In present times, the state is not the sole source of sovereignty as its rule is shared with powerful private entities. A prominent example is the digital information environment, operated by online intermediaries which control the flow of information and monitor content running on the various online platforms. In effect, these online operators have become the online rulers. Various social media platforms, such as Facebook, YouTube, and WhatsApp, are major examples. To date, these online rulers have operated with an almost complete lack of regulation in pursuance of their own commercial interests. Accordingly, it is important to discuss whether particular public law norms which bind the state should be imposed on these private entities that govern the digital sphere, and, if so, how this can be achieved.
The issue of online content monitoring stands at the heart of contemporary social and legal discourse, as it challenges other constitutional rights and freedoms, such as freedom of speech, and, more broadly, “Digital Human Rights”.[2] Online rulers face a new legal and social challenge in that they are expected to strike the appropriate constitutional balance in the course of content monitoring despite being private-commercial entities. This reality may be demonstrated through different practices concerning content monitoring in cases of conduct allegedly offensive to a wide range of rights, from privacy, through defamation, to intellectual property rights. Online rulers are required to act as gatekeepers preventing this offensive conduct yet at the same time maintain competing Digital Human Rights — albeit without adequate legal infrastructure.
The question, therefore, is how some of the basic public law norms, such as accountability, transparency, equality, and reasoning, may be imposed on relevant private entities currently engaged in online content monitoring. European countries, in contrast to the United States, have displayed greater willingness to accept the introduction of public law norms into the private law sphere. An accepted doctrine acknowledges that in some cases, private entities, such as commercial companies that serve a social function, may be perceived as hybrid private/public bodies.[3] The legal consequence stemming from such perception is the opening of the door to the imposition of public law norms on the relevant private entity.[4]
The advantage of applying the hybrid bodies doctrine to online rulers lies precisely in its dynamic nature. The acknowledgment of an online ruler as a hybrid body is just the starting point for a discussion on the extent to which public law norms should be applied. However, imposing even very basic public law norms on online rulers may generate an appropriate digital governance, guaranteeing protection to Digital Human Rights, and at the same time preserve the online rulers’ freedoms when conducting their own business as well as other interests. In other words, a quasi-public legal framework for online rulers may promote a proper balance between the various stakeholders' legitimate and occasionally competing interests.
In Israel, the doctrine of hybrid bodies is relatively well-developed and may be applied in a wide range of cases. Under Israeli common law, a private entity that controls public resources, supplies basic social needs, fulfils a public function, or promotes necessary social values, may be acknowledged as a hybrid body and therefore subjected to certain public law norms and their underlying principles.[5] We propose that in relevant cases major online rulers should be acknowledged as hybrid bodies, in order to promote a fair and balanced digital information environment. To date, there has been one Israeli case where this proposition was discussed and rejected, albeit without being analyzed in-depth.[6] Nonetheless, there are many benefits stemming from the use of this doctrine enabling a gradual and proportionate application of public law norms in the private sphere. The digital environment has become the backbone of societal life. Thus, the time is ripe in our view for online rulers, governing the digital environment, to enter into a new phase of digital governance norms.
* Prof. Orit Fischman-Afori is a Law Professor at the Haim Striks School of Law, College of Management, Israel, and Academic Director of the Heth Center for the Research of Competition and Regulation.
[1] The ideas expressed in this document are part of a full article – Orit Fischman-Afori, Online Rulers as Hybrid Bodies: The Case of Infringing Content Monitoring, 23 U. Pa. J. Const. L. (forthcoming, February 2021).
[2] See, Rep. of the Special Rapporteur on The Promotion and Protection of The Right To Freedom Of Opinion And Expression U.N. Doc. A/HRC/38/35 (July 6, 2018). The U.S. Supreme Court has also acknowledged the importance of Digital Human Rights in the case of Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017) (“[T]o foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights….Even convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.").
[3] See for example YL v. Birmingham City Council (2007) 3 All Eng. Rep. 957 (HL).
[4] For example, the Human Rights Act 1998, c.42 § 6(1) (UK) proclaims that the obligations of public authorities apply to any person or body performing “functions of a public nature".
[5] See the seminal decision in the case of CA 294/91 Hevra Kadisha v. Kastenbaum, P.D. 46 (2) 464 (1992); Aharon Barak, Constitutional Human Rights and Private Law, 3 Rev. Const. Stud. 218, (1996).
[6] CC 50870-05-15 Lan v. Facebook Inc., (Decmber 14 2017) (Discussing removal of Lan's Facebook page).
