The past two decades have seen a radical change in the online landscape with the emergence of GAFAM (Google, Amazon, Facebook, Apple and Microsoft). Facebook, specifically, has acquired a unique monopoly position among social media, and is part of the digital lives of billions of users. A mutual influence between Facebook and the legal framework has gradually emerged, as EU legislators and judges are on the one hand forced to accept the reality of new, widespread behaviors and practices and on the other have constructed a legal framework that imposes limits and rules on the use of the social network. This book offers a unique perspective on this relationship, exploring the various activities and services proposed by Facebook and discussing the attendant legal issues. Accordingly, questions concerning the GDPR, its principles, rights and obligations are in the center of the discussions. However, the book does not limit its scope to data protection: Facebook has also greatly contributed to a liberalization and democratization of speech. In accordance, the classic principles of media law must be revisited, adapted or suitably enforced on the platform. Intellectual property law governs what is owned and by whom, no matter whether raw data or informational goods are concerned. Frameworks on hate speech and fake news are the result of coregulation principles of governance, whereas defamation jurisprudence continues to evolve, considering the consequences of merely “liking” certain content. The economic model of advertising is also governed by strict rules. Above all, Facebook is currently caught in a dilemma of substantial interest for society as a whole: is it a neutral online intermediary, i.e., merely a passive player on the Internet, or is it transforming against its will into an editorial service? In conclusion, the book has a dual purpose. First, it proposes a global and practical approach to the EU legal framework on Facebook. Second, it explores the current limits and the ongoing transformation of EU Internet law as it steadily adapts to life in the new digital world.
Author(s): Philippe Jougleux
Series: Law, Governance And Technology Series | 48
Edition: 1
Publisher: Springer
Year: 2022
Language: English
Commentary: TruePDF
Pages: 276
Tags: IT Law; Media Law; Intellectual Property; European Law; Social Media
Contents
Chapter 1: Introduction to the ``Facebook´´ Phenomenon
1.1 General Approach: Facebook´s Influence on the Internet
1.1.1 From the East India Companies to the GAFAM
1.1.2 The Rise of Online Social Networks
1.2 Economic Considerations Regarding the Facebook Phenomenon
1.3 Facebook´s History: A Series of Legal Controversies
1.4 Facebook´s Usage: Sociological and Psychological Aspects
1.5 Facebook Activities Entangled in a Web of Legal Issues
References
Chapter 2: Personal Data and Privacy Protection: Facebook and the Big Data Mountain
2.1 Privacy and GDPR: A Two-Body Dilemma
2.1.1 Personal Data Protection: The Multiplicity of Legal Sources in the EU
2.1.1.1 The EU ``Acquis´´
2.1.1.2 The Influence of the European Convention Human Rights
2.1.1.3 The Bosphorus Doctrine
2.1.2 The GDPR: More an Evolution Than a Revolution
2.1.2.1 The Novelties of the GDPR
2.1.2.2 The GDPR´s Process and Facebook´s Lobbying
2.2 The Facebook Data Mountain
2.2.1 Which Data Is Personal?
2.2.1.1 Direct and Indirect Personal Data
2.2.1.2 Public Data and Personal Data
2.2.1.3 Facebook and the Household Exception
2.2.2 The Curious Little ``Like´´ Button
2.2.3 The Compatibility Between the GDPR´s Core Principles and Facebook´s Business Model
2.2.3.1 The Principle of Lawfulness, Fairness and Transparency
2.2.3.2 The Principle of Purpose Limitation
2.2.3.3 The Principle of Data Minimization
2.2.3.4 The Principle of Accuracy
2.2.3.5 The Principle of Storage Limitation
2.2.3.6 The Principle of Integrity and Confidentiality, Cambridge Analytica, and the Data Breach Notification System
2.2.4 User´s Rights to the Data and the Theoretical Portability
2.2.4.1 The Right to Access
2.2.4.2 The Right to Rectification
2.2.4.3 The Rights to Erasure and to Object, the Right to Restriction and the Right to Oppose: The Problem of Account Deletion
2.2.4.4 The Right to Portability: A Chimera?
2.2.5 The Sharing of Data Between WhatsApp and the Main Platform: The Dangerous Relationships
2.2.5.1 The Merger and the Anticompetition Fine
2.2.5.2 The Privacy Threats Related to the Merger
2.3 The Legal Bases for Data Processing of Facebook´s Users
2.3.1 General Principles on the Lawfulness of Data Processing
2.3.2 Facebook´s Lawful Bases Under the GDPR: The Contract
2.3.3 Facebook´s Lawful Bases Under the GDPR: Consent
2.3.3.1 Consent in General
2.3.3.2 Consent and Cookies
2.3.4 Facebook´s Lawful Bases Under the GDPR: The Legitimate Interest
2.3.5 Facebook´s Lawful Bases Under the GDPR: The Legal Requirement and Compliance with a Legal Obligation
2.3.6 Facebook´s Lawful Bases Under the GDPR: The Protection of Vital Interests
2.3.7 Facebook´s Lawful Bases Under the GDPR: The Public Interest
2.4 Specific Legal Issues of the GDPR´s Enforcement Related to the Online Platform
2.4.1 Facial Recognition
2.4.2 The Rogue App Problem
2.4.2.1 A Story of Data Breaches
2.4.2.2 Facebook´s Rogue Apps
2.4.3 Minors on Facebook
2.4.3.1 The Need for a Specific Protection of Children´s Personal Data
2.4.3.2 Article 8 of the GDPR
2.4.3.3 Facebook´s Practice and Concern for Minors
2.4.4 Facebook´s Dark Patterns
2.5 Responsibilities and Liability
2.5.1 Controller Versus Processor and the Principle of Accountability
2.5.1.1 General Principles
2.5.1.2 Facebook and Page Administrators As Co-controllers
2.5.1.3 The (Too Secret) Identity of Facebook´s DPO
2.5.1.4 Violations of the GDPR by Users
2.5.2 The Consequences of Facebook´s Responsibility
2.5.2.1 The Potential Sanctions of the GDPR
2.5.2.2 The Potential Intervention from Multiple Supervisory Authorities
2.5.3 The War Over the Cross-Border Transfer
2.5.3.1 The EU´s Data Imperialism
2.5.3.2 The GDPR´s Legal Framework on Cross-Border Transfers of Data
2.5.3.3 Schrems I and II Decisions
References
Chapter 3: User-Generated Content on Facebook and Intellectual Property Rights
3.1 Facebook User-Generated Content As a Protected Intellectual Creation
3.1.1 Facebook Data As an Intellectual Creation
3.1.1.1 The Notion of a Protected Work in the EU
3.1.1.2 The Concept of Originality
3.1.1.3 The Objective Expression of the Work
3.1.1.4 The Precise Expression of the Work and the Issue of Raw Data Protection
3.1.2 The Right Holder´s Exclusive Protection and Its Limits
3.1.2.1 The Scope of Copyright Law´s Prerogatives in the Online Environment
3.1.2.2 Exceptions to Copyright Law Relevant to the Main Facebook Activities
3.1.2.3 The License to Facebook Included in the Terms of Service
3.1.3 The Question of Facebook Apps
3.2 About Linking and Sharing of Protected Content
3.2.1 Hyperlinking and Sharing As Acts of Communication to the Public
3.2.1.1 General Jurisprudential Framework on the Right of Communication to the Public
3.2.1.2 Legal Issues Relating to Hyperlinks
3.2.1.3 Facebook´s Liability for Hyperlinks
3.2.2 Hyperlinks to Press Articles, the Value Gap, and the Press Publisher´s Exclusive Right
3.3 Facebook´s Duty to Filter Content Infringing Copyright Law
3.3.1 Article 17 of the Digital Single Market Directive
3.3.2 The Ambiguous Interpretations of Article 17
3.4 Facebook and the Industrial Property Laws
3.4.1 Trade Mark Law, Hashtags, and Domain Name Protection
3.4.1.1 Facebook As a Trade Mark
3.4.1.2 Facebook and the Hashtag Function
3.4.2 Patent Law
References
Chapter 4: Data Ownership (and Succession Law)
4.1 Ownership of Accounts
4.1.1 The Contract Law Perspective
4.1.1.1 The User As a Sole Party
4.1.2 Data As Intangible Goods
4.1.2.1 The Civil Law Doctrines on the Notion of Res
4.1.2.2 The Protection of Data Under Contemporary Legal Regimes and the Protection of Facebook´s User Account
4.1.2.3 The Trade Secrets Directive and the Golden Algorithm
4.2 Facebook Versus Succession Law: The Digital Graveyard´s Perspective
4.2.1 The Memorial State and the Digital Inheritance
4.2.2 The Jurisprudential Positions on Digital Inheritance
4.2.2.1 The German Law Decisions
References
Chapter 5: Defamation and Personal Attacks
5.1 The Labyrinth of Defamation Laws and the Breadcrumb Trail of ECtHR Case-Law
5.1.1 The Alignment of Laws and Practices Concerning Online Defamation
5.1.2 Specificities of Online Defamation
5.1.3 Online Defamation and Forum Shopping
5.2 Defamation Through Reactions or the Dilemma of the ``Like´´ Button
5.2.1 The Hyperlink´s Analogy
5.2.2 The Melike Case
5.3 Promising That the Platform Is Safe: An Unfair Commercial Practice?
References
Chapter 6: Intermediaries´ Liability: Where Is My Chair?
6.1 Origin and Operation of the Legislative Umbrella
6.1.1 The e-Commerce Directive
6.1.2 The Theory of the Passive Role
6.1.3 Uses and Abuses of the Notice and Take Down Procedure
6.1.3.1 The Lack of Formalities in the Notification Process: The CG v. Facebook Case
6.1.3.2 The Facebook ``Judgment´´ on Reporting and Its Strange Passivity
6.1.4 The Recurrent ``Take Down, Stay Down´´ Theory
6.1.4.1 Origin, Justification, and Dismissal of the Theory
6.1.4.2 The Eva Glawischnig-Piesczek v. Facebook Case
6.2 Contemporary Doubts on the Safe Harbor Legitimacy
6.2.1 The Safe Harbor As Outdated Model
6.2.2 The Safe Harbor from a Human Rights Perspective
6.2.2.1 The Delfi Case
6.2.2.2 The Post-Delfi Era
6.2.3 Copyright Law As Lex Specialis and the Erosion of the Safe Harbor Mechanism Through Injunctions
6.2.3.1 Copyright Law As Lex Specialis
6.2.3.2 Safe Harbor and Injunctions
6.2.4 The Proposed EU Digital Services Act
References
Chapter 7: Hate Speech, Fake News, and the Moderation Problem
7.1 The Cybercrimes of Hate Speech and Fake News
7.1.1 To Hate Speech or Not to Hate Speech: General Elements of the Crime
7.1.1.1 The International Background
7.1.1.2 The Hate Speech Crime and Its Consecutive Elements
7.1.1.3 Online Hate Speech Enforcement on Facebook
7.1.2 The Diversity of Hate Speech: Strengths and Weaknesses of the Closed List
7.1.2.1 Discrimination Based on Race, Origin, Nationality or Ethnicity
7.1.2.2 Discrimination Based on Religion
7.1.2.3 Discrimination Based on Sexual Preference
7.1.3 Fake News and Real Threats
7.1.3.1 The Multiple Faces of Fake News
7.1.3.2 Fake News As Criminal Offense
7.1.3.3 Fake News from the EU Perspective
7.1.4 The Impact of the Audiovisual Media Services Directive
7.1.4.1 The Application of the Audiovisual Media Services Directive to Facebook
7.1.4.2 Main Principles of the AVMSD Relevant to Facebook
7.2 The Co-regulation Techniques Used in Combating Illegal Content
7.2.1 The Practical Importance of Trusted Flaggers Organizations
7.2.2 E-governance Through Soft Law and Its Impact on Illegal Online Content
7.2.2.1 The Promotion of EU Codes of Conduct for Online Platforms
7.2.2.2 Facebook´s Oversight Board
7.2.3 The Cooperation with the Authorities
References
Chapter 8: Freedom of Expression and the Rise of AI
8.1 The Notion of Freedom of Speech, Between Universalism and Cultural Particularism
8.1.1 The Three Generations of Freedom of Expression
8.1.1.1 Freedom of Expression As the ``Right to Provoke´´
8.1.1.2 Freedom of Expression and Right to Pluralism
8.1.1.3 Freedom of Expression and the Right to Be Informed
8.1.2 The Legitimate Restrictions on Freedom of Expression in Europe
8.1.2.1 The Three-Part Test
8.1.2.2 The Chilling Effect Doctrine
8.1.2.3 The Theory of Abuse of Rights
8.1.3 Moderation and Account Suspension
8.1.3.1 Facebook´s Restrictions to Freedom of Expression
8.1.3.2 The Accountability of the Moderation
8.2 The Rise of Digital Public Spaces
8.2.1 The ``Facebook Friend´´: A Friend Like No Other
8.2.2 Social Networks As a Digital Public Space, Between Utopia and Dystopia
8.2.2.1 In Search of the Horizontal Effect
8.2.2.2 The Rising Notion of Digital Public Space
8.2.3 Contract Law: The Surprising Defender of Freedom of Speech
8.3 The Black Box of Facebook´s Algorithm
8.3.1 The Algorithm: Myths and Reality
8.3.2 Facebook´s Algorithm and the Ambiguous Right to Explanation
8.3.3 Through a Regulation of AI
8.3.3.1 The Mystery Surrounding AI
8.3.3.2 The Artificial Intelligence Act
References
Chapter 9: E-commerce, Consumer Protection and Advertising Rules
9.1 The Existing Legal Arsenal on e-Commerce and Consumer Protection
9.1.1 Consumer Protection and Facebook Marketplace
9.1.1.1 Abusive Clauses and Duty of Conformity
9.1.1.2 Concerns Over Meta´s Growing Market Power
9.1.1.3 Dark Patterns Again and Other Unfair Commercial Practices
9.1.2 Advertising on Facebook
9.1.2.1 General EU Rules on Advertising
9.1.2.2 The Regulation 2019/1150 and the Protection of Business Users
9.1.3 Facebook Competitions
9.2 The Novelties of the DSA Package Proposal
9.2.1 The DSA Proposal´s Impact on e-Commerce
9.2.2 The DMA´s Impact on e-Commerce
9.3 Diem: Facebook´s Cryptocurrency
9.3.1 Facebook´s History with Digital Currencies: From Libra to Diem
9.3.2 Smart Contracts
9.3.3 The EU Regulation on Cryptocurrency and Its Impact on Diem
References
Chapter 10: Conclusion
References
