.’ The other fundamental right proposed was the right to digital self-determination, according to which ‘excessive profiling or the manipulation of people is forbidden’. This proposal was supported by the WeMoveEurope Foundation, which has collected more than 270,000 supporters.Footnote ¹⁴ While these definitions lack the necessary precision to be directly legally applicable, they may serve as principles or be concretised depending on the respective context. The proposal included the idea of organising a new Convention to discuss the enlargement of the EU Charter on Fundamental Rights on the basis of these rights. However, this proved not to be realistic. A right to informational self-determination with a focus on data protection is already part of German law.

The proposals are addressed in the first place to the bodies of the EU, such as the European Parliament, the European Commission, and the governments of European states. However, there has been no known direct response to the proposals, while the European Commission and Parliament have developed their own proposals in the field of digital human rights, to be presented later in this chapter.

2.1.4 Methodology for ‘Creating’ New Digital Human Rights

The various initiatives for the progressive development of digital human rights and principles raises the question of how such new rights are being created. There has been an abundance of declarations and recommendations by various institutions, and non-government and inter-governmental organisations, sometimes developed with a multi-stakeholder approach.Footnote ¹⁵ With few exceptions, they are all of a soft law nature. Today, this is the norm in the progressive development of international legal obligations. If the authority of the proposed rules is high, they might be respected even without being legally binding. Therefore, the process of creation, whether by state initiatives or in a multi-stakeholder approach, whether by non-government initiatives or by regulatory bodies at the regional or universal level, makes a major difference. The regulation may not only come from public institutions but also from private platforms; for example, by way of self-regulation, which might follow recommendations from the public sphere, thus providing the horizontal protection of human rights – that is, of individuals against private companies. For example, in the case of the Human Rights Oversight Board of Facebook/Meta, individuals can launch appeals against company decisions that limit their freedom of expression.Footnote ¹⁶

There is an obvious danger of an inflation of the use of the concept of ‘rights’, which requires appropriate standards for their recognition. Today, we are faced with many claims for new human rights in various fields, but whether they find their way to general recognition and finally into regulatory norm-setting is a process with many factors. Already in 1984, Alston proposed some criteria for quality control in the creation of new human rights, such as the social value added, non-repetition of existing rights, ability to achieve high international consensus, or being sufficiently precise to produce identifiable rights and obligations.Footnote ¹⁷ Rights might also be recognised only at national or regional levels, which raises the question whether human rights need universal standing to be recognised as human rights.Footnote ¹⁸ For example, the prohibition of the death penalty as a key human right in Europe applies only among the members of the CoE and a number of other states globally, and therefore is not a universal human right. However, this does not affect its human rights character. The Spanish government has drafted a Charter on Digital Rights, which contains a comprehensive set of rights for the digital environment, including the right to digital identity, to public participation by digital means, and the right of access to digital environments for older persons. In several cases, the details of the rights identified are to be specified by the law.Footnote ¹⁹

Much depends on the protection needs identified by relevant actors. For example, while the focus in the past was on data protection, leading to various regulatory efforts such as the modernised Convention 108+ of the CoE or the General Data Protection Regulation (GDPR) of the EU, more recently the main concern has been with illicit content such as hate speech and disinformation on the internet, while today the protection of human rights in the development and use of AI takes centre stage. AI is also used for the Internet of Things. This produces non-personal data, which are not covered by the GDPR, but may still raise protection issues. Generally, the rights are to address protection needs, which in the digital environment can be structured into issues related to identity and access such as digital self-determination and protection from blocking and filtering as well as internet shutdowns, issues of protection against illicit digital content such as hate speech, disinformation, defamation, or online violence, and issues related to protection against technological threats such as surveillance, biometrical data use for facial recognition, and the use of AI to interfere with human rights or the harassment of bloggers or of digital human rights defenders.

Not all the digital rights proposed qualify as human rights. As an advocacy non-governmental organisation (NGO), European Digital Rights (EDRi) has established a network of NGOs from different countries to protect and promote digital rights.Footnote ²⁰ In 2014, EDRi also produced a ten-point Charter on Digital Rights aimed mainly at members of the European Parliament preparing for (re-)election. In practice those rights were rather commitments in the form of principles covering a wide range of issues, such as the promotion of encryption or of free software.Footnote ²¹

Various questions related to the emergence of new human rights have been studied in detail in a recent handbook on new human rights, which also looks at some examples from the digital world.Footnote ²² The development of new human rights is a process starting with the identification of new protection needs, as mentioned, their articulation in the form of rights, and finally their recognition and implementation. Mart Susi identifies several elements of inadequate protection on the basis of existing human rights as a reason for developing new human rights. For rights derived from other rights, he observes a decrease in abstractness.Footnote ²³ This could also be said for rights derived from principles such as the right to informational self-determination, which goes back to a decision of the German Constitutional Court in 1983.Footnote ²⁴ In most cases, an evolutionary interpretation as applied by the ECtHR will suffice. For example, the secrecy of correspondence by letter can be extended to personal communication using the internet. But this also needed additional provisions on data protection, as in CoE Convention 108+, to address new privacy needs.Footnote ²⁵

In view of the particularities of the online domain, Susi developed the non-coherence theory of digital human rights, which claims a change of meaning and scope when human rights are transposed from the physical to the digital world. Accordingly, digital human rights are different by nature from the respective offline human rights.Footnote ²⁶

New human rights may be derived from parent rights (‘implied rights’) or be stand-alone rights. For example, the right to access to the internet has been derived by some from the freedom of expression and information, but others claim that because the relevance of meaningful access to the internet goes far beyond the freedom of expression it should be considered as a stand-alone right.Footnote ²⁷ This is also supported by a report by the Office of the UN High Commissioner for Human Rights on Internet Shutdowns from a human rights perspective, which shows that many more rights are affected than just freedom of expression.Footnote ²⁸ However, while the report refers to international commitments ensuring universal internet access, it does not speak of internet access as a human right, which shows that the right is not yet fully recognised as such at the UN level.Footnote ²⁹

Furthermore, the ‘right to be forgotten’ has been claimed to be a stand-alone right, while its formation is related to the right to privacy and data protection.Footnote ³⁰ Based on a judgement of the European Court of Justice, it has been introduced as part of the GDPR rules of the EU.Footnote ³¹ In response, Google has received thousands of requests for the deletion of links to personal information. It was largely left to the private company how to deal with these. However, whether a new digital human right has really been created is also being questioned.Footnote ³² So far, it is legally codified only in Article 17 of the GDPR and a few national constitutions, and is thus not generally recognised. However, in Biancardi v. Italy, the ECtHR has upheld the right to be forgotten, without referring to it in that way, against the freedom of expression of a journalist. The delayed de-indexing of an article on criminal proceedings on the internet had been found damaging to the reputation of a person.Footnote ³³

Human rights can be individual and collective. Most experts will agree that a human right should be individually enforceable, otherwise we should better speak of principles. But there can also be a collective enforcement, as in the context of social rights. Some universally recognised human rights, such as the right to self-determination, and including the solidarity rights of peace, development, and the environment, can only be realised collectively. They are therefore sometimes called ‘peoples’ rights’. The African Charter on Human and Peoples’ Rights contains several such rights. Therefore, it might be worth also distinguishing between individual and collective digital human rights. For example, some – such as the right to cybersecurity – are quite abstract and need concretisation to be applied to individuals. However, this is nothing unusual if we consider, for example, the right to water and sanitation or the right to a clean, healthy, and sustainable environment recognised respectively in 2010 and in 2022 by the General Assembly of the UN.Footnote ³⁴ Most human or fundamental rights also need concretisation. This is why one function of the various human rights treaty bodies is to elaborate interpretations, mostly in the form of general comments, while the human rights courts can give binding interpretations in individual cases that may provide general directions.

2.2.1 Introduction

The impact of the development and application of AI (systems) on human and fundamental rights has become a priority concern for many actors, in particular since the company OpenAI backed by Microsoft has made ChatGPT 3 freely available.Footnote ³⁵ The new technology opens new opportunities, but also new threats, such as the possibility of further facilitating the assessment of people according to their social behaviour (social scoring), as is already in use in China. While it produces astonishing results, which have generated heightened attention and expectations for its potential, there have also been warnings about its disruptive potential for democracy and society at large if used for disinformation. This culminated in the open letter of 22 March 2023 signed by key AI developers and thousands of concerned scientists asking for a six-month moratorium on the training of AI systems more powerful than ChatGPT 4. This is motivated by what the letter calls an out-of-control race, with AI labs ‘developing and deploying ever more powerful digital minds that no one – not even their creators – can understand, predict and control’. One example given is the ‘flooding of information channels with propaganda and untruth’. The uncontrolled race may lead to a ‘loss of control of our civilization’. Consequently, it creates new challenges to democracy and human rights. Time should be taken to introduce much-needed regulation and to address planning and management needs, including the development of shared safety protocols for advanced AI design to be overseen by independent outside experts. AI developers should work with policymakers ‘to dramatically accelerate the development of robust AI governance systems’, including oversight of highly capable AI systems, auditing and certification systems, and liability for harm caused.Footnote ³⁶

The Human Rights Council of the UN also reacted by indicating the potential and risks of the emerging technologies and recommending certain measures to protect the human rights of individuals throughout the life cycle of AI systems. It also recommended strengthening the capacities of the Office of the High Commissioner for Human Rights (OHCHR) to advance human rights in the context of new and emerging technologies, and asked it to prepare a mapping report identifying challenges and gaps in this respect.Footnote ³⁷ The report, presented in 2024, identified several gaps, including the provision of advice that should be provided by the OHCHR to Member States and all stakeholders to support them in integrating human rights from the design to the regulation of digital technologies.Footnote ³⁸

This development shows the limitations of the old approach that industry should lead on new technological developments and that regulation can come later in cases where economic considerations lead to the neglect of societal concerns. The corresponding approaches of self-regulation and declarations of ethical principles, while important, are insufficient in such circumstances where the largest tech giants match each other in regard to economic opportunities, while states only pursue their national interests. The Asilomar Principles on Beneficial AI already elaborated in 2017 with the purpose of ensuring the compatibility of the development of AI with human dignity, rights, and freedoms, were already concerned that AI systems remain under human control.Footnote ³⁹ The Organisation for Economic Co-operation and Development (OECD) adopted a set of principles on AI in 2019,Footnote ⁴⁰ while UNESCO adopted a consensus-based Recommendation on the Ethics of Artificial Intelligence in 2021.Footnote ⁴¹ OpenAI on its website expresses its commitment to ensure that artificial general intelligence benefits all humanity, and also commits to the principle of transparency.Footnote ⁴² However, the training of AI systems is presently taking place behind closed doors without state or societal control. The danger of serious harm created by these developments has led one of the AI pioneers at Google to resign from his position in order to be free to speak out.Footnote ⁴³

The call for the regulation of the development of AI and its application has accelerated ongoing efforts in Europe and beyond.Footnote ⁴⁴ Besides the EU and the CoE, the US has responded with a non-binding AI Bill of Rights and a White House executive order. The AI Bill of Rights has a focus on addressing challenges to democracy and certain rights such as privacy and non-discrimination with a focus on serving the American people. It also foresees a right to opt out and of access to a human person to consider and remedy problems.Footnote ⁴⁵ In reaction to the appeals for regulation, the heads of the main companies were called to the White House and the Senate, where even the chief executive of OpenAI called for regulation.Footnote ⁴⁶ The issue is also on the agenda of the G7.

China has also adopted ‘Interim Measures for the Management of Services of Generative AI’, which are to complement existing laws on network security and data security. The regulation establishes the requirement that the contents should reflect the basic values of socialism, while the law should also prevent discrimination, hatred, violence, fakes, and other content that could interfere with the economic and social order.Footnote ⁴⁷

These different and partly competing approaches also carry some ideological baggage. American and European values or Chinese socialism create the danger of a further fragmentation of the internet. Accordingly, universal rules for global problems created by the use of generative AI would be necessary to counter the trend of fragmentation and polarisation. Digital constitutionalism aiming at a normative framework for the protection of human rights and the balancing of powers is one approach to addressing these concerns.Footnote ⁴⁸ Strengthening international cooperation and closing digital divides are the main aims of the UN Global Digital Compact. It contains several principles and objectives for international cooperation and also aims at enhancing governance in the field of digital technologies for which purpose new institutional proposals have been made, such as the establishment of an International Scientific Panel on AI to conduct independent risk assessments and produce annual reports, a Global Dialogue on AI Governance, and a Global Fund for AI for Sustainable Development. In support of stakeholders, the Office of the High Commissioner for Human Rights in Geneva is to provide advice on ensuring human rights.Footnote ⁴⁹

As the non-binding recommendations and commitments to the self-regulation of AI were considered insufficient and some of the developers themselves were calling for a binding regulation, European regional organisations took the lead in elaborating new rules. Therefore, the efforts of the CoE and the EU will be studied here in greater detail using a comparative approach. Both of these started long before the hype around ChatGPT.

2.2.2 The CoE on AI and Human Rights

From a human rights perspective, major work on the regulation of AI has been undertaken by the CoE, which has traditionally taken the lead in the field of the internet and human rights. The methodology of the CoE aims to establish a committee by decision of the Committee of Ministers (CoM) for a particular topic to produce a report with a recommendation for adoption by the CoM. The committee is supported by the competent staff of the CoE and traditionally follows a multi-stakeholder approach as it brings together experts from Member States and civil society as well as academia, while the business community is also consulted. In the case of AI, the CoE has engaged in numerous activities since 2017 to study pertinent human rights issues and produce recommendations aimed towards guidance and regulation in this field.

In particular, the Parliamentary Assembly of the CoE adopted a recommendation in 2017 on technological convergence, AI, and human rights,Footnote ⁵⁰ calling for the drafting of guidelines. In addition, the European Commissioner of Human Rights also came out in 2019 with a recommendation entitled ‘Unboxing Artificial Intelligence: 10 Steps to Protect Human Rights’.Footnote ⁵¹ It called for Human Rights Impact Assessments, information and transparency, independent oversight, non-discrimination, data protection, and remedies, to mention just the main steps. Also in 2019, the CoM established the Ad Hoc Committee on Artificial Intelligence (CAHAI), which was succeeded by the Committee on Artificial Intelligence (CAI) in 2021. Having adopted a declaration in 2019 on the manipulative capabilities of algorithmic processes,Footnote ⁵² one of the first recommendations by the CoM on the human rights impacts of algorithmic systems, with a set of guidelines attached, was adopted in 2020.Footnote ⁵³ Based on a multi-stakeholder consultation, CAHAI with the help of three sub-groups produced a comprehensive feasibility study on a legal framework for the development, design and application of AI.Footnote ⁵⁴ It came to the conclusion that while there were several applicable instruments, a number of substantive and procedural legal gaps existed that could be best addressed by a new legal framework for which key elements were identified.Footnote ⁵⁵

In December 2021, after broad consultation, several studies, and conferences,Footnote ⁵⁶ CAHAI adopted a report entitled ‘Possible Elements of a Legal Framework for Artificial Intelligence, Based on CoE’s Standards on Human Rights, Democracy and the Rule of Law’,Footnote ⁵⁷ which dealt with issues related to the development, design, and application of AI based on CoE’s standards. For this purpose, the regulatory work of other international organisations such as UNESCO, the OECD, and the EU was taken into account.Footnote ⁵⁸ It set out the main elements for a transversal convention creating a framework and possible additional legal or soft law instruments to apply generally or to specific sectors, and the public sector in particular. For example, a model for a human rights, democracy, and rule of law impact assessment on a soft law basis was proposed.Footnote ⁵⁹ Mantelero, who has developed his own Human Rights, Ethical and Social Impact Assessment, critically noted that the CoE approach might be too broad.Footnote ⁶⁰

Between 2022 and 2024, the CAI negotiated the text for a common legal instrument on AI. The drafts were provided by the secretariat and then discussed in the committee.Footnote ⁶¹ The Framework Convention on Artificial Intelligence, Human Rights, Democracy and the Rule of Law was designed as an open convention with a global vocation. There were fifty-seven states participating, among them some already established observer states of the CoE, including the USA, Canada, Mexico, and Japan, and also the EU. The Framework Convention was finally adopted by the CoM in May 2024 to be opened for signature in September 2024 at the meeting of ministers of justice in Vilnius. For it to enter into force, it needs only five ratifications. All states (including the EU) that have participated in its negotiation, as well as other states invited by the CoM of the CoE, can then become parties to the Convention.

The Framework Convention mainly contains principles for respecting existing human rights, but does not formulate new digital human rights. It also covers the obligations to protect the integrity of democratic processes and respect for the rule of law (Article 5).Footnote ⁶² The Convention contains relevant guidance for its parties such as the obligation to adopt and apply measures to protect human dignity and individual autonomy during the lifecycle of AI systems.Footnote ⁶³ Its framework character implies that there might be additional instruments to address specific issues of AI governance. There are provisions on transparency and oversight, on accountability and responsibility, and on non-discrimination in the implementation of the Convention.Footnote ⁶⁴ There is also a right to be informed when one is interacting with AI systems.Footnote ⁶⁵ It also provides for a risk and impact management framework, which includes an obligation on parties to ensure that adverse impacts of AI systems on human rights, democracy, and the rule of law are adequately addressed.Footnote ⁶⁶ There is no obligatory human rights, democracy, and rule of law impact assessment, but the CoE plans to elaborate a pertinent methodology. Regarding effective remedies, measures are to be foreseen that inform relevant bodies and where appropriate also affected persons about AI systems having the potential to significantly affect human rights, allowing them to contest decisions made or lodge a complaint to competent authorities.Footnote ⁶⁷ Measures to ensure that AI systems are not used to undermine the integrity of the democratic process and the rule of law are to be adopted.Footnote ⁶⁸

Parties should also establish effective oversight mechanisms. However, several general legal safeguards proposed in the elements for a convention by CAHAI, the predecessor of the CAI, such as the right to interaction with a human,Footnote ⁶⁹ did not make it into the final version of the Convention, although they were partly taken up in the AIA.Footnote ⁷⁰ With regard to the scope of the Convention, national security interests are excepted. The focus is on regulating public bodies. In view of resistance to including the private sector, the final version provides that parties will declare at the time of signature or ratification whether they will apply the principles and obligations also to private actors.Footnote ⁷¹ It seems that a watering down of the Convention was the cost of including the USA and other non-European states in the negotiations. States are free to use the legal tools they consider appropriate in implementing the Convention (Article 3). This would include the possibility of private self-regulation, which has been criticised by civil society, as it could undermine the binding character of the Convention. The general exception for national security has also been criticised.Footnote ⁷²

Like the Data Protection Convention (Convention 108+),Footnote ⁷³ the Biomedicine (Oviedo) Convention and the Cybercrime (Budapest) Convention of the CoE, the Convention will also be open by invitation to non-European states. For this purpose, the interests of future parties from outside the European region, but also in the EU, which was finalising its Artificial Intelligence Act (AIA) in parallel, had to be taken into account in the negotiations.

The CoE therefore moved ahead with a legally binding approach, whereas the field of AI and human rights has so far been primarily the subject of soft law recommendations and guidelines. This approach also goes beyond the ethical dimension covered by UNESCO guidelines,Footnote ⁷⁴ but aims at legally binding obligations after soft law and self-regulation has been shown to be insufficient. There are obvious advantages and disadvantages to this approach. The advantage of a legally binding obligation and not just a soft law commitment is obvious if we look at the difficulties of having the multitude of recommendations and guidelines in the field respected in practice. The disadvantage is that a convention is negotiated mainly by states, which is also reflected in the composition of the CAI; this includes CoE member and observer states, and representatives of international organisations and private business, while selected members of civil society and academia can only participate if invited as observers. The outcome of the negotiation process needs to be ratified by national parliaments. As in the case of the Cybercrime Convention, only limited membership from non-European states can be expected. In order to achieve greater participation, standards had to be lowered. Therefore, whether the Convention can be expected to produce a valuable global response to the issues at stake is yet to be seen. It might remain a mainly European response to a global challenge, as the other open conventions of the CoE have. However, the effort to open up to the world needs to be recognised.

2.2.3 The EU Act on Artificial Intelligence and Fundamental Rights

The efforts of the EU in the field of regulating AI also aim to have an effect beyond the EU, as the EU, as in the case of the GDPR, aims at a ‘Brussels effect’. In a broad process, the EU has worked on different aspects of AI including its definition and ethical principles, on which the Independent High-Level Group of Experts on AI has produced relevant proposals including guidelines on ethics.Footnote ⁷⁵ In January 2022, the European Commission presented a European Declaration on Digital Rights and Principles for the Digital Decade, which also contains rights related to the use of AI jointly adopted with the European Parliament and the Council in December 2022.Footnote ⁷⁶ It focuses on principles and claims that in the digital transformation of Europe people should be at the centre, but, however, avoids saying clearly whether people should have enforceable fundamental rights. The declaration was supposed to serve as a reference work for politics and business.Footnote ⁷⁷ Under freedom of choice, the rather short declaration also contains principles on AI, such as ensuring transparency about the use of AI, avoiding discrimination, and ensuring that algorithms are not used to predetermine people’s choices, which is reminiscent of some elements of the rights proposed by the WeMoveEurope campaign. This paved the way for the EU AIA to regulate AI.

The proposed EU AIA,Footnote ⁷⁸ of April 2021, was presented by the European Commission after wide public consultation with the involvement of all interested actors. The explanatory memorandum only saw advantages for fundamental rights,Footnote ⁷⁹ and indeed compared with the present situation, improvements can be expected. Certain AI practices, such as the evaluation of the trustworthiness of a person leading to a social score, are to be prohibited. For AI, which interacts with humans and uses biometric data, certain transparency obligations should apply.Footnote ⁸⁰ For non-high-risk AI, providers are encouraged to develop codes of conduct for which the AIA sets a framework.

The Artificial Intelligence Strategy of the EU of 2018 was mainly concerned with making the EU a world-class hub for AI.Footnote ⁸¹ While committed to a ‘human-centric approach’, it also includes rules for product safety and civil liability. The resolution adopted by the European Parliament in May 2022, on ‘AI in a digital age’,Footnote ⁸² focused on the competitive situation of the EU in the global context and addressed various sectors including AI and the future of democracy. It mentioned many challenges for the protection of fundamental rights, which were to be fully respected in the digital transition and the development of AI, and called for ex ante risk self-assessments, data protection impact assessments, and conformity assessments.Footnote ⁸³ It was clear that the risk-oriented approach, for example, in the use of face recognition, surveillance, or transparency requirements, did affect significant fundamental rights issues internally and human rights concerns externally. In addition, the participation of AI users and their rights were considered to be key concerns. In reaction to the debate on ChatGPT, the European Parliament requested stricter rules for ‘general purpose models’ of AI, which are trained on broad data at scale and can be adapted to a wide range of distinct tasks. This includes generative AI such as ChatGPT, which can produce new content.

With regard to fundamental rights, the EU Agency on Fundamental Rights provided an overview in 2020 of the main issues related to AI.Footnote ⁸⁴ There were suggestions for a more specific inclusion of fundamental rights concerns in the AIA.Footnote ⁸⁵ A total of 115 European civil society organisations, including EDRi and Algorithm Watch, called for a number of amendments to the AIA to strengthen its impact on fundamental rights.Footnote ⁸⁶ Besides a better mechanism to deal with new risks, the authors called for meaningful rights and redress for people impacted by AI systems, such as the right for the explanation of decisions taken, the right to a judicial remedy, and the requirement of accessibility to all AI systems. NGOs such as Algorithm Watch produced studies on how to protect worker rights when AI is used in the workplace or how to provide access to data for public interest research.Footnote ⁸⁷

After key committees of the European Parliament such as the Civil Liberties Committee had adopted a position on the AIA in which most of the concerns of civil society, such as the prohibition of predictive policing systems, emotion recognition, and real-time biometric identification in public spaces were taken into account, the EU Parliament adopted its position in June 2023.Footnote ⁸⁸ The trilogue (an informal inter-institutional negotiation bringing together representatives of the European Parliament, the Council of the European Union, and the European Commission) ended with an agreement in December 2023 and further negotiations on the adoption of the revised draft by the European Parliament in March 2024. After a very tough negotiation process, the AIA was finally adopted on 21 May 2024.Footnote ⁸⁹ The final text of the AIA was published in the EU Official Journal in July 2024 to enter into force the following month.Footnote ⁹⁰

The AIA provides for a risk-management system distinguishing between unacceptable risks, high risks, and lower risks in or from AI systems. With regard to high-risk AI systems, which are characterised by posing significant threats to health, safety, or fundamental rights,Footnote ⁹¹ before being placed on the market, providers should meet several requirements such as testing and mitigating foreseeable risks to health, safety, fundamental rights, the environment, rule of law, and democracy with the involvement of independent experts.Footnote ⁹² In Article 5, it defines several prohibited AI practices, such as manipulative techniques impairing the ability of persons to make an informed decision, social scoring and profiling, certain emotion recognition systems, and certain biometric identification systems, although there are numerous exceptions. Still, they create barriers against the violation of fundamental rights.

The AIA has binding force only in Member States of the EU, but there is the expectation that, similar to the GDPR, it will set a global standard for companies, and thus also have extra-territorial impact.Footnote ⁹³ In this context, it is worth noting that the GDPR already sets some applicable standards of relevance for AI applications, such as the prohibition of automated decisions related to individuals except if they give their consent (Article 22), thus applying the principle of human intervention (human in the loop) regarding data controllers. The Digital Service Act of 2022, which came into force in 2024, regulates online platforms with provisions relating to liability for the deletion of illicit and fake content and to remedies. In line with the competences of the EU, the objectives of the AIA are not focused on fundamental rights issues, but more broadly on risks related to the use of AI and their impact on economic and commercial as well as consumer concerns. It deals with the use of a trustworthy AI in products and services, and thus also adopts a harmonising and conformity-oriented approach. Accordingly, its first objective is described as ensuring safety and conformity of AI systems with fundamental rights during the whole AI lifecycle. For this purpose, it distinguishes different risk categories. Unacceptable risks, such as social scoring or the use of biometric data in public spaces, are prohibited in general; high risks, such as profiling, predictive analysis, and so on, are subject to risk management via assessments and transparency obligations, such as the right to be informed on the use of AI or the right to human oversight. However, there are also large exceptions for law enforcement and the security sector is fully exempted. In addition, there are safety and liability rules as well as a right to effective remedies. Fewer obligations apply to limited-risk and lower or minimal-risk AI systems.

The AIA became applicable according to a phased approach in which the prohibition of AI of unacceptable risk started to apply six months after the entry into force of the AIA (i.e., February 2025), and the obligations of general purpose AI model providers or the appointment of authorities in competent member states started to apply after twelve months. Certain obligations related to high-risk systems listed in Annex III, such as AI systems in biometrics, will become enforceable only after twenty-four months and others only after thirty-six months. A clarification of the rules for the implementation will be provided by delegated acts and guidance from the Commission, as well as codes of practice by the EU AI Office, established in May 2024.Footnote ⁹⁴ For example, only by early 2026 will the EU Commission guidelines on the classification of high-risk AI systems have to be issued. Consequently, owing to the complexities of the Act, its obligations will be phased in over several years, which raises the question of whether this might not come too late given the ongoing race for ever more powerful AI systems. However, in view of this fact, the European Commission has set up the AI Pact as a framework to assist companies to prepare for the AIA on a voluntary basis.Footnote ⁹⁵

2.2.4 Possible Complementarity between the Two Regulatory Approaches

While the CoE Convention on Artificial Intelligence, Human Rights, Democracy and the Rule of Law is fully focused on human rights and democracy standards, fundamental rights in the EU AIA only play a limited role, such as safeguarding against the undermining of existing standards as contained in the EU Charter on Fundamental Rights. While references to fundamental rights are included throughout the entire text of the AIA, they are limited to the rights contained in the Charter. This confirms the relevance of the EU Charter on Fundamental Rights for addressing AI. The EU, being represented in the drafting process of the AI convention of the CoE also contributed to its provisions from the EU background. In this way, possible differences were avoided. For example, the Convention provides that EU parties to the Convention shall in their mutual relations apply EU rules.Footnote ⁹⁶

Accordingly, while there is an alignment to be observed, the CoE Convention in terms of human and fundamental rights covers a much broader ground. For example, it also directly covers democracy, while the AIA is only of indirect relevance, although this has also been one of the important concerns in the EU process. In this regard, the two texts can also be seen as complementary. If, as can be expected, the EU becomes a party to the Convention, this complementarity will be particularly relevant. However, the EU might want to wait until a significant number of its member states have ratified the Convention. However, as the European Court of Justice has clarified in its opinion of 2021, issued on the request of the European Parliament on the accession of the EU to the Istanbul Convention, there is no need for a ‘common accord’ of all EU Member States before the Council decides to join the Convention.Footnote ⁹⁷

One major issue highlighted by civil society is the use of invasive applications of AI, such as biometrics for mass surveillance or in the migration context.Footnote ⁹⁸ The AIA sees the remote use of biometrics in publicly accessible places for law enforcement as a red line, but has exceptions for asylum and migration.Footnote ⁹⁹

One key problem is how to operationalise the right to digital self-determination in view of self-learning algorithms, which are black boxes even to their programmers. Accordingly, full transparency is technically not possible. Benefits and risks cannot always be fully determined in advance. To ensure that the persons affected remain in control has already shown to be difficult in the case of data protection rules. Therefore, the transparency obligation in Article 50 of the AIA contains the right to be informed if one is interacting with AI systems or if content is artificially created. The principle not to predetermine people’s choices as in the draft EU Declaration on Digital Rights and Principles can hardly be applied in practice where decisions in penal systems or the migration context are often guided by algorithms proposing decisions based on a large number of cases. However, rules on consent, as in data protection, are missing in this context. This makes the principle that safeguards or remedies should be provided all the more important, but the EU principles lack precision in terms of whom those safeguards should be provided for, let alone how they should look. The CoE, in its preliminary reflections and drafts based on Article 13 of the ECHR on the right to effective remedy or safeguards was more precise,Footnote ¹⁰⁰ while the EU Declaration does not even refer to Article 47 of its Charter on Fundamental Rights on the same right. However, the AIA contains certain mechanisms, such as a right to an appeal to be provided at the national level, but still needs progress on the issue of enforcement.

Regarding the regulation of AI by the CoE Framework Convention and the AIA, both regulation projects, having been finalised in parallel, did influence each other. For example, the definition of AI chosen for the AIA also appears in Article 2 of the Framework Convention. There was clearly an intention to ensure that where the two processes overlapped the negotiations should achieve complementary results. However, in cases of conflict for EU Member States, the AIA prevails, as the Framework Conventions allows them to give preference to their obligations under the AIA. The open letter calling for a moratorium has contributed to an acceleration of the legal regulations urgently needed to provide legal security and establish oversight institutions.

3.3.1 Trust

For Fuller, communication had a pivotal moral function because he saw ‘maintaining communication with our fellows’ as the overriding aim of human aspiration.Footnote ³⁴ Its further moral value lay in its role in creating law. In Fuller’s theory, ‘law is constructed through rhetorical activity producing increasingly influential mutual expectations or shared understandings of actors’.Footnote ³⁵ Through interaction and rhetorical activity,Footnote ³⁶ actors are also able to ‘generate shared knowledge and shared understandings that become the background for subsequent interactions’.Footnote ³⁷

Communication must clearly be more than cheap talk to give rise to genuine interaction,Footnote ³⁸ so we need to ask what kind of communication creates shared understandings and legal norms. Drawing on Habermas’s notion of communicative action, Cornelieu Bjola suggests that communication moves beyond ‘instrumental bargaining on the basis of fixed preferences’ to a more reasoned process, including ‘a mode of interaction between actors based on the logic of arguing; that is, of convincing each other to change their causal or principled beliefs in order to reach a reasoned consensus’.Footnote ³⁹ Similarly, Ian Johnstone points out that ‘[d]eliberation is not a communicative free-for-all, in which any argument is as good as any other; the felt need to offer reasons others can accept in principle sets the parameters of discourse’. Seen in this way, communication must be based on reason and principle.

Compare this standard with the kind of exchanges that result on the internet when users create and share disinformation or manipulate the processes of internet communication, either to amplify or suppress information or ideas, or to eviscerate the expertise and authority of qualified actors. The internet is particularly vulnerable to this form of abuse owing to the difficulty of verifying the identity of the persons behind the posts, or when a post is being artificially enhanced or suppressed by the manipulation of algorithms or the use of robots. Such abuse makes principled or reasoned discussion impossible, and every argument is indeed as good as the next because there is no way for the readers to ascertain which information or actors they can rely on. As a result, the posts that are more likely to be believed are those that align with the views that the reader already holds; a situation which reinforces existing divisions between groups in society rather than stimulating genuine interaction across boundaries of difference. This means that shared understandings cannot arise across a community as a whole. People misled by disinformation and manipulation will not have engaged in the process whereby shared understandings and norms are formed, they will not be able to make informed decisions themselves, and they will not trust the authorities who are attempting to make and implement informed decisions. Those governed by the law will not feel fidelity to it. As a result, disinformation and manipulation threaten the rule of law and also weaken government programmes set up to protect public health or welfare, or any other common good. It is therefore not surprising that the EU describes online disinformation practices as ‘public harms’, specifically harms to the integrity of electoral processes, and as ‘threats to our way of life’,Footnote ⁴⁰ which undermine trust and confidence in democratic politics. One of the best examples was the disinformation around COVID-19, as reported by the EU,Footnote ⁴¹ and by monitoring bodies all over the globe.Footnote ⁴²

The constitutive role of communication in the creation and maintenance of the legal and social order renders the integrity of internet communication particularly important. Expressed in terms of a rights analysis, the heightened social importance of reliable communication would suggest either that the scope of the individual’s freedom of expression should be more narrowly defined, or that, if that freedom is found to have been limited by the regulation of the internet, society’s interests should weigh more heavily in a proportionality analysis. In this regard, we can distinguish between the people who create or knowingly distribute false or misleading information and the people who unwittingly or negligently encourage or disseminate it. In the case of the former group, I would argue that the scope of freedom of expression does not extend to the right to knowingly misrepresent information or mislead. In the case of the latter group, the scope of freedom of expression can more plausibly be argued to include this group’s behaviour; that is, to include the right to unknowingly disseminate false or misleading information. However, in this case, at the point where freedom of expression has been found to have been limited, society’s interest in accurate and good faith communication should play a stronger role in justifying the limitation of that right.

The internet needs to be regulated because a lack of regulation leads to distrust and a breakdown of common values. But simply putting a regulator in charge of the internet with no way of ensuring that the regulator itself is trustworthy compounds the problem. In the area of COVID-19, for example, there were many examples of state actors spreading disinformation, either by denying the existence or spread of the disease or by suggesting cures with no medical efficacy.Footnote ⁴³ Moreover, we have seen how control and censorship of the media (social and registered journalism) has been used to justify government abuses and war.Footnote ⁴⁴ Ironically, the power to regulate cannot itself be left unregulated. It needs to be structured in an interactive manner, which ensures that the regulator is in dialogue with responsible stakeholders.

3.3.2 (The Constraint of) Power

States have a monopoly on legitimate violence within their territories, control over the executive arm of government, including its security apparatus, and the ability to pass new legislation. If states abuse this power, they pose a threat to democratic values and the common good. On the other hand, and despite the power they may enjoy over their subjects, states are simultaneously often weaker than powerful social media corporations, such as Meta and X. From both perspectives, states need to act in concert with non-state actors and broader society to be effective and compliant with the rule of law.

Fuller’s theory explains why the state is both too weak and too strong to act alone. The state needs the buy-in of its subjects because law is formed out of the engagement of those subjects with each other and the government. Fuller claims that, in practice, interaction was part of all lawmaking, ‘even … those [forms] apparently dominated by enacted law and formal law-making and law-applying institutions’.Footnote ⁴⁵ This was both because there is a horizontal element in apparently vertical lawmaking procedures, such as adjudication or even the drafting of legislation,Footnote ⁴⁶ and because the subjects of law are engaged in a vertical process of interaction with the lawgiver.Footnote ⁴⁷ Non-state actors thus help the state to create the law.

Particularly in the context of internet regulation, there is a practical reason why the state needs the help of broader society. The state often cannot enforce the law; that is, it cannot effectively regulate the internet without the engagement of non-state actors. Particularly where the government is not fully trusted by its citizenry, and where that government does not have the expertise to quickly identify disinformation, manipulation of the internet, or hate speech, non-state actors need to assist and collaborate with the government if it is to respond effectively to such misuse. Collaboration of this kind actually empowers the state meaningfully to counter the dangers posed by the internet.

On the other hand, the engagement of non-state actors also prevents the imbalance of power between state and subject from threatening the rule of law. Interaction is necessarily a reciprocal process, even when there is a power imbalance between the parties to the interaction. As Cheng explains:

The state bears the primary moral duty of protecting the subjects of law against threats to their lives, health, and other resources.Footnote ⁴⁹ It has the authority to exercise coercion, through regulation,Footnote ⁵⁰ or even criminalisation,Footnote ⁵¹ when this proves necessary to fulfil its duty. But both criminalisation and regulation can be manipulated by the state to favour a particular party, such as the government in power, and silence the input of the other actors in the internet community. In the context of the internet, a reciprocal process of interaction needs to be built into the very design of the regulatory process to prevent the coercive power enjoyed by the state from threatening the rule of law.

3.4.1 Self-Regulation

At the first level, service providers self-regulate. This term, ‘self-regulation’, is a slight misnomer, as I suggest that it be mandated by the state itself, and that penalties be attached to egregious failures by service providers to prevent serious harm through their users’ traffic on the internet. However, the horizontal and internal nature of the regulation is important; the platform must itself publish and enforce a code of conduct based on international best practices, and encourage debate among users of its platform on what the code of conduct should look like.

Singapore provides an example of self-regulation that is promoted by the statutory authority,Footnote ⁵² the Infocomm Media Development Authority.Footnote ⁵³ This government board encourages content providers to develop industry codes of practice in order to promote self-regulation and codes that complement existing internet content regulations.Footnote ⁵⁴ The dialogue between users of the platform and the platform, and among the users themselves, provides the first step in developing shared understandings that recognise the harm that can be caused by internet traffic and build consensus on how to avoid the harm.

The role that the users of the internet can play is illustrated by the process followed in South Korea whenever the Korean Communications Standard Commission (KCSC) instructs an internet provider to remove content from its platform.Footnote ⁵⁵ Upon receiving a request for deletion or rebuttal of the information, the provider of information and communications services must delete the information or take a temporary or any other necessary measure.Footnote ⁵⁶ This content can be hidden, but not deleted, for thirty days, to allow either the platform or the user to challenge the decision. An example of such an engagement arose in 2015, when the entire platform of an adult cartoon service was blocked because part of its content had been considered obscene. The platform operator challenged this ruling on the basis that the site used an age authentication system and therefore complied with the law. The decision to block the site was met with public outcry, and subsequently the commission removed the blocking order.Footnote ⁵⁷

3.4.2 Independent Regulatory Bodies

The second tier of regulation needs to be provided by independent regulatory bodies. These bodies need to be structurally independent of the government and steered by civil society. At the same time, these independent bodies must be designed and set up in such a way as to ensure that they genuinely do represent the public interest and operate in a transparent and accessible manner.

Recognition is growing that the involvement of civil society is crucial for healthy internet regulation. Civil society can fulfil two roles: developing the rules and policies by which the internet should be governed, and monitoring compliance with the normative system. A good example of the former can be found in the creation of the African Declaration on Internet Rights and Freedoms.Footnote ⁵⁸ This declaration is a pan-African initiative aimed at ‘promoting human rights standards and principles of openness in internet policy formulation and implementation’ across the African continent.Footnote ⁵⁹ The idea for the declaration emerged from the African Internet Governance Forum in Nairobi, Kenya, in 2013,Footnote ⁶⁰ at which participants came from government, the private sector, civil society, and regional and international organisations.Footnote ⁶¹

International bodies such as UNICEF can play a role in the constitution and functioning of internet regulation at the domestic level, and some of the domestic bodies fulfilling this function can be self-constituting, particularly those offering essential technical expertise.Footnote ⁶² However, non-state bodies require the backing of the government and need to remain in communication with it, for reasons explored further here.

I submit that these bodies need to be independent of the state because the government should not be identifying trends or disinformation itself, particularly in states with weak democracies. If an autocratic government exercises unilateral control over the internet, the rule of law is broken. Particularly egregious examples of this form of abuse have been seen when dictatorial governments in Africa have shut down the internet completely during protests or elections.Footnote ⁶³ By contrast, if external bodies are doing the job of regulation, they can function as an interlocutor with whom the government has to interact, and to whom it must justify its exercise of power. In this way, they help to ensure the necessary checks and balances in internet regulation.

Independence can be achieved only by the correct design of the regulatory body and of its connection with the state. First of all, the power to regulate must be given to an external body; that is, a body that is structurally separate from the state. But, second, the regulatory authority may not be subject to political interference. Singapore provides an example of a body without structural independence. Under the Protection from Online Falsehoods and Manipulation Act of Singapore, government ministers can order the publication of corrections and the retraction of content they assess to be false or against public interest.Footnote ⁶⁴ The regulatory body is thus embedded within government itself. However, South Korea provides an example of an apparently independent regulatory body that is still subject to strong political interference. The KCSC is established through legislation and identifies itself as a private organisation; however, all nine members of the Commission are appointed by the president.Footnote ⁶⁵ Consequently, a nominally independent ‘private’ organisation is factually ‘under the direct control of the President’.Footnote ⁶⁶

In addition to politicised appointments, the KCSC has been criticised for its lack of transparency.Footnote ⁶⁷ The norms that it applies when it suppresses internet communications are opaque, and it enjoys wide discretion in its decisions.Footnote ⁶⁸ A similar criticism is levelled at the new power enjoyed by the Film and Publications Board in South Africa,Footnote ⁶⁹ a board whose core members are also appointed directly by the relevant minister.Footnote ⁷⁰

The problematic role of the government in appointing incumbents to these regulatory bodies highlights another important design element of healthy internet regulation, namely, a transparent process for the selection of office holders. Such a selection process addresses two problems at once. First, it reduces the chance that the regulatory body will be beholden to the government and thus lack independence. But second, it also helps to ensure that such bodies do, in fact, represent the public interest. These independent bodies do not have a democratic mandate, which means that some kind of public process is needed to ensure responsiveness and legitimacy for the authority that they exercise, particularly for those bodies that are formulating policy. The selection process should ideally consist of public interviews conducted by mixed panels representing both the legislature and experts in the field of internet regulation.Footnote ⁷¹ Such a process ensures the interaction from which shared understandings can be built by promoting trust in the incumbents of the regulatory bodies.

Legislation or regulation is then needed to confer on this body the power that resides, by default, in the state itself: the power to regulate the internet. These powers serve two functions. They are, on the one hand, a check on inadequate self-regulation by service providers, while on the other hand, they serve as both a check on and support for the government in its duty to prevent harm through internet usage. Particularly where the government faces challenges of technical capacity, there needs to be coordination between rapid information task teams, which are properly constituted, to respond effectively to immediate crises and provide watchdog analysis of future or emerging threats. In relation to disinformation, this needs to be a real-time response, so that inaccurate and damaging information can be removed immediately if needed.

However, immediate responses are not always necessary. Monitoring and response bodies can also be assigned to different target areas that need to be addressed, such as terrorism, incitement, hate speech, and xenophobia. Such bodies may react in a more long-term manner and even coordinate counter-campaigns against harmful internet initiatives.

Although these bodies need to be independent of the government, they need to be supported by the government to be effective, a point discussed further in the next section. They need to operate under clear rules and procedures, and remain responsive to the engagement of the public as well as the government. As seen in the example of the KCSC, public response to the rulings of this independent authority can help it to refine and clarify the norms that it is meant to be applying.

3.4.3 The Role of the State

The state is needed partly because deleting and retracting does not eliminate the activity behind the information shared online, such as terrorism, incitement, hate speech, and xenophobia. Engaging with this reality is beyond the capacity of the task team; this is when the involvement of the state is warranted. We have many recent examples of occasions when the state should have acted, but did not. The online trends and chatter leading up to the 6 January riots in the US in 2021 made the riots foreseeable. Similarly, the Centre for Analytics and Behavioural Change picked up the indicators of the approaching riots before they began in South Africa in June 2021.Footnote ⁷² The presence of the state, through the police, was needed, whether or not the police themselves were gathering the primary information.

The role of the state requires clear delineation because its involvement in internet governance must be a justifiable intervention addressing credible and serious threats to the peace and security of citizens and the state as a whole. It would intervene in two main contexts. The first is proactive suppression of a serious forthcoming danger, such as xenophobic attacks, riots, and insurrection. These threats call for a multi-departmental response that only the state has the capacity to execute. In these cases, the state’s involvement should work based on the analysis, predictions, and recommendations made by independent task teams in the event that a pre-emptive response is required to maintain societal peace and security.

The second context in which the state has a role to play is in the prosecution of serious crimes committed online. These include hate speech in some jurisdictions and may also encompass the deliberate distribution of misinformation, especially during elections. And, of course, it includes all the offences that are also offences when committed offline. There is no reason why the normal law enforcement processes should be hindered because the crime is taking place in the digital space. Therefore, a component of the amendment to the internet regulation law in South Africa was that internet service providers were to inform the Film and Publication Board whether they had reported the presence of the prohibited content, as well as the particulars of the individual maintaining, hosting, distributing, or in any manner contributing to the content, to an official of the South African Police Service.Footnote ⁷³

4.2.1 The Meaning and Relevance of the Public/Private Law Distinction

A distinction between private and public law provides a ground for the systematisation of law.Footnote ²⁴ It first appeared in sixteenth-century legal treatises, which, largely ignoring the contrast in Roman law between jus gentium and jus civile, made a sharp distinction between jus publicum and jus privatum.Footnote ²⁵ Ever since, what belonged to the first and what was covered by the second category, however, remained a subject of vivid discussion.

Broadly speaking, private law traditionally encompasses the law of contracts, tort, property, business associations, commercial transactions, and related fields governing relations between individuals.Footnote ²⁶ The state here appears as a mere arbiter of the rights and duties that exist between private parties and is not the party with the interest.Footnote ²⁷

Figuring out the meaning of the term public law became more challenging. Thus, scholars have never had a complete control of the definition of public law. For example, public law was entirely omitted in Justinian’s civil law, but Hale and Blackstone’s civil law incorporated much of what the Romans would have called public law – including the rights and duties of the monarch, members of Parliament and other magistrates.Footnote ²⁸ Issues of whether public law is an autonomous body founded on the autonomy of the political realm, whether it is isolated from morality, to which philosophy should we turn to specify its subject and tasks (e.g., to functionalist legal thought, legal positivism, Dworkinian legal interpretivism, or political theory), and which values are immanent within public law, have been subject to a modern passionate debate exemplified in the work of Loughlin, Craig, Harlow, and Cane.Footnote ²⁹ At the highest level of abstraction, one may say that public law is inseparable from the government.Footnote ³⁰ Following this argument, one can argue that constitutional law, criminal law, and administrative law are principal tenants of public law. Yet one should bear in mind that a lack of a clear definition of public law is also a result of still present differences among jurisdictions – despite emerging unifying trends, the tenants of public law are not the same in, for instance, France, the US, and England.Footnote ³¹

The issue of whether public law is fundamentally different from private law slowly loses its attraction since, in contemporary times, it is often unclear whether the relevant institute, value, or principle derives from public or private law. This is why Kelsen’s claim, that a distinction between private and public law is ‘useless as a common foundation for a general systematization of law’, is still valid.Footnote ³²

There is much more to be said on the distinction between public and private law, but what helps approach the issue of the impact of constitutional rights on private parties is Kelsen’s view that traditionally, private law embraces norms governing relations between private parties, while public law embraces norms stipulating rights and duties between the state on the one hand, and private parties on the other.Footnote ³³

4.2.2 The Riddle of Horizontality: From Natural Law to the Horizontal Enforcement of Constitutional Rights

Individual rights were first theoretically articulated in natural law theory without any differentiation between duty bearers responsible for their violations and the state obligation to protect individual rights regardless of who a perpetrator was:

Thus, John Locke never considered natural rights to create obligations only for states, nor did he think a state’s duty to protect rights extended only to its intrusions. His vision found an expression in the first state documents stressing freedom and equality and acknowledging various duty holders vis-à-vis individual rights and a total state obligation to protect them from different intruders, not only from the state.Footnote ³⁵

While the idea of natural rights mostly proved short, the constitutionalisation of individual rights in different forms and through different generations continued to endure after its first occurrence in the US Bill of Rights. However, over time, the focus on the state’s duties became the centre of constitutional protection as the state accumulated power and authority over its citizens.Footnote ³⁶ As a result, constitutional rights, with fewer exceptions, extended only into the public law regime but not the regime of private governance. What followed on the theoretical level was the development of an animating idea that constitutional rights apply only vertically – in the relationship between a state and individuals – and not horizontally between private parties.

However, the fall of the Berlin Wall, the end of apartheid, and the return of many Latin American countries to democracy in the 1990s encouraged drafters of the new constitutions for post-communist, post-apartheid, and post-authoritarian societies, and constitutional law scholars, to rethink the nature and the purpose of the constitution, including the issue of its application in private law.Footnote ³⁷ Furthermore, the phenomenon of globalisation, the increased activity of non-state actors in world conflicts, and the penetration of transnational corporations, non-government organisations, and digital platforms into the traditional public sector have imposed a critical theoretical question – who are the duty bearers to whom human rights (either constitutional or international) impose burdens and obligations?Footnote ³⁸ Translated into this discussion, the starting position is that constitutional rights have become just as vulnerable to private actions as to the states, but unlike their constraint of the state in a Lockean sense, constitutional rights, in principle, do not constrain private actors.

Now, the academic discussion on whether constitutional rights should or should not produce effects in private law has brought to light three different positions regarding the applicability of constitutional rights in private law.

The first two positions are mutually exclusive. One, verticality, exposes the already elaborated traditional idea that constitutional rights protect only against the government and have no application in private law. Accordingly, they are judicially enforceable in public but not in private law. The main justification for insisting on verticality is the protection of individual autonomy in the private sphere, along with liberty or privacy, and the need for market efficiency.Footnote ³⁹ A frequent argument is that autonomy in the private sphere should be isolated from any state action or control.Footnote ⁴⁰ A constitution’s mandate is to secure a limited government and not to regulate private relations, which should be based on free individual choice.

The other position rests on the opposite, horizontal, approach: although defined and determined in constitutional (i.e., public) law, constitutional rights are directly applicable in private law, meaning that constitutional rights protect not only against government but also against private parties. Apart from insisting on the vulnerability of human rights in relation to any actor, either state or private, some authors also assert that there is no reason to avoid the constitutional regulation of autonomy for the purpose of its protection, as autonomy is already regulated by non-constitutional law.Footnote ⁴¹ Others indicate the function of a constitution, arguing that as a supreme law of the land it should apply to all equally. For example, Mattias Kumm’s total constitution claim derives from the premise that private law also involves political choices, and that political choices are subject to a constitutional rights review using proportionality analysis; this, in turn, suggests that decisions relating to private law should not be excluded from constitutional rights scrutiny.Footnote ⁴² Consequently, constitutional rights should be judicially enforceable in disputes between private parties.

The third position stands between the two extreme positions. It is grounded on an intermediate position, known as the indirect horizontal effect, and assumes that although constitutional rights apply directly only in public law against the government, they nevertheless indirectly apply, that is, produce effects, on private law.Footnote ⁴³ While in the direct horizontal effect position, private actors are directly subjected to constitutional rights, in the indirect horizontal effects position, private laws are subjected to constitutional rights. Courts play a decisive role here as they must, in one way or another, take into account constitutional rights in deciding disputes between private parties.Footnote ⁴⁴ What is indirect here is the fact that individuals are protected not directly by constitutional rights, but by the effects constitutional rights produce on private law.Footnote ⁴⁵

There is a further wrinkle here. Constitutional rights can produce either strong or weak indirect horizontal effects on private law. A strong indirect horizontal effect assumes that all private laws are subject to constitutional rights and may be challenged in private litigations, meaning that individuals are fully (yet indirectly through private law) protected by constitutional rights. Contrary to this, a weak indirect horizontal effect means that private law is not subjected to constitutional rights, but that courts can take constitutional values exemplified in applicable constitutional rights into account when interpreting or developing private laws in litigation between private parties.Footnote ⁴⁶ What stands behind the weak indirect horizontal effect is a claim that ‘the actions of private individuals can produce similar or identical effects or harms to those of governmental’.Footnote ⁴⁷

4.2.3 How Horizontality Works Offline

The concept of the horizontal effects of constitutional rights is one of the basic coinages of modern constitutionalism. Although Ireland and South Africa are famously known for expanding constitutionalism in private law, horizontality is operational in some other jurisdictions, most notably in many Latin American countries, including Argentina, Bolivia, Chile, and Colombia,Footnote ⁴⁸ and then in Malawi, Ghana,Footnote ⁴⁹ and Slovenia.Footnote ⁵⁰ As a rule, horizontality means different things in different jurisdictions.

The Irish Constitution itself contains an expressed commitment to direct horizontality: ‘The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.’ Since 1965, the Irish courts have maintained that constitutional rights may have a direct horizontal effect and are not imposing obligations on the state alone.Footnote ⁵¹ The objections to the horizontal application of constitutional rights from liberal constitutional theory have played no role in judicial reasoning.Footnote ⁵²

South Africa has a specific approach to the horizontality issue.Footnote ⁵³ Apart from verticality, its 1996 Constitution endorses the direct horizontal application of constitutional rights in private law ‘taking into account the nature of the right and the nature of any duty imposed by the right’.Footnote ⁵⁴ This is not the end of the story. The Constitution also authorises the indirect horizontal application of rights in disputes between private parties through the courts: ‘When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.’Footnote ⁵⁵

An important footnote should be added here. Direct horizontality also works in France, but not as a constitutional matter. French legal culture does not recognise the horizontal effect of rights, and, in some way, it is incompatible with it because the state has never been perceived as a threat to rights but rather as the protector.Footnote ⁵⁶ Nevertheless, rights do produce a direct effect in private law through the judicial application of the European Convention on Human Rights.Footnote ⁵⁷

In Germany and Canada, constitutional rights do not have a direct but an indirect horizontal effect. In the world of horizontality, Germany is best known for the application of the Drittwirkung doctrine, meaning third-party effect, which has produced a substantial horizontal effect in jurisprudence. The doctrine was born in the jurisprudence of the German Federal Constitutional Court. By specifying its premises in the famous Lüth case decided in 1958, the Court ended a decade-long passionate discussion among German scholars and courts about the scope of the then newly adopted Basic Law (1949).Footnote ⁵⁸ The Federal Labour Court took a leading role in the discussion, asserting that the constitutional rights, protected in the Basic Law, were directly applicable to relations between the employer and employees.Footnote ⁵⁹ Concerned with the fact that ‘basic rights shall be binding for the legislative, executive and judicial powers’, the Federal Constitutional Court did not accept the standing of the Federal Labour Court. Yet, more importantly, it did not fully reject the idea that fundamental rights could have produced effects on the relations between private parties. The Court adopted what is now called the indirect horizontal effect model, in which constitutional rights were understood as legal codifications of objective general values immanent to the whole legal order, including private law:

In short, although the Drittwirkung doctrine accepts that basic rights oblige only state organs, it nevertheless holds that: (a) all private law is directly subjected to constitutional rights and is invalid if it conflicts with constitutional rights, and (b) it is not on private actors to conform their actions with constitutional values, but rather, it is on judges, bound by the basic rights under Article 3 of the Basic Law, to consider constitutional values when interpreting private laws.Footnote ⁶¹

The German indirect horizontal effect model, with some variations, is also followed in Canada. Like Germany, Canada also supports verticality when it comes to the effects of the Charter of Fundamental Rights and Freedoms on legislation.Footnote ⁶² Yet the Supreme Court has distinguished between the constitutional rights and constitutional values embodied in the Charter, allowing constitutional values to influence the entire legal system, including private law, when ‘private litigant disputes fall to be decided at common law’.Footnote ⁶³ This means that the principal role of the rights embodied in the Charter is to protect citizens against the government, but the courts may ‘apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Charter’.Footnote ⁶⁴ Therefore, unlike in Germany, not all private law in Canada is directly subjected to constitutional review for its inconsistency with the Charter, but only common law, when the courts should check its consistency with Charter values (not rights). This solution directly derives from the separation of powers principle in the (British) common law tradition, under which the courts are allowed to develop common law in parallel with the Constitution.Footnote ⁶⁵

Compared with Germany and Canada, the US is an outlier in the world of horizontality, although it adheres to the same starting position – the constitutional rights – as they oblige only state actors. Influenced by the strong liberal tradition, in which individual autonomy is highly cherished in all law, not only that the constitutional text refers explicitly to the obligation of states when conferring rights (No state shall…), but also that the US Supreme Court has established the controversial ‘state action doctrine’, which, arguably, precludes the influence of constitutional rights in private law. Therefore, in the original case from 1903 – The Civil Rights Cases – in which the doctrine was born, the US Supreme Court held that since they apply only to government actions, the Thirteenth and Fourteenth Amendments are not an appropriate basis for Congress to pass laws protecting African-Americans from discrimination.Footnote ⁶⁶ The Court emphasised that constitutional rights shielded by the Fourteenth Amendment were so designed that it had only negative effects – they imposed duties of restraint only on federal or state governments whose duty was to protect them only from actions taken by the state. However, the Court made an exception regarding the Thirteenth Amendment, arguing that ‘Congress may probably pass laws directly enforcing its provisions, yet such legislative power extends only to the subject of slavery and its incidents […].’Footnote ⁶⁷

The issue of who the state is for the state action doctrine has extended the reach of this doctrine to private parties providing that their conduct can be in different ways attributable to the state.Footnote ⁶⁸ However, such situations are limited because the US Supreme Court has refused to find state action under many strands, apparently without clear criteria.Footnote ⁶⁹ On the other hand, for those who are committed to debating the state action doctrine, a key concern is either which law is subject to constitutional scrutiny or whether courts, as state actors who enforce those laws, must be subject to constitutional rights scrutiny. Thus, focusing on the courts, the US Supreme Court itself ruled in Shelley v. Kraemer that it was unconstitutional for the courts to grant relief to enforce a racially restrictive covenant because this would constitute a state action under the Fourteenth Amendment.Footnote ⁷⁰ Stephen Gardbaum even claims that the US adheres to the horizontal model when viewed through a comparative lens, as all law is fully and equally subject to constitutional rights scrutiny.Footnote ⁷¹ Nevertheless, the dominant position in the US is still that the Constitution limits the application of constitutional rights to public law. I hasten here to say that in cases involving constitutional rights infringements in a digital context the US Supreme Court has not shown any intention to change this position.

4.3.1 Is the Internet a ‘New Free Marketplace of Ideas’ Immune to Constitutional Review?

There are several reasons why freedom of speech deserves special status in constitutional democracies. First, freedom of speech essentially contributes to social progress and the moral and intellectual development of individuals.Footnote ⁷² Second, without citizens being free to express, deliberate, and accept different ideas, there is no democratic government.Footnote ⁷³ Third, freedom of speech is indispensable for establishing the truth: in the famous words of Justice Oliver Wendell Holmes, truth should not be regulated, but determined in the ‘marketplace of ideas’.Footnote ⁷⁴

Probably the world’s best-known free speech clause is embodied in the US First Amendment. In case law, it is firmly established that the First Amendment does not permit the government to engage in a viewpoint-based regulation of speech without a compelling governmental interest, such as averting a clear and present danger of imminent violence.Footnote ⁷⁵ Compared with the US, where the First Amendment provides almost an unlimited right to freedom of speech, the German Basic Law and the Canadian Charter, despite a presumption in favour of freedom of speech, offer mostly a qualified right, subject to limitations for different reasons. These different approaches have already been transplanted online. German and Canadian case law indicates that transplantation has followed the horizontality route. The American case shows that the US denied the horizontal applications of constitutional rights in the online context following its position in the offline world. Consider the following.

4.3.2 Horizontality in Service of Privacy-Related Rights in Online Contexts

Privacy-related rights are also frequently exposed to gross infringements in the digital environment. For the time being, all we know about the horizontal effect of privacy and privacy-related rights in the digital context mostly comes from the EU and the pioneering practice of the CJEU.

It has been quite a while since the constitutional nature of EU primary law and the constitutional value of rights in its legal order were emphasised.Footnote ¹⁰⁶ The horizontal effects of certain equality-related rights were announced already in the Rome Treaty adopted in 1956. This came to the surface when the CJEU in 1976 ruled that Article 119 of the Rome Treaty, ensuring the principle of equal pay for male and female workers for work of equal value, obliged not only the Member States to whom the provision was directed but also private employers.Footnote ¹⁰⁷

In EU law, considerable attention has also been given to the horizontal effects of the EU Charter of Fundamental Rights. Although it has the same legal effect as the EU Treaties, the horizontal effect of its provisions has provoked much debate. The CJEU implicitly confirmed that, when applied within the scope of EU law, the Charter could create obligations for private parties if its provisions grant a legal right for an individual and not just a principle.Footnote ¹⁰⁸ This finding seems reasonable, considering that the Charter has the status of EU primary law. The ultimate confirmation came in 2018 when, in four decisions, the CJEU established the direct horizontal effect of several Charter rights in disputes between private parties, specifically the right to non-discrimination, certain rights related to fair and just working conditions, and the right to an effective remedy and a fair trial.Footnote ¹⁰⁹

However, even before its 2018 revolutionary offline case law, the CJEU opened the door to the indirect horizontal application of fundamental rights online, in particular, to privacy-related rights, embodied in Articles 7 and 8 of the Charter. In the Google Spain case, it articulated the right to be forgotten, relevant in the framework of the right to data protection and freedom of expression and information.Footnote ¹¹⁰ The case involved the interpretation of the Data Protection Directive in the dispute between Google and the Spanish data protection agency. It concerned the removal (delisting) of personal data available online. Among several questions addressed to the CJEU, important for this discussion is the question of whether, under the Directive, an individual who does not wish to make personal data available to internet users has the right to address a search engine directly and ask it to delist the personal information published on third parties’ web pages.Footnote ¹¹¹

The CJEU resolved this question by famously concluding that if the activity of a search engine significantly affects the fundamental rights to privacy and the protection of personal data, the operator of the search engine ‘must ensure […] that the guarantees laid down by the directive may have full effect and that effective and complete protection of data subjects, in particular of their right to privacy [….]’.Footnote ¹¹² Although the said Directive did not explicitly create the right for an individual to request the data processor to remove their personal data, the Court stressed that the Directive had to be interpreted as if it included such a right because of the effects the rights to privacy and the protection of private data, guaranteed in Articles 7 and 8 of the Charter, produced on the Directive.Footnote ¹¹³ Consequently, the CJEU concluded that, ‘the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public by its inclusion in such a list of results’.Footnote ¹¹⁴

Although certifying that the Charter produced an indirect horizontal effect on EU secondary legislation, the CJEU nevertheless recognised that under the given circumstances, the legitimate general interest of the public in accessing information also existed. Balancing thus became necessary: ‘A fair balance should be sought in particular between that interest [the legitimate interest of the public in accessing information] and the data subject’s fundamental rights under Articles 7 and 8 of the Charter.’Footnote ¹¹⁵ The burden of the balance was put on the search engines, which, according to the CJEU, qualified as personal data controllers within the meaning of the Data Protection Directive and ‘within its responsibilities, powers, and capabilities’.Footnote ¹¹⁶ According to this view, the CJEU acknowledged that these rights override, as a rule, the economic interest of the search engine operator and the general public’s interest in having access to that information.Footnote ¹¹⁷

Therefore, the ultimate outcome of the case carries the particular interest of the individual to have personal data delisted, the general interest of the public in accessing information, as well as the obligation of the search engine (e.g., Google), to balance the relevant rights when assessing users’ requests to delist personal data from search results. The broader point here is that the Google Spain case exemplifies how consequential the indirect horizontal application of the Charter can be in practice, as the Court made both the Charter and the said Directive applicable in disputes between private parties.Footnote ¹¹⁸ Moreover, via its readiness to vest the Charter’s privacy-related rights with horizontal effects, the CJEU reaffirmed another landmark decision on digital privacy in Schrems I – that the Data Protection Directive, since it regulates the processing of personal data and is liable to infringe fundamental freedoms, in particular, the right to respect private life, must always be interpreted in light of the Charter’s rights.Footnote ¹¹⁹

5.2.1 Similar Aspects in Dissimilar Cases

The discussed initial evaluation could be regarded as a typical process in everyday legal practice. However, it is worth remembering that these issues should not be confused with novel legal challenges posed by the cases of focus here. Otherwise, such confusion risks that the conventional tools of legal reasoning be neglected, where they are actually appropriate.

On 19 April 2018, the Court of Appeal of Ireland delivered a judgment in Muwema v. Facebook Ireland Limited that is an important reminder in the context of the initial evaluation.Footnote ⁷ This case involved a legal problem regarding a required standard of proof to issue an order of disclosure. The order was requested against the operator of a social network – Facebook – to disclose the identity of its user. The respondent protested this request, arguing that the user in question would be exposed to arrest and ill-treatment at the hands of the authorities in Uganda whom he opposed. The court provided grounds for the solution of this issue in earlier precedents, which not only did not have the element of the digital space but was also established in rather different cases. The court mentioned Foley v. Sunday Newspapers Ltd (2005) regarding an injunction to prevent the publication by the defendant of an article that, if published, the plaintiff considered would place at real and serious risk his right to life and/or right to bodily integrity.Footnote ⁸ Another case was even more distant from the relevant circumstances and was decided in the context of the surrender of a person to Poland under a European arrest warrant. However, all these cases included the same sort of question of balancing one person’s right to life and bodily integrity against other concepts guarded by law (e.g., another person’s freedom of expression). The court relied on the aforementioned precedents and stated that ‘there is no reason why the court should not require the same standard of proof in relation to an assertion by the plaintiff seeking a Norwich Pharmacal order where the court is required to carry out a balancing exercise between competing constitutional rights’. This common denominator can be formulated as follows – where different cases involve the balancing of the same individual rights, this connection can be sufficient to make these cases comparable both in the digital and physical context.

The most important takeaway from this example is that legal provisions might be relevant even if they do not contain a typically applicable legal rule. There are undoubtedly numerous examples, which confirm that in legal practice judicial precedents are not only used in cases where all material facts coincide but also where the cases are quite different. The Muwema case confirms that the explored class of cases cannot be held as an absolute exception of this tendency – going online does not cancel the ruling.

5.2.2 Sometimes: Not Merely a Difference but a Wholly Different Affair

Reasoning algorithms in the preparatory stage must consider a probable scenario where no applicable rule can be found in statutory law or judicial precedents. This type of crossroad leads to one of two paths: either courts (a) recognise there is no regulation, or somehow (b) justify the application of an old rule, which was not initially intended for such cases.

Naturally, courts can be inclined towards the second path, since the first can require the creation of new rules that is only in the power of parliaments, not the judiciary. However, the first path may not require this and can lead to an outcome that is strongly dependent on one of these principles – ‘everything that is not forbidden is allowed’ or ‘everything that is not allowed is forbidden’. A particular outcome might vary according to the type of legal issue. If it is a matter of criminal liability, the defendant is acquitted. Similarly, a new type of commercial business cannot be treated as requiring a prior licence (and be seen as illegal) if it conceptually differs from the licensed form of commercial activities. However, in cases of a civil dispute between two private persons, different interests must be balanced – the court cannot refuse to resolve the dispute because there is no legal rule.

The last scenario applies usually in cases where courts might have to create a new rule. One case containing factual circumstances that do not have any analogical counterparts in the non-online environment is the Google LLC v. Oracle America, Inc. case.Footnote ⁹ It was resolved by the US Supreme Court judgment of 5 April 2021. This case concerned copyright infringement when a certain type of computer code was copied – the copied lines of code were part of a user interface for programmers to access prewritten computer code through the use of simple commands. As a result, this code is different from many other types of code. The copied lines are part of a tool called an Application Programming Interface. The court found applicable law in general provisions regarding copyright infringement, but it decided to distinguish the case from others regarding copying computer code – this unique type of code was treated differently. One of the reasons was that it was widely used by programmers and, given how much the programmers had invested in learning it, enforcement of copyright would limit the future creativity of new programs. Therefore, the enforcement would interfere with rather than further the copyright’s basic creativity objectives – the ‘copyright supplies the economic incentive to [both] create and disseminate ideas […] and the reimplementation of a user interface allows creative new computer code to more easily enter the market’. This shows that the US Supreme Court took into consideration the social impact of the decision and objectives of the law, but, most importantly, this case demonstrates that even though judicial precedents could be found that, at first sight, appeared applicable, the Court decided to distinguish the case and, in a way, create a new rule.

5.5.1 Established Theory

It is an understatement to say that some research has been conducted on legal reasoning or the impact of the internet: there is a plethora of academic publications tackling particular legal issues in the digital space. Among other things, they include artificial intelligence (AI) liability,Footnote ²⁰ data protection and privacy,Footnote ²¹ copyright law,Footnote ²² and others. However, very few address the issue of legal reasoning in this context. Naturally, a substantial number of findings on this topic are applicable to disputes in the field of modern internet technologies. It would be beyond the format of this publication to list all of the relevant insights on legal reasoning, but some of them are noteworthy because they focus on the matter of refreshing the law.

In legal disputes, the question ‘what difference does going online make’ (if at all) can be particularly hard to answer when judicial precedents can be found and they appear to come from similar cases. Often most of the material facts can be similar, except the online factor. Legal literature provides some insights into when precedents must be followed and when departed from.

Changes in the social, moral, and economic contexts are among the most widely mentioned reasons to overrule a judicial precedent.Footnote ²³ Other, more detailed, justifications for a departure from precedents by overturning them include subsequent changes or developments in the law that undermine the rationale of the earlier decision; a need to bring a decision into agreement with experience and with facts newly ascertained; the precedent can be shown to have become a detriment to coherence and consistency in the law; a mistake exists in the precedent; the precedent is unworkable or badly reasoned; the departure can be justified by the possible significance of intervening events or the possible impact of settled expectations;Footnote ²⁴ and where there are serious and objective reasons and where ‘the new solution better reflects the ratio legis, changed circumstances or altered legal views’.Footnote ²⁵ In summary, it can also be said that overruling a precedent, when deciding a case based on how it was resolved earlier is suitable for the former, but not the present situation, and in light of new circumstances, the same empirical results that were reached in the precedent case cannot be achieved in the present case using the same measures. Every time we consider a departure from a precedent, it is useful to evaluate the role of the judicial precedent’s prerequisites in the particular case – how strong could the legal expectations have been, could the departure have been predicted, and so on.Footnote ²⁶ Chris Reed is one of the few authors who have analysed in depth the issue of the legal significance of the internet (as a factor requiring different legal treatment).Footnote ²⁷ In his paper ‘Online and offline equivalence: aspiration and achievement’, Reed lays down insightful observations on when the online factor is sufficient for a different legal treatment and proposes a methodology for the rules of behaviour regulation: (a) identifying the various interests that the rule needs to take into account; (b) analysing the ways in which the new rule is likely to affect those interests; and (c) evaluating the resultant balance of interests to decide if it is equivalent to the offline situation.Footnote ²⁸ Although this test of interest-balancing is undoubtedly valuable for legal reasoning, the judicial judgments adopted after Reed’s paper was published display a large set of supplemental modes or reasoning. In addition, the question of whether going online makes a difference is sometimes followed by the question of whether going online still makes a difference (or not). This issue is presented in the following section.

5.5.2 Differences That Vanish

Sometimes ‘going online’ makes a difference that is not permanent. Established precedents on the matter of a certain online phenomenon can become outdated if the underlying reasons for those precedents are no longer applicable because of technological developments. So, an important question to keep in mind is how judicial precedents on this matter function. It was already mentioned that with important changes precedents might become obsolete, which is partly illustrated by most of the cases presented in this chapter.

The presented cases show the significance of the purpose of the disputed object or actions and the significance of the actual extent of the harm from the act under consideration. But the theory on precedents in many of these cases provides an important notice – transferring to a digital environment is not the last step. Going online often does make a difference but after we are there, developments of modern technologies can continue making changes.

In the Pihl v. Sweden case,Footnote ²⁹ the ECtHR found that an application regarding an alleged failure by domestic authorities to hold a service provider responsible for the content of third-party comments on a blog was inadmissible. The applicant included a complaint that, although a defamatory comment on the internet was removed and a new post was added on the blog by the association stating that the earlier post had been wrong and based on inaccurate information, according to the applicant, it was still possible to find the old post and the comment on the internet via search engines. The court responded to this by pointing out that ‘the applicant is entitled to request that the search engines remove any such traces of the comment (see the ECJ judgment of 13 May 2014, Google Spain and Google, no. C-131/12, EU:C:2014:317)’. This offers room to speculate what would the ECtHR’s view be if this case had taken place before the ECJ established the right to be forgotten. There cannot be a definitive answer, but if we strictly follow the rules of formal logic, this alternative hypothetical scenario should turn out differently (if there were no other decisive circumstances).

An even stronger example of the relevant developments is the case of Ashcroft v. American Civil Liberties Union, et al. 535 U.S. 564 (2002) presided over by the Supreme Court of the US. In this case the legality of the Child Online Protection Act (COPA) was reviewed. This act restricted publishing indecent material on the internet that can be harmful to children. One of the reasons mentioned in this case was a statement by the Court of Appeals that prior community standards jurisprudence ‘has no applicability to the Internet and the Web’ because ‘Web publishers are currently without the ability to control the geographic scope of the recipients of their communications’. It was argued that ‘COPA is “unconstitutionally overbroad” because it requires Web publishers to shield some material behind age verification screens that could be displayed openly in many communities across the Nation if Web speakers were able to limit access to their sites on a geographic basis’. The Court noted that ‘given Internet speakers’ inability to control the geographic location of their audience, expecting them to bear the burden of controlling the recipients of their speech, as we did in Hamling and Sable, may be entirely too much to ask, and would potentially suppress an inordinate amount of expression’. However, in today’s world there are numerous cases where courts impose restrictions on the content on the internet that confine it to certain geographic locations. Contemporary technology is much more capable of controlling the geographic scope of the recipients, which makes the aforementioned US Supreme Court’s reasoning in this Ashcroft v. American Civil Liberties Union case basically obsolete.

6.2.1 The Scenarios of Normative Transformation

The transfer of judicial ideas and norms by itself is a phenomenon that is detectable wherever and whenever there is a confrontation of two or more (more or less) established socio-judicial environments.Footnote ² Various scenarios are possible. The first concerns a situation where a certain normative-ideological regulatory framework is carried to another socio-geographic environment, but is countered by an existing framework of normative ideas and practices. This scenario can be labelled the socio-geographic transposition of law and can be illustrated by the process of imposing ‘colonial’ supremacy upon territories of the indigenous or more established but different cultures. Saliha Belmessous has shown that colonisation of indigenous people in the Americas, Africa, Australia, and New Zealand was countered not only by force, but also by ideas and understandings of a law that should apply between people. She uses the expression of indigenous legal opposition to the European legislative framework and justifications.Footnote ³ From the perspective of legal scholarship, this opposition means contestation between ideas and procedures; that is, mechanisms for how the ideas are made to govern. Non-coherence theory has the assumption that there is no or only a minor contestation because contestation usually leads to the disappearance of one competing ideology. Yet such contestation may appear in time, when the normative power of the digital domain grows through self-normativity.

The second scenario concerns regime change, leading to the ideological transposition of law. Legal scholarship dominated by comparative methodology does not conclusively show the possibility of the full replacement of established legal ideologies and structures by an incompatible set of ideas, leading to an entirely different understanding of how the law should govern society.Footnote ⁴ The overthrow of the Russian tsarist regime by the Bolsheviks led to the enactment of socialist ideology, but the administrative and court systems were largely functionally retained. The French Revolution led perhaps, at least initially, to even broader chaos in terms of laws and procedures.Footnote ⁵ Regime change may go hand in hand with the adoption of legal norms from a regime falling into the same ideological paradigm.Footnote ⁶ The common characteristic of regime change is the generic variance of the legal framework before and after the change, where the variance can always be characterised by degree. Such a scenario would not make sense in the initial stages after the appearance of the digital domain, for the simple reason that there was no regime to be changed. But this does not exclude the possibility that the regime may have appeared in time, either in disguise or openly, which is then subject to the aspiration of regime change from the offline domain. Yet the reverse is also possible, namely the aspiration of the digital domain to trigger the legal regime change of the offline domain.

The third scenario concerns a situation where people and institutions enter unknown territory with their own discursive history, ideas, and values, but for one reason or another note that their regulatory and ideological equipment does not fully work. We can term this scenario the transposition of law into a normative carte blanche. This position might take for granted that the digital domain could have been characterised – in the early years – as such an empty sheet open to the transposition of normative regulation; that is, there were no countering normative forces, and the offline regulatory and conceptual framework should have appeared welcome in the online context. A deeper examination questions this predisposition for the reason of the inadequacy of protection thesis, which I have developed elsewhere to explain the element of novelty in human rights development.Footnote ⁷ This thesis claims that the development of new human rights is explainable through the recognition of the incapability of established human rights to provide adequate protection for certain groups in comparison with others, or that the novel contemporary conditions challenge the capability of an established human right to provide sufficient protection of an important social value. The common element of both reasons leading to the articulation of new human rights according to the inadequacy of protection thesis is contestation. Application of this thesis to the internet is at the root of questions about whether it is possible to provide protection in the online domain that is comparable to the offline by using concepts entirely placed in and originating from offline, or whether offline remedies can be effectively applied online.

6.2.2 Reflections on the Inadequacy of Protection Thesis

The inadequacy of protection thesis when applied to the internet is offline-morphic and practice-dependent. Offline-morphic means the view from the offline domain, which is analogous to when an animal rights lawyer projects her understandings onto other species and concludes that they exhibit behavioural patterns comparable to humans.Footnote ⁸

The inadequacy of protection thesis offers a practical lens through which to examine non-coherence theory. This thesis posits a dichotomy between online and offline protection, where frameworks deemed adequate in the offline world may prove inadequate online. This offline-morphic perspective, analogous to projecting human understanding onto non-human contexts, highlights the subjective nature of assessing the adequacy of protection in the digital environment. The practice-dependent aspect of this thesis emphasises empirical observation. The presence of contestation – detailed arguments regarding the compatibility of offline human rights norms with online realities – indicates a non-coherent image. The theory distinguishes mere disagreement from actual contestation, requiring a critical mass of actors recognising the inadequacy of the protection. This contestation is manifested in various ways, including conflicting categorisations of legal transposition processes (e.g., the direct/indirect and receptive/unreceptive models). This contestation also reveals the evolving and dynamic nature of the non-coherent image of digital human rights, as the discrepancy between online and offline frameworks is not a static phenomenon but is subject to change over time.

6.2.3 The Dual Nature Thesis

Discussions about the non-coherence theory of digital human rights have raised the question of how to position this theory in the framework of existing approaches to legal transformations. What is the novel aspect of this theory – when the topic of transfers has been known as long as different cultures have collided – can and has been asked. My response is through the dual nature of the human rights thesis. It says that differently from legal transformation approaches where one domain has to yield to another, the digital and non-digital coexist in parallel, using similar human rights words, which carry a meaning in variation. The non-coherent image of human rights in the digital domain does not appear immediately and develops over time. It becomes evident once attempts to find in the digital domain an almost analogous image from the non-digital human rights system have proven illusory. The theory of non-coherence can explain this through the concept of the multi-stakeholderist veil thesis and the weakness of the sameness of rights doctrine.

6.2.4 The Multi-stakeholderist Veil Thesis

Multi-stakeholderism of internet governance, as formulated by Joanna Kulesza, is ‘a distributed policymaking model based on the voluntary cooperation of key actors, usually identified as: states, business, and civil society, operating “in their respective roles” through “rough consensus and running code”’.Footnote ⁹ For more than one party to connect, a genuine willingness from both sides is needed, otherwise the logical sequence of rhetorical functions comes to a standstill. In the digital human rights landscape it can be viewed as an attempt to incrementally transpose the offline human rights framework into the digital domain. Multi-stakeholderism as an end result in itself carries primarily non-regulatory aspirations, such as an advocacy tool for civil society or ‘whitewashing’ the aspirations of stakeholders who are more equal than others.Footnote ¹⁰

This thesis is inspired by the various transposition scenarios described earlier. The rise of the internet in the late 1990s and early 2000s can be characterised by the expansion of technological horizons, overshadowing the absence of internet-specific regulation, thereby assuming that the law offline as we know it can be easily transposed to the digital. This was the period of transformation to carte blanche. The recognition of the unclear image led to the ideological transposition through the multi-stakeholderism scenario, where co-creation and dialogue were viewed as arriving at a clear image, while still relying on the conceptual and procedural building blocks from offline. In parallel, the online community construed its own understandings of human rights in the digital domain, either implicitly or explicitly intending to conceptually counter the offline framework. By the time the limitations of the multi-stakeholder approach became evident, the only scenario left was the rivalry between competing regulatory frameworks; that is, between the horizontal and vertical governance models. This condition of regulatory uncertainty and proliferation has an axiomatic effect on human rights in the digital domain, which can be viewed as an element of non-coherence. It has to suffice to say at this point that multishakeholderism as a holistic approach applied to reconcile the non-digital and digital domains has failed. Non-coherence has become a permanent condition of the coexistence of human rights in the digital and non-digital domains. Multi-stakeholderism is no longer needed.

6.2.5 About the Sameness of Rights Approach

With some imagination, it is possible to cite the claim of sameness from the Geneva Principles in 2003.Footnote ¹¹ This result of an effort for which there are no traveaux preparatoires, that lacks argumentation in support of its claims, and is thus representing a clear example of an instrument of faith. It reaffirms ‘the universality, indivisibility, interdependence and interrelation of all human rights and fundamental freedoms […]’.Footnote ¹² One can say that such a statement is not a full acknowledgement of the idea of sameness, but it conveys the impression that human rights are not domain-dependent. Then it took almost ten years to reach an expressis verbis statement of the sameness in an international instrument. This is the United Nations (UN) Human Rights Council resolution from 29 June 2012, which ‘[a]ffirms that the same rights that people have offline must also be protected online, […]’.Footnote ¹³ Sometimes the idea of the sameness does not appear as a direct statement, but is deductible from the context. Take for example the UN Human Rights Committee’s General comment No. 34 to Article 19 of the UN General Declaration from 2011.Footnote ¹⁴ This comment acknowledges in paragraph 15 the substantial change in communication practices around the world owing to information and communication technologies. And yet implicitly it is based on accepting full transposition of human rights principles from offline to online.

It may be sufficient here to point to this idea’s ubiquity on the basis of the commendable work of others. For example, Dror-Shpoliansky and Shany propose the normative equivalency paradigm, having shown how in a series of resolutions the Human Rights Committee and the General Assembly ‘have reiterated the notion that human rights apply in the digital “online world” as they apply in the “offline world”’.Footnote ¹⁵ The normative equivalency, as they are asserting, contains a major flaw, which is about considering ‘digital technology as a new tool or arena for exercising offline rights or governmental powers, as opposed to a conceptualization of digital space as giving rise to new human condition and governance domain’.Footnote ¹⁶ This view represents non-coherence between digital and non-digital domains in a narrow sense, not encompassing well-established rights from the offline domain, such as the right to privacy, and covers the so-called second generation rights.

I have raised two main objections against the doctrine of the sameness of rights. The first objection is from relativity and the second objection is from practicality. The objection from relativity is related to the basic or fundamental building blocks of human rights. There are certain ideas that are difficult to justify through explication, and even then, the element of belief in something remains relevant. For example, take the idea of the universality of human rights. Is this a premise that can be verified through rational argumentation, or is this the result of discursive, political, and judicial practices? But its importance is evident from asking what would happen to the suggestion of the omnipotence of human rights if the idea was given up. The sameness idea carries similar connecting and rhetorical force. In today’s human rights discourses, policies, judicial judgments, and civil society approaches, in other words, everywhere, any answer to the question of whether human rights offline and online are the same or not has far-reaching consequences. An affirmative answer means coherence of content and leads to the subsequent question of the breadth of non-coherence in enforcement instruments. However, if the negation of the sameness idea could claim validity as a general principle, then we can say that human rights online do not exist in a similar fashion as (we are accustomed to know them) in the offline domain. This leads us to say that the theory of non-coherence is one of relativity.

The objection in practicality terms is articulated by the advocacy group Article 19. This group translated the reaffirmation that ‘the same rights that people have offline must also be protected online’ in questions of practicality. It says that unless greater priority is placed on addressing violations and changes to law and practice, this statement of sameness is no more ‘than words just written on paper’.Footnote ¹⁷ The non-coherence theory explains this image by suggesting that the sameness of rights remains at the highest level of generality, expressed in words only, and starts to evaporate once we enter the sphere of more detailed content and enforcement. There continue parallel roads with occasional crossings, to use a figurative expression.

6.2.6 Double Nature of Privacy

To give a robust example of the coexistence of the non-coherent concepts of rights, it can be shown that privacy offline exhibits different features to privacy online. The formulation of the right to privacy in the contemporary era is widely credited to Warren and Brandeis’s formulation from 1890 as an interest ‘to be let alone’.Footnote ¹⁸ Online privacy exhibits the opposite, namely, an interest not to be let alone. I have explained these opposites through fundamental differences of entry into non-digital and digital domains. We enter the non-digital domain involuntarily. This is the existentialist viewpoint, Jean-Paul Sartre’s view that we are thrown into freedom, yet we do not choose to be free.Footnote ¹⁹ It can be said that the right to privacy in its original manifestation is part of the existentialist ‘package’, which we may or may not choose to utilise. The entry into the digital domain is different and carries both voluntary and involuntary elements. Voluntary entry is the result of the conscious choice to use the digital domain for social communication, obtaining information, interacting with official government structures, or accessing vital services from private providers, such as financial or medical sectors. Involuntary entry happens despite one’s position in regard to the digital domain and is connected to e-state and blockchain technologies, which are widely used to maintain official records of events and persons. A few more sentences are in order to express these differences in more detail.

Voluntary entry is related to the interest to exhibit oneself in the digital domain in the most suitable manner. It is not accompanied by the positive validity of one’s image but is triggered by what one wishes to put forward and at the same time hide. Such a digital image has been termed the digital identity. Michalkiewicz-Kadziela and Milczarek have noted that ‘human identity on the internet functions on completely different terms than outside it. The internet gives unlimited possibilities of creating subjective elements of one’s own identity, but it also allows a change of objective elements’.Footnote ²⁰ There are warnings from policy organisations that digital identity does not fit into the framework of human rights, and it entails a threat leading to totalitarianism.Footnote ²¹

Involuntary entry into the digital domain is caused by the growing reliance on e-solutions by public and private authorities offering essential services. It is practically impossible to avoid that various digital surveillance mechanisms record us under Big Data, and that financial or medical institutions record our personal information. Here it is impossible to raise the interest of being left alone, and the only claim is related to requesting that the data be accurate through the newly emerged right to erasure.Footnote ²² Once someone enters involuntarily into the blockchain system, their interest to be let alone becomes meaningless. As put eloquently by Sullivan, this is because of ‘considerable challenges in establishing not only that “I am who I say I am” but in establishing “I am not who the identity register says I am”’.Footnote ²³

At this point there is noticeable prima facie variance in the meanings of privacy offline and online. The variance is of such a degree that it should be more appropriate to refrain from the usage of the expression ‘privacy’ for the online environment. Non-coherence is centre stage here. Because the digital and non-digital domains are interconnected and someone leads parallel lives in both domains, the right to privacy has meaning in the digital reality only so far as it enables the realisation of the interest to be let alone in the non-digital reality.

6.2.7 Concerns Related to Time

Among epistemological concerns the one related to time is of significance. In the non-digital domain, time can be regarded as a quality assurance for knowledge development, and as such is considered to have a positive effect upon human rights adjudication practice. This is because of the possibilities of reflection and discourse. However, the element of time becomes negativity in the digital domain because the time window for resolving online human rights conflicts appears immensely narrow. Liu articulates this aspect as follows: ‘Instead of valuing enduring or permanent truths (the temporal version of “high” knowledge), the digital age is preoccupied with information of much shorter durations – time spans plunging down to the diurnal rhythm of blog posts, the microseconds of a data packet’s TTL (time to live) […]’.Footnote ²⁴

Elsewhere, I have shown that shortness of time weakens one of the basic instruments for offline rights conflict resolution – balancing.Footnote ²⁵ Within any framework of judicial balancing, the courts have as much time as needed to claim a correct assessment of the concrete importance of conflicting rights and establish a proper balance. Conversely on the internet, the element of time is non-existent, as it would lead to the non-effective, retrospective recognition that rights were violated and proper balance was not achieved. Effective balancing online depends on swift decisions about whether certain information published overrides someone else’s concern about an intrusion into his or her private domain or other rights. Here time is a different concern from the understanding that with the passage of time the balance of interests may reverse; for example, when processing personal data.Footnote ²⁶ The shortness of time for reasoned decision-making can easily lead ultimately to the rejection of the rationality of online balancing.

A related doubt about whether balancing as we know it from the offline domain is at all possible in the digital domain is related to the matter of transparency. In online balancing via private entities, the transparency deficit of portals has been raised as a concern. This matter has been noticed for longer than a decade and there are calls to address it, but nothing has changed. For instance, the Council of Europe has stated that ‘Internet service providers should put in place appropriate, clear, open and efficient procedures to respond within reasonable time limits to complaints from internet users alleging breaches of the principles included in the foregoing provisions […]’.Footnote ²⁷ The UN calls upon ‘all States to consider formulating, through transparent and inclusive processes with all stakeholders, and adopting national internet-related public policies that have the objective of universal access and enjoyment of human rights at their core’.Footnote ²⁸ Similarly, La Rue encourages ‘corporations to establish clear and unambiguous terms of service in line with international human rights norms and principles […]’.Footnote ²⁹

The transparency deficit leads to a phenomenon that can be termed the legitimacy deficit in relation to balancing conflicting rights online. There is a growing academic discourse on the topic. Enguerrand Marique and Yseult Marique search for the source of legitimacy when private platforms set rules, monitor compliance with their own rules, and finally, apply sanctions.Footnote ³⁰ Noting the unilateral character of the ‘contractual’ horizontal relationship, they proceed to highlight that online portals give the ‘take it or leave it’ option without any possibility of negotiation, which in turn leaves the issue of the legitimacy of private content assessment undefined. It is suggested that new forms of legitimacy may develop based on public–private or hybrid interactions in setting and enforcing the regulatory order of the internet.Footnote ³¹ The legitimacy deficit is currently also apparent in a mathematical solution with practice-affecting aspiration, proposed by a multi-country scholarly community. For instance, a simplified model by Zufall, Kimura, and Peng uses the elements of privacy of information and nature of information, while the relevance of the intrusion is affected by time.Footnote ³² This solution isolates and polarises just one element from the conflicting rights to be balanced, because privacy of information is just one aspect of the level of intrusion into privacy, and nature of information is just one aspect allowing to determine the scope of the freedom of expression. The matter of algorithmic simplicity was to be expected and possibly characterises some or many solutions in practical use today.

These brief observations convey the perception that balancing online stands at significant variance from balancing online owing to legitimacy and transparency deficits. This is a clear phenomenon of non-coherence.

6.2.8 Some Additional Theses

Space available for this chapter also permits me to give a brief introduction to some additional theses connected to the non-coherence theory.

While exploring the notion of digital dignity, I have formulated the relativisation of core values thesis, which is a logical consequence of the recognition that in the digital domain there are no absolute human rights – the space allocated to this chapter allows me only to make this as an assertion, which means that everything becomes relative. This is because the basic norm in which offline stands at the bottom of the structure of human rights norms and principles itself becomes relative. Online dignity does not possess the feature of absoluteness that we are accustomed to accepting offline – as the core value written into the preambles of various human rights instruments. Here in the digital domain the key notion of dignity will be measured against ‘competing’ rights and values. But it would no longer correspond to the place of dignity in the offline human rights realm. In this case, the weight of dignity in the offline and online domains becomes non-coherent. This lies in the simple recognition that while dignity is a constant offline, it is relative online.

A novel aspect of the transfer of human rights images and ideas can be described through the ‘comfort in non-coherence thesis’. This refers to the simplistic perception that we prefer to operate in a realm that is at least to some extent familiar to us, as opposed to being confronted with a reality that is completely new, unfamiliar, and unpredictable. In such a reality, human rights ideas and concepts would not be meaningful, and the only reason for using human rights language would be to approach the new reality with tools that are familiar to us from the physical realm. The high level of variance in observations between non-digital and digital domains has become part of the mainstream in judicial discourse. For instance, Kettemann, Peukert, and Spiecker write in their 2022 edited volume on law in the digital space: ‘The book reveals that the number of specifically digital and global phenomena, which raise unique regulatory questions, is increasing, and that the applicable digital law is characterised by private ordering, transnational standardisation, economisation but at the same time by persistent and possibly deepening legal fragmentation’.Footnote ³³ Magarin lists structural concerns connected to limited free speech online in need of regulatory attention, among these being inequalities of access, power relationships among governments, private speech intermediaries and internet users, and the ways in which the internet’s architecture complicates effective regulation.Footnote ³⁴ All these observations are about non-coherence between the two domains under review. The comfort thesis says that we prefer to live in an environment of double standards and fragmentation instead of an environment where one sphere is devoid of any normativity, be it rational or non-rational.

6.3.1 Conclusion by the Artificial Intelligence ChatGPT

For the first time in my writing experience, I asked ChatGPT to write a short summary of my writing. I submitted the manuscript of the non-coherence theory of digital human rights, which is around 250 pages, and asked it to write a short one-page summary. The resulting text is as follows, which for the purposes of clarity is in quotation marks. The only curiosity of the text that follows – which I endorse for the purposes of knowledge sharing – is the choice of the only reference. Why ChatGPT chose Merleau-Ponty remains unknown.

‘The theory’s core premise is that the transposition of offline human rights law and practice to the online environment often results in a distorted, “non-coherent” image. This non-coherence stems from inherent discrepancies between the offline and online contexts, rendering the simple transferability of established norms problematic. The resulting lack of clarity regarding the application, realization, and enforcement of human rights online necessitates a re-evaluation of existing frameworks.

‘The non-coherence theory emerges from the observation that established human rights principles, their implementation, related obligations, and remedies for violations, as understood in the “offline” world, lack clear analogues in the digital sphere. The central question becomes: Do offline human rights rules and principles maintain their integrity online, or do they undergo modifications, distortions, or even cease to apply altogether? This uncertainty, termed “non-coherence”, arises when the transposition from the offline to the online context results in significant differences. While the terms “variance” and “distortion” are used interchangeably in this context, the critical distinction lies in the degree of difference. Minor variances may be acceptable, but substantial divergences indicate a distortion that may render the offline framework inapplicable or limit its scope in the digital context. This core concept challenges the assumption of the straightforward transposability of human rights from the offline to the online world. The theory anticipates potential objections, particularly regarding its theoretical underpinnings and the empirical evidence supporting its claims.

‘These models differ fundamentally in their approach: vertical governance relies on the state’s coercive power, while horizontal governance involves a partnership of diverse actors. Non-coherence theory is not concerned with the content of rights defined by these models but rather with the processes by which rights are established, enforced, and remedied. The simultaneous operation of these differing models illustrates the inherent unpredictability and inconsistency in the digital domain, undermining the notion of a unified and coherent human rights framework online. The coexistence and interaction between these models highlight the complex and often conflicting nature of online regulation.

‘Non-coherence theory also explores the ontological and epistemological dimensions of digital human rights. Ontologically, the theory questions the very existence of human rights in the digital space, posing the fundamental question: Do human rights exist intrinsically for sentient beings entering the virtual realm or are they conferred by some external authority? The theory argues that even under ideal discursive conditions, the transposition of human rights concepts from the offline to the online domain leads to a loss of meaning and clarity, akin to Merleau-Ponty’s concept of the subjective experience of colour.Footnote ³⁵ The theory’s focus is on how the offline image of human rights is reflected online, implying that even distorted reflections are meaningful for understanding the non-coherence. The inherent limitations of the practice-independent approach raise the question of the continued validity of applying non-positivist categories such as “human rights” to the digital domain, particularly given their possible transformation into merely “legal rights”. This analysis requires an acknowledgement of the inherent subjectivity and context-dependence of human rights interpretations, and the theory’s emphasis on how different frameworks interact within the digital environment highlights this further.

‘Epistemologically, the theory examines how knowledge about human rights is created, articulated, and enforced in the digital sphere. The theory identifies a polarisation of views regarding the coherence of online and offline knowledge creation processes. It argues that even if the means of knowledge creation differ, this does not necessarily invalidate the claim of normative validity, highlighting the role of processes such as communicative rationality and the “wisdom of the crowd” in generating credible knowledge. However, the theory suggests a relativisation of truth in digital human rights. What is considered truthful in one domain may not be considered truthful in the other, highlighting the paradigm-dependent nature of truth claims and questioning the universal applicability of non-positivist concepts. The theory concludes that the non-coherence of digital human rights is not simply a hypothesis but an inherent feature of the digital environment, requiring a reconceptualisation of human rights frameworks in this space. Further research would need to elaborate on the specifics of how competing online and offline normative systems interact and the implications for the future of digital human rights.’

6.3.2 Conclusion by the Author

The central conclusion of non-coherence theory is relativity. It shows how the division into absolute and relative human rights evaporates in the digital domain, and the human rights landscape becomes uni-layered. Basic norms that stand at the base of the human rights architecture in the physical world – such as dignity – become relativised and subject to balancing with other principles of a lower degree of generality. Balancing that constrains and directs human rights adjudication in the physical world assumes a completely different nature owing to transparency and legitimacy deficits. Relativity deprives human rights of their universal power. Competing systems of human rights can claim equal legitimacy, which leads to the validation of conflicting contents of concrete human rights bearing similar labels.

Yet there can be some commonalities that are applicable in any domain where human rights can exist, independently from their concrete content. These commonalities would have universal nature, which restores at least partially the idea of universality into the human rights landscape. Building on the analogy with quantum mechanics, it can be asked whether certain human rights exist in a shared state. This would mean, for instance, whether the right to privacy exists in a shared state with the right to freedom of expression; or whether the right to reputation – leaving aside the issue of whether such a self-standing right can be justified – exists in a shared state with the right of access to information. If the premise of such a shared state is correct, then it would follow that change in the scope and meaning of one right (particle) in this shared state leads to a simultaneous change to the opposite in the other right (particle). To give a concrete example, if the scope of the right to privacy is broadening, then the scope of the right to freedom of expression has to narrow. Such correlation would then be assumed. To give an abstract example from the other side, when we can measure the broadening of the right to freedom of expression, say in an online portal, we know without additional measuring that the scope of the right to privacy is narrowing. For human rights, the matter is related to, first and foremost, the relative weight of rights against one another. A new thesis can be advanced. I would term this the equilibrium of relative rights thesis, which says that for those rights existing in a shared state, when the relative weight of one right increases, the relative weight of another right has to decrease by the respective amount. Validation of the universality of the equilibrium of relative rights thesis could partly restore universality to the human rights discourse.

7.5.1 Lack of Internet Specificity?

One of the issues that arises in addressing the need for a law and policy response to the problem of internet addiction is whether there is a need for a specific response as the problem can be viewed as being part of a broader phenomenon of addiction to technologies or can be understood as being inaccurately named because it is not the medium of the internet but its problematic content (online gaming, gambling, pornography) that a person is addicted to that calls for law and policy measures regarding specific content, but not the internet in general.

Research suggests that internet addiction can be seen as one manifestation of the so-called technopanics where every new technology is met with fear about its pathological usage. As the internet is often accessed via smartphones, internet addiction analysis could benefit from smartphone addiction analysis. As smartphone addiction has similarities with TV addiction (similarities are most visible when TV and smartphone addiction are discussed as medical conditions),Footnote ²⁵ the problem of internet addiction can be usefully compared to TV addiction. As excessive use of a mobile phone (irrespective of whether internet features are used) has similarities with excessive use of the internet (specifically, the paradox of technology facilitating communication but leading to an erosion in social well-being),Footnote ²⁶ mobile phone addiction analysis could inform the analysis of the problem of internet addiction. In practical terms, the law and policy response to other technological addictions can have an indirect effect on internet addiction, which would suggest the need for a general rather than specific approach to internet addiction. The same would be true when addressing specific problematic content. As online gambling has similarities to gambling generally or as online pornography viewing is similar to viewing pornography using other media, addressing gambling addiction and pornography addiction would also tackle online gambling addiction and online pornography viewing addiction.

Research also shows, however, that certain features of the internet create favourable conditions for developing an addiction.

7.5.2 Features of the Internet Which Contribute to Addiction

The internet as a medium has features that reinforce problematic behaviour potentially leading to addiction. For example, features of internet-related gaming include the ease of accessing a game via portable or handheld devices, the possibility of engaging in competitions with other gamers, the perception of oneself in a manner that is more rewarding and less impacted by real-world issues, and the specific genres, designs, and content of the games that are played, including the possibility of financial rewards or achieving winning status. In online gambling, new types of gambling (in addition to the traditional games such as poker, casino games, and sports betting) are available online, and online gambling is more accessible than gambling in the real world. Online shopping can be considered more addictive than shopping in the real world because e-commerce provides a range of potential addictive features, such as immediate product availability, anonymity, easy access, and affordability.Footnote ²⁷ Pornography viewing has expanded substantially in the era of the internet, likely because of specific aspects of the internet (relating to anonymity, affordability, and availability).Footnote ²⁸

7.5.3 Increased Vulnerability Online

Everybody using the internet is subject to increased vulnerability. Two aspects are particularly important. First, every user of the internet is vulnerable to internet platforms, especially large ones, because of the power the platforms often have in defining, interpreting, and applying the rules governing online matters. Second, everybody is exposed to the possibility of technological vulnerabilities owing to the large amounts of personal data available online, lack of clarity regarding the algorithms used by platforms, possibilities of targeting individuals based on their profile, and so on. These two features make everybody vulnerable and in need of protection against the platforms interested in gaining attention for their products and designing their products accordingly, without necessarily warning the users of the danger of excessive use or addiction.

At the same time, some groups of internet users are particularly vulnerable (such as children) and require special protection, which suggests that the law and policy response should combine measures aimed at the general protection of all internet users and specific protection of particular vulnerable groups.

7.5.4 Specific Vulnerable Groups

Only a minority of internet users develop addiction, but belonging to certain groups increases the likelihood of developing such an addiction.

European studies show that relevant proportions of the population suffer from internet addiction, particularly in young age groups. Internet addiction is associated with the male gender, younger age, mental health problems, and unfavourable social conditions.Footnote ²⁹ Research confirms the importance of gender, age, mental health issues, personality, and neuroscientific traits, as well as social factors as risk factors for developing an internet addiction.

In terms of gender, even though the male gender is a bigger risk factor (as shown, for example, in a study concerning the relationship between internet addiction and obesity),Footnote ³⁰ in some cases (such as explored in a study on cyber-victimisation and internet addiction where thirteen-year-old girls reported the highest proportions of both cyber-victimisation and electronic media communication problematic use),Footnote ³¹ females are more vulnerable.

Severe forms of internet addiction are more likely in people of a young age.Footnote ³² However, older persons are not immune to internet addiction, but the risk factors for older and younger people are different. Internet addiction for older individuals is strongly associated with obsessive-compulsive disorder and generalised anxiety disorder, whereas internet addiction in the young is strongest among those with ADHD and social anxiety disorder.Footnote ³³

In terms of mental health problems, research has confirmed that the occurrence of internet addiction in people with psychiatric problems is higher than in the general population. All substance use, early alcohol use, and smoking strongly indicate a high risk of developing internet addiction. Abuse of multiple substances is even more strongly associated with internet addiction. There is a high rate of internet addiction in people suffering from ADHD. Obsessive-compulsive personality traits such as rigidity, perfectionism, being dependent on others, and harm avoidance are common in problematic internet users, suggesting that an obsessive temperament may also predispose an individual to the development of an internet addiction.Footnote ³⁴

More generally, personality traits can be important. Research findings have shown that depression seems to be the strongest risk factor for internet addiction and the trait of optimism has a protective effect. In addition, the personality factor of extraversion was found to be associated negatively with internet addiction.Footnote ³⁵

Research suggests that neuroscientific traits can be important too. Recent studies suggest a neurobiological component for internet addiction. Anatomical and functional changes, genetic polymorphisms, and impairment of neurotransmitter systems have been found in brains of individuals with an internet addiction.Footnote ³⁶

Social factors, such as family life and parent–child relationships play a strong role in the development of persistent behaviours (e.g., gaming to escape parental conflict).Footnote ³⁷ Maternal depression is related to children’s internet addiction; in particular, mothers at graduate level or above, male children, and a child’s normal or better academic performance show the strongest relationship with child internet addiction.Footnote ³⁸

Furthermore, we should not overlook the legal requirement to be connected and the prevailing culture of connectivity as risks that may contribute to the development of internet addiction.

This outline of risk factors enables us to identify vulnerable groups characterised by one or more such factors. Law and policymakers should adopt evidence-based measures targeted at most vulnerable groups, primarily children, especially where other risk factors co-occur.

7.5.5 Specific Challenges: Conflicting Findings regarding the Harms and Benefits of Internet Usage

One specific challenge in trying to prevent and fight internet addiction is related to conflicting findings regarding the overall assessment of the harms and benefits of internet usage. The internet paradox – that the technology provides conditions for better communication but using it leads to worsening social interactions – is well known. Some researchers have suggested that online social interaction and ICT use are likely to undermine social bonds as well as decrease social capital at both individual and societal levels, arguing that the more time one spends online, the less one can spend socialising with others. On the other hand, others have found that digital media use is associated with an increase in interpersonal communication and community participation, and in turn may provide both bridging and bonding of social capital.Footnote ³⁹ The internet provides an important source of information and a precious channel for communication. More generally, it is considered to be a medium where human rights are exercised. Therefore, notwithstanding the risks associated with the excessive use of the internet, limiting access to the internet is frowned upon, as it limits opportunities to exercise human rights.

The possibility of different viewpoints on the harms and benefits of the internet practically results in a difference of attitudes of various government agencies based on their functions and relative interest in public health and economic value.Footnote ⁴⁰ This makes it difficult to promote a consistent approach regarding, for example, limiting supply of online products containing addictive features and limiting screen time in the process of education, among others.

Another challenge related to the use of online media is the lack of knowledge on how to safely use the internet. Knowledge gaps in the domain of digital media use may be more severe than gaps in uses of traditional media, given that meaningful internet use requires new skill sets, such as refined search strategies and critical approaches to evaluating content credibility that are less associated with using traditional media.Footnote ⁴¹ Recognising the addictive design of online products, applying protective strategies, and knowing where to turn for professional help when everything else fails are the skills that need to be taught to diminish the threat of internet addiction.

7.6.1 Public Health Policies: Comprehensive Approach

Given the predominance of health aspects in addressing PUI, one could expect health policy responses to internet addiction. At present, there have been limited public health interventions with regard to many forms of PUI, with the partial exception of online gambling disorder and gaming disorder. Public health approaches have been attempted in countries particularly affected by online gaming disorder, including South Korea, China, Japan, and Germany. Broadly in line with existing approaches to substance use disorders, these interventions have largely focused on (a) limiting supply, (b) reducing demand, and (c) reducing harms.Footnote ⁴²

Researchers note that the substance use disorders approach is suitable because internet addiction has similar clinical characteristics to, for example, an alcohol use disorder.

The public health model of alcoholism, which is composed of three risk factors (including host, agent, and the environment) can also be applied to excessive (or addictive) internet use. This differs from the medical model, which explains a disease mainly based on individual vulnerability. Under the public health model, public health policy interventions are necessary to reduce all the relevant internet addiction risk factors.

Furthermore, people using the internet can be grouped as regular users, users at the initial stage of the addiction process, and an addicted group experiencing clear addiction symptoms with various impairments in a wide range of areas. Similar to substance addiction, internet addiction should also be understood as a problem on a continuum. Therefore, public health policy interventions need to be adjusted to the severity of the internet addiction. Such a model has already been applied to alcohol and gambling.

Preventative education in combination with the public health promotion campaigns proposed in gambling addiction can be proposed as a primary intervention targeting the general population. Secondary interventions would implement screening and intensive prevention programmes using screening tools. Educating individuals who are most likely to encounter others with internet addiction problems and help them cope with their addiction is another form of secondary intervention. Tertiary interventions involve constructing an infrastructure to employ evidence-based treatment programmes, fostering addiction experts, and constructing a community-based aftercare system for relapse prevention.

The Korean public health policy response to internet addiction has largely followed the public health model described here, as it addresses various risk factors and is adjusted to different levels of the severity of internet use.

In response to the internet addiction problem, Korea established the Third Internet Addiction Prevention & Resolution Comprehensive Plan in 2016, led by the Ministry of Science, ICT, and Future Planning in cooperation with the Ministry of Culture, Sports, and Tourism (governing game contents), and the Department of Education, the Ministry of Gender Equality and Family, and the Ministry of Health and Welfare (governing youth protection services). Measures applied include education and group counselling at schools aimed at prevention, screening students and providing counselling for those identified as at risk, and psychiatric treatment for excessive gamers. Help is provided inter alia via Internet Addiction Response Centres in sixteen metropolitan cities, internet addiction counsellors in the forty-five Education District Offices, Excessive Gaming Healing Centres, the Rescue School (a short-term residential treatment programme), community-based Addiction Management Centres, and social service institutions. One of the institutional challenges is to ensure better collaboration and avoid overlap of activities conducted by different agencies. Owing to conflicting perspectives in regard to the public health risks and economic value of the digital media industry, there are different attitudes to internet addiction-related problems even in government agencies.Footnote ⁴³

The European Union (EU) also considers taking a comprehensive public health policy approach to address the problem of internet addiction. Public health policy options offered by researchers for consideration to the European Parliament (EP) include health promotion, strengthening health services available for internet users that engage in harmful use, and the creation of units to address the harmful use of the internet within various EU Commission Directorates-General and Member State ministries. Information campaigns can create awareness and help users to develop skills that prevent harm. Public recognition of internet addiction as a disorder is believed to encourage people to seek help. Strengthening health services means providing support for health professionals so that they are able to recognise cases of harmful internet use and offer clinical services. If internet addiction were to be recognised as a mental disorder, this would (a) enhance psychological and pharmacological treatment options (‘digital detox’) available to individuals affected by this condition, (b) facilitate reimbursement by insurance companies, and (c) increase the screening that could be undertaken for children with preliminary symptoms of internet addiction.Footnote ⁴⁴

7.6.2 Consumer Protection: Product Safety Standards

Loot boxes have been identified as an example of a problematic element of computer game design, which is akin to gambling and can potentially lead to addiction to gambling online. Some game designs resemble addictive designs of conditioning known, for example, from slot machines.

Loot boxes are subject to general national legislation on contracts and consumer protection. In addition, several national authorities have investigated the conditions under which loot boxes may qualify as gambling. With the exception of Belgium, the Netherlands, and Slovakia, no EU country has come to the conclusion that loot boxes fulfil their national gambling criteria. As a result, only those countries have so far taken or are considering taking regulatory steps to ban loot boxes. In those countries that have already banned them, this has led to the withdrawal of the loot box feature from games in these markets. In other countries, less invasive action has been taken including awareness raising and developing guidelines for parents and players.

As gambling belongs to the sphere of national competence, it has been suggested that the EU could approach the issue of loot boxes and problematic game design more generally from the consumer protection perspective.Footnote ⁴⁵

Qualifying loot boxes as gambling may not work also in those cases where loot boxes are just one element of chance in an otherwise skill-based game, which was the verdict reached by the Dutch Administrative Jurisdiction Division in overturning a fine for developers of the FIFA game,Footnote ⁴⁶ who had previously been fined €10 million over a failure to obtain a gambling licence to operate ‘Ultimate Team’ packs, which gave in-game players who pay for the packs access to an unspecified group of players they could add to their squad or onwards trade.Footnote ⁴⁷

The practice of marking the products as fit for a certain age based on inter alia its loot box feature is in line with the consumer protection rationale. Germany introduced such marking as of 2023.Footnote ⁴⁸

In 2023, the EP adopted a resolution on consumer protection in online video games in line with a European single market approach.Footnote ⁴⁹ The resolution calls for gamers to be better protected from addiction and other manipulative practices and stresses that children’s games must take into account their age, rights, and vulnerabilities. At the same time, it notes the enormous potential for growth and innovation in the video game sector and its need of support.Footnote ⁵⁰ The resolution contains specific proposals on how to enhance consumer protection in this field. It notes that aggressive commercial practices used in the manipulative design of some games are already prohibited under EU law (para. 15). It calls on the Commission to assess whether the current consumer law framework is sufficient to address all the consumer law issues raised by loot boxes and in-game purchases and, if not, to present the necessary legislative proposals. ‘These proposals should assess whether an obligation to disable in-game payments and loot box mechanisms by default or a ban on paid loot boxes should be proposed to protect minors, avoid the fragmentation of the single market and ensure that consumers benefit from the same level of protection, no matter their place of residence’ (para. 27). It suggests an ex-ante child impact assessment might be required from providers of online video games (para. 28). The resolution also calls on the Commission and the Member States’ consumer protection authorities to ensure that consumer law is fully respected and enforced (para. 48).

7.6.3 Vulnerable Groups Approach: Rights of the Child

Taking a consumer protection perspective and protecting children from the harm of loot boxes and other problematic video game design features is one example of the vulnerable group protection approach. Other examples of activities aimed at protecting children from internet addiction abound.

At the global level, the World Health Organization has been defining standards of healthy sedentary screen time for children of various age groups. Under its recent guidelines, for children under one year screen time is not recommended. For one-year-olds, sedentary screen time (such as watching TV or videos, playing computer games) is not recommended. For those aged two years, sedentary screen time should be no more than one hour; less is better.Footnote ⁵¹ On the other hand, medical research also suggests that with twenty-four-hour connectivity and when digital and social media technologies are an integral part of the experiences and identities of children and young people, it is the quality and nature of engagement rather than its quantity that determine inappropriate use of digital media or the internet.Footnote ⁵²

The need for an approach that enables the reaping of the benefits of internet use while avoiding the risks of its overuse has been highlighted by international human rights bodies both at the global and regional level.

The United Nations (UN) Committee on the Rights of the Child (CRC) in its General Comment on children’s rights in relation to the digital environment recognises that the digital environment affords new opportunities for the realisation of children’s rights,Footnote ⁵³ but also poses a risk of their violation or abuse (para. 3). It recognises health risks related to the use of digital tools but does not specifically identify the problem of internet addiction as a health issue. It does, however, admit the importance of a healthy balance of digital and non-digital activities and sufficient rest (para. 98), which resembles the rationale of public health policy interventions aimed at limiting screen time for those suffering from internet addiction. The CRC also recognises the need to address other risks that are related to internet addiction. Notably, the CRC admits that measures may be needed to prevent unhealthy engagement in digital games or social media, such as regulating against digital designs that undermine children’s development and rights (para. 96). Furthermore, the General Comment mentions the increasing importance of children gaining an understanding of the digital environment, including its infrastructure, business practices, and persuasive strategies (para. 105). These two provisions remind us of the internet addiction research into the problematic design of video games, such as loot boxes, as a result of which online gaming can lead to online gambling and develop into an addiction.

The Council of Europe, in its guidelines to respect, protect and fulfil the rights of the child in the digital environment,Footnote ⁵⁴ recognises that access to and use of the digital environment is important for the realisation of children’s rights and fundamental freedoms. Where children do not have access to the digital environment or where this access is limited owing to poor connectivity, their ability to fully exercise their human rights may be affected (para. 10). The Guidelines recognise some health risks related to the use of the internet – excessive use, sleep deprivation, and physical harm (para. 51) – but do not specifically identify internet addiction as a health risk. They do, however, recognise the importance of safety by design as a guiding principle for product and service features and functionalities addressed to or used by children (para. 54), and, despite the strong protection of the right of access to the internet, recognise the legitimacy of and encourage the development of parental controls installed in various products as a measure to mitigate risks for children in the digital environment (para. 54). The Guidelines also specifically recognise the problem of premature exposure to the internet (para. 55). States are expected to require the use of effective systems of age verification to ensure children are protected from products, services, and content in the digital environment that are legally restricted with reference to specific ages (para. 56) and to take measures to ensure that children are protected from commercial exploitation in the digital environment, including exposure to age-inappropriate forms of advertising and marketing (para. 57).

7.6.4 Right to Disconnect and Its Insufficiency

There is growing attention to ‘disconnection’ as a solution to digital technology overuse. Disconnection is a new area of focus for both tech and health and wellness industries, which develop and sell a wide range of digital well-being interventions, ranging from digital detox programmes to screen time monitoring apps to products that create physical barriers to use. These interventions are intended to help individuals achieve a ‘healthier’ relationship to their technology, and therefore stand in opposition to conceptualisations of ‘unhealthy’ overuse.Footnote ⁵⁵ Disconnection also features as a research question in new media studies.Footnote ⁵⁶ Researchers have acknowledged the existence of the so-called digital divide of disconnection as certain individuals and social groups lack the privilege to disconnect.Footnote ⁵⁷ Importantly, the right to disconnect has also become an object of law and policymaking.

According to Eurofound (the EU Agency for the Improvement of Living and Working Conditions), the right to disconnect refers to a worker’s right to be able to disengage from work and refrain from engaging in work-related electronic communications, such as emails or other messages, during non-work hours.Footnote ⁵⁸ This applies in the context of work and refers to one aspect of safe and healthy working conditions.

In January 2017, France passed a new employment law allowing workers in organisations with more than fifty employees to negotiate the conditions of a ‘right to disconnect’ from work after working hours. Article 55 under Chapter II ‘Adapting the Labour Law to the Digital Age’ of the Labour Code was introduced, aiming to protect workers against the problems associated with the increasing use of digital technology in the workplace.Footnote ⁵⁹ Scholars do not necessarily see this law as a solution to the problem of being required to be connected. Some consider that with the passing of this law, it would seem that the employee can no longer invoke this ‘right’ under the traditional conditions of waged labour, where it would be on a par with one’s unpaid or free time. Instead of protecting the employee, the law runs the risk of turning all our available hours into the time of (unwaged) labour, thus feeding into the very problematic it tries to oppose, a problematic that characterises our current ‘culture of connectivity’.Footnote ⁶⁰

Notwithstanding the lack of clear evidence that legislation on the right to disconnect effectively contributes to solving the problem of the requirement to be connected, some other EU Member States have also adopted or debated the need to adopt similar legislation. According to a 2021 Eurofound report, to date, Belgium, France, Italy, and Spain have legislation that includes the right to disconnect and in five other EU Member States (Finland, Germany, Lithuania, Slovenia, Sweden) policy debate on the right to disconnect was in progress.Footnote ⁶¹ In various EU Member States, the right to disconnect was also an object of company-level initiatives. In Germany, Volkswagen was reportedly the first company to implement a company-wide freeze on out-of-hours emails in 2012.Footnote ⁶² Moreover, the German Labour Ministry itself has also adopted policies regarding after-hours communication, in order to encourage other employers to follow suit. The ministry has banned any communication with staff outside working hours, except in emergencies, and implemented rules that do not allow managers to take disciplinary action against employees who switch off their mobile devices or fail to respond to communication after working hours.Footnote ⁶³

The EP adopted a resolution in 2021 on the right to disconnect,Footnote ⁶⁴ inter alia calling on the Commission to prepare a directive ‘that enables those who work digitally to disconnect outside their working hours’. This directive ‘should also establish minimum requirements for remote working and clarify working conditions, hours and rest periods’. Members of the EP believe that ‘workers’ right to disconnect is vital to protecting their physical and mental health and well-being and to protecting them from psychological risks’, requesting the Commission to submit a proposal for an act on the right to disconnect. In its EU strategic framework on health and safety at work, the Commission explains that it will ‘ensure appropriate follow-up’. The Commission admits that working remotely full time, which increased during the pandemic together with other remote-working trends, such as permanent connectivity, a lack of social interaction, and the increased use of ICT, has given an additional rise to psychosocial and ergonomic risks.Footnote ⁶⁵ Importantly, the EP resolution among risks posed by excessive use of technological devices mentions (in recital E) techno-addiction (along with isolation, sleep deprivation, emotional exhaustion, anxiety and burnout), which implies that the right to disconnect might also be instrumental for addressing concerns related specifically to internet addiction.

The right to disconnect is also included in the Declaration on Digital Rights and Principles for the Digital Decade signed on 15 December 2022 by the presidents of the EU Commission, the EP, and the Council.Footnote ⁶⁶ The preamble (para. 4) mentions that the EP called for a strengthened protection of ‘workers’ rights and a right to disconnect’. The main body of the declaration (para. 6) contains a commitment to ‘ensuring that everyone is able to disconnect and benefit from safeguards for work–life balance in a digital environment’.

Academic debate on the right to disconnect in the EU focuses on a possible need to redefine the rest period under the Working Time Directive to ensure that a person is entitled to be not only outside the workplace but also beyond the employer’s reach, to urge Member States to consider introducing the right to disconnect into their domestic law,Footnote ⁶⁷ or to do nothing as the issue can already be resolved using existing EU legislation or settled case law.Footnote ⁶⁸ The EU has the necessary competence to pass legal acts on the right to disconnect. Even if there is no enacted or proposed EU regulation that directly addresses the right to disconnect, Articles 153 and 154 TFEU could be the basis for the adoption of directives setting out minimum requirements, as well as supporting and complementing the activities of the Member States in the area of working conditions.Footnote ⁶⁹

Domestic legal standards related to the right to disconnect were also adopted or debated beyond Europe. On 2 December 2021, the Ontario government in Canada introduced the ‘Right to Disconnect’ policy in the Employment Standards Act of 2000. Employers that employ twenty-five or more employees are required to have a written policy on disconnecting from work in place for all employees. The Employment Standards Act of 2000 defines ‘disconnecting from work’ as ‘not engaging in work-related communications, including emails, telephone calls, video calls or the sending or reviewing of other messages, so as to be free from the performance of work’. This is not an exhaustive list, meaning that other forms of work-related communications can also fall under this definition. The goal of the right to disconnect law is to allow employees to disconnect from work and enjoy downtime. Ideally, the ability to disconnect from work will protect an employee’s mental well-being and avoid burnout.Footnote ⁷⁰ The Working for Workers Act was proposed by the provincial government in 2021 in response to concerns around burnout, particularly during the pandemic, when working from home meant lines between work and home blurred even further.Footnote ⁷¹

Although the right to disconnect may be seen as contributing to the prevention of internet addiction, it is of limited value for this purpose.

First, for those addicted to the internet, merely having a right to disconnect would not suffice to change their addictive behaviour patterns. In an exploratory qualitative study of professionals working in various industries in France, some participants indicated setting barriers to protect themselves from the negative side of being always hyperconnected. However, they felt it was not easy to overcome a technology addiction as it required willpower and wisdom to regain control of the technology. As not everyone manages to regulate it by themselves, some interviewees pinned their hope on the law as a way to help protect workers from the overuse of digital tools. Although almost every survey participant declared being in favour of the ‘right to disconnect’ legislation, they were not sure how the law could make them more productive. The study also revealed the importance of educative actions. Awareness campaigns and training sessions advising on how to use digital tools more productively and reminding workers of the benefits of disconnecting could help significantly.Footnote ⁷²

Second, research shows that being connected when required to do so (notably, for the purpose of studying) is less likely to result in an internet addiction than being connected during leisure time. Research carried out in Lithuania shows that for schoolchildren of all ages it is the length of screentime as well as internet activities specifically aimed at amusement that increase the risk of PUI.Footnote ⁷³ In north Tanzania, undergraduate students using the internet at the college were less likely to be addicted to the internet compared with those using it both at a hostel or home and college.Footnote ⁷⁴ Therefore, the right to disconnect, if its application was limited to the work context, would not be of use in those situations where internet addiction manifests itself when digital tools are used in other contexts.

This suggests that to combat the overuse of digital tools, more proactive methods, such as raising awareness of the dangers and the safe use of the internet, are necessary, and even being required to disconnect could be considered.

Arguably, the requirement to disconnect has already become a cultural requisite and a lifestyle component for some. Media researchers note the prevalence of the self-responsibility narrative, which now takes the form of the ‘responsibility to disconnect’ as a precondition to keeping up with digital society. This expectation of self-discipline also comes with a heavy moral component: Societal assumptions about what is healthy or good feed into a moral superiority for those who can dutifully disconnect and shame for those who cannot. By framing ‘failure to disconnect’ as a problem of willpower, feelings of shame and guilt are legitimised and even capitalised on as mechanisms that could be used to effect change. In doing so, disconnection is implicitly framed as an act of self-improvement.Footnote ⁷⁵ In the legal context, the requirement to disconnect has been attempted for schools in some countries where a ban on the use of cell phones was introduced, notably in France, the province of Ontario in Canada, and the state of Victoria in Australia.

Research shows that for most children across Europe, smartphones are now the preferred means of going online. This often means that they have ‘anywhere, anytime’ connectivity, with the majority of children reporting using their smartphones daily or almost all the time.Footnote ⁷⁶ One study has shown that the restrictions on the use of smartphones can have a positive impact on academic performance. Restricting mobile phone use can also be a low-cost policy to reduce educational inequalities.Footnote ⁷⁷

In France, the ban was introduced at the level of national legislation. Under the Code of Education as amended in 2018, schoolchildren are not allowed to use mobile phones or any other electronic communication at schools and during all school activities even if they are held outside school. Exceptions are allowed for teaching purposes and for children with special needs. The phone can be confiscated for a certain period if the rule is not followed.Footnote ⁷⁸ At the time of the ban, the French Education Minister mentioned the problem of screen addiction as a phenomenon of bad mobile phone use and talked about the role of the state in protecting children by means of education.Footnote ⁷⁹ In the state of Victoria in Australia, the ban on the use of mobile phones at schools was introduced in 2020,Footnote ⁸⁰ as a policy of the Minister of Education,Footnote ⁸¹ aimed at improving student performance and managing risks related to the use of technology, without specifically identifying the problem of addiction but mentioning that the use of mobile phones requires more and more of the user’s time. In Canada, the ban was introduced in the province of Ontario in 2019,Footnote ⁸² but not in Quebec after a debate leaving the decision for the management of individual schools.Footnote ⁸³ Similarly, in the UK and the US it is up to individual schools to set their own rules. In the UK, parents seem to support the idea of such a ban. In the US, the situation is different. Owing to the spate of school shootings, parents tend to want the reverse – the opportunity to contact their children to remain open. Reportedly, this was one of the reasons why a school cell phone ban in New York was overturned in 2015.Footnote ⁸⁴ Such variety of approaches shows that the problematic use of the internet among schoolchildren and the value of being temporarily disconnected is recognised, the bans on the use of the internet are not necessarily recognised as a necessary approach and even when such bans are introduced they apply only in certain situations, for certain people and not without exceptions. Finally, the role of education and educators in creating a culture of better managed use of the internet is acknowledged, which suggests that responsibility to disconnect or disconnection as a lifestyle can be taught.

7.7.1 Existing Norms at the Global Level

International human rights law already contains norms relevant for preventing and addressing internet addiction. The best interests of the child, which is one of the underlying principles of the UN system of the protection of the rights of the child, encompasses interests related to the safe usage of the internet. The fact that the UN Committee on the Rights of the Child has already addressed the issue of rights in the digital realm is important as it provides a basis for further interpretations of what it takes to ensure that children do not develop unhealthy habits when using the internet.

The right of everyone to the enjoyment of the highest attainable standard of physical and mental health provided for in Article 12 of the International Covenant on Economic, Social and Cultural Rights is a basis for interpretations requiring states to take measures to prevent internet addiction and to provide medical services for those affected. As demonstrated in this chapter, efforts by the state should be directed at the development of a comprehensive public health model aimed inter alia at the problem of internet addiction. The challenge in this respect is that under a surviving dichotomic civil and political versus socio-economic rights system, the right to health enjoys relatively weak protection as its implementation is dependent on the available resources of the state. One way to diminish this weakness is to rely either on the core of the right to health, which under the concept of core obligations needs to be guaranteed in any circumstances,Footnote ⁸⁵ or on the non-discrimination element of the right to health, which is required irrespective of existing limitations as to available resources.Footnote ⁸⁶

Protection from discrimination in the context of internet addiction is possible on various grounds. On the ground of young age and on the ground of sex it can be claimed that children and, depending on the context, boys or girls require special protection against internet addiction compared with the general population. On the ground of disability, claiming that internet addiction because of resulting obstacles amounts to a disability (an approach inspired by Canadian experience: the Ontario Human Rights Commission takes an expansive and flexible approach to defining mental health disabilities and addictions that are protected by the Ontario Human Rights Code; it considers that the Code protects people with mental health disabilities and addictions from discrimination and harassment on the grounds of disability),Footnote ⁸⁷ it could be argued that it is under the UN Convention of the Rights of Persons of Disabilities that states should take measures to provide the required services for those afflicted by internet addiction.

7.7.2 Avenues to be Explored Based on Regional Experience

Regional human rights law often acts as a laboratory in which new definitions and interpretations of human rights are developed and tested. In regard to internet addiction, the Council of Europe approach towards the protection of children in the digital realm is an example of how this process of identifying existing threats and developing the required standards gradually progresses (even though at present internet addiction has not yet been clearly identified by the Council of Europe as a human rights issue).

EU law has tools that enable it to expand into new areas faster than would be possible under international (global or regional) human rights law. The EU fundamental rights catalogue – the Charter of Fundamental Rights – is not limited to any specific type of human rights and, notably, contains provisions on health (as an element of working conditions and in Article 35 on healthcare) and consumer protection (Article 38). Even though official explanations of the Charter state that both Article 35 and Article 38 contain principles rather than rights,Footnote ⁸⁸ Charter provisions have the potential to be transformed from vaguely described principles to specifically defined rights. This potential derives from the fact that the EU can concretise its commitments by way of adopting, within the scope of its competencies, secondary legal acts. Moreover, the EU’s fundamental rights can be a trump card in a political discussion on the need to adopt further legal acts on a certain issue. If the Charter applies in a certain type of legal relationship, this indicates that a fundamental right is at issue, and in this manner raises the importance of the question at issue.

When we specifically consider internet addiction, the EU approach of addressing problematic video game design via the consumer rights perspective is novel and instructive, as consumer rights protection is included in the catalogue of human (fundamental) rights only in the EU Charter of Fundamental Rights but not in international human rights law documents. Similarly, the right to disconnect, which first became a subject matter of certain domestic laws, entered the rights debate first in the EU where, even though it is not a right contained in the Charter, it was included in the declaration on digital rights, where it will serve as an indicator for EU institutions that the protection of this right will have to be further developed. As international human rights law follows a similar path of putting ideas into soft law and then gradually transforming these into hard law, it is advisable to consider including the ideas tested in the EU in texts of non-binding resolutions of relevant international institutions (such as the UN Human Rights Council and UN human rights treaty bodies documents) to spark further debate on the required action at the global level. Reflecting on the experience of regional human rights law systems, such as the Council of Europe, should also continue to be an inspiration in developing the global system for the protection of human rights and, in particular, addressing the problem of internet addiction.