The Rule of Law in Cyberspace

Contents
Introduction
Part I: Democratic Constitutionalism in Cyberspace
``Digital Democracy´´: A Threat to the Democratic System or Oxygenation of Representative Democracy and Free Speech?
1 Assumption
2 The Explosion of Social Networks in Critical Times of Representative Democracy
3 ``Digital Democracy´´ as a Subspecies of Democracy or as an Expression of Pluralism?
4 Critical Assessment to the Real or Hypothetic Risks Created by Social Networks to Representative Democracy
4.1 Misinformation: ``Fake News´´, ``Unfair Competition´´ with the Media and Distortions in the Competitiveness of Electoral C...
4.1.1 Networks vs Professional Press
4.1.2 Misinformation and Loss of Impartiality in Electoral Campaigns
4.2 ``Trollism´´, Hate Speech and Degradation of Political Debate
4.2.1 ``Trolling´´
4.2.2 Hate Speech
Characterisation
Legal Reactions to ``Hate Speech´´: Two Models in Confrontation
The Liberal Model Within the Context of the North American Paradigm
The European Interventionist Model and the German Restrictive Paradigm
4.2.3 Critical View on the Institutional Models of Legal Reaction to ``Hate Speech´´
Autonomy of the Democratic Systems to Regulate Cyberspace in Compliance with the Fundamental Content of Free Speech
Legal Paradigms Between Libertarian and Restrictive Doctrinal Conceptions
Strengths and Weaknesses of the North American Liberal Model
The European Model Between the Prevention of Abuse and the Privatisation of Censorship
4.3 Legislation on Fake News and Hate Speech in Portugal
4.4 The Political Action in Networks and the Depreciation of Gravitas of Leaders
5 Concluding Remarks: Free Speech in Networks as Assumption of the Contemporaneous Democracy
References
Digital Constitutionalism and Constitutional Jurisdiction: A Research Agenda for the Brazilian Case
1 Introduction
2 Digital Constitutionalism: Setting the Stage
3 Constitutional Jurisdiction in Cyberspace as a Moving-Target
4 Constitutional Jurisdiction Through the Lens of Digital Constitutionalism
4.1 The Theory of Horizontal Effectiveness of Fundamental Rights Reconsidered
4.1.1 Civil Liability of Online Intermediaries for Third Party´s Content
4.2 The Re-territorialization of Cyberspace in Constitutional Jurisdiction
4.2.1 Obtaining Data as Criminal Evidence by Direct Judicial Request or Mutual Cooperation Agreements (MLAT)
5 Final Remarks
References
The Crisis of the Representative Democracy in the Face of Digital Democracy
1 Introduction: The Crisis of the Representative Democracy
2 The Representative Democracy As Pluralist and Constitutional Democracy
3 The Direct Democracy As Monist and Populist Democracy
4 Which Is the Place of the Digital Democracy?
5 Conclusions
References
Rule of Law, Democracy and New Technologies
1 Introduction
2 New Technologies and Democracy
3 Case Study Analysis: The General Data Protection Act
4 Final Remarks: Distorting the Rule of Law?
References
Freedom, Democracy, Digital Government and Human Development
1 Introduction
2 Freedom and Human Development
2.1 Choice as a Way of Individual Expression
2.2 Entrepreneurship as Form of Individual Expression
3 Freedom and Democracy
4 Freedom, Democracy and Digital Government
5 Conclusion
References
Other Legal Documents
The Digitization of Government and Digital Exclusion: Setting the Scene
1 Introduction
2 The Digitization of Government
2.1 E-Government and Digital Government: Background and Definitions
2.2 Principles of Digital Government
2.2.1 The Functioning of Digital Government
2.2.2 Protection of Citizens
3 Digital Divides and Digital Exclusion
3.1 Introduction
3.2 Digital Divides
3.3 Digital Citizenship and Exclusion by Design in Digital Government
4 Implications of Digital Exclusion
4.1 Digital Exclusion and Unequal Treatment
4.2 Digital Literacy, Fair Trial, and the Right to Make Mistakes
4.3 Automation and the Lack of Meaningful Contact with the Public Administration
5 Conclusion
References
Other Legal Documents
The Impact of Artificial Intelligence on the Structures of the Modern Public Sphere
1 Social Media and Artificial Intelligence: The Example of Donald Trump´s Presidential Campaign
2 The Normative Challenge Posed by New Media
3 The Beginnings of a Modern Public Sphere in England and Great Britain
4 The Group-Pluralistic Model of the Modern Public Sphere
5 The Great Unbundling or the Fragmentation of the Modern Public Sphere
6 A New Constitutional Model for the Digital Public Sphere
References
Part II: The Threat of Disinformation and the Role of Social Networks
Fake News and the 2018 Brazilian Presidential Election
1 Introduction
2 Contextualization of the Fake News Phenomenon
2.1 Concept
3 Legal Treatment of Fake News Around the World
3.1 European Union
3.2 Germany
3.3 United States
3.4 Comparative Analysis
4 2018 Brazilian Presidential Election
4.1 Context
4.2 Performance of the Superior Electoral Court
4.2.1 Examples and Concept of Fake News
4.2.2 Principle of Minimum Intervention
4.2.3 Social Networks
4.3 Critical Synthesis
5 Conclusion
References
Political Speech, Freedom of Expression and Fake News
1 Introduction
2 Fake News: Strengthening Factors
3 Characterising Fake News
4 Law and Fake News: Foreign Experiences
5 Fake News and Brazilian Electoral Law
6 Concluding Remarks
References
Disinformation and Journalism
1 We Know the Importance of a Strict Relationship Between Democracy and Social Communication in Its Widest Sense, the Media
2 It Is Complex the Current World of Information that Internet Democratised
3 From the Covid 19 Pandemic to the Pandemic of Disinformation
4 What Does the Portuguese Political Experience Teach us Towards Development of Disinformation?
References
Other Legal Documents
Social Networks and the Exercise of Fundamental Rights: Public Administration and the Digitalization of Fundamental Rights
1 Introduction
2 E-democracy: The Role of the Government and of Public Administration
3 The Digitalization of Fundamental Rights: Old and New Rights
3.1 Freedom of Expression
3.2 Right to Assemble and Right to Protest and to Participate in Demonstrations
4 Conclusion
References
Freedom of Expression in the Age of Digital Platforms: Change of Paradigm?
1 The Constitutional Protection of Freedom of Expression
2 The ``Information Society´´, the Digital Revolution and the Emerging Dangers for Freedom of Expression
3 The New Methods to Restrict Freedom of Expression
3.1 Private Actors as Regulators of On-Line Speech
3.2 ``Flooding´´ of Information, ``Fake News´´ and ``Astroturfing´´
3.3 On-Line Harassment
4 Freedom of Expression in the Twenty-First Century: Should We Rethink It?
References
Online Hate Speech and the Role of Digital Platforms: What Are the Prospects for Freedom of Expression?
1 Introduction
2 Hate Speech: Legally Blurred Boundaries and the Tyranny of Political Correctness
3 European Legislation Between Soft Law and Hard Law: A Noteworthy Regulatory Approach
4 The Assessment of Hate Speech by Platforms: Content and Limits
5 Platforms and Their Assumption of a Role of a Public-Law Nature
6 How Platforms Decide When It Comes to Hate Speech: The Decision-Making Stage
6.1 The Absence of Clear, Transparent Assessment Parameters
6.2 The Absence of Effective Legal Reasoning and Procedural Safeguards
6.3 Private Justiciability and Algorithmic Justiciability. The Controversial Use of Algorithms in Decisions Regarding the Poli...
7 The Facebook Oversight Board
8 The Conflict of Interests of Platforms
9 Which Prospects Lie Ahead?
References
Other Legal References
Hate Speech and Social Media
1 Introduction: Beyond the Two Cultures of Hate Speech?
2 Hate Speech and Its Expression in Cyberspace
2.1 The Punishment of Hate Speech as Enforcement of the Social Rules of Respect According to Robert Post
2.2 Hate Speech in Social Networks
3 Freedom and Dignity in the Cultural Understanding of Freedom of Expression and Hate Speech
3.1 Introduction
3.2 The Two Cultures of Freedom of Expression
3.2.1 The Two Cultures: A Brief Description
3.2.2 The Two Cultures: Some Explanation Attempts
3.3 Limits to American Exceptionalism
3.4 Social Networks and the Closing of the Two Cultures´ Thesis
4 The Problem of Hate Speech as a Problem of Democracy
4.1 The Importance of Facing the Justification Issue
4.2 Types of Hate Speech Regulation
4.3 Three Grounds for Freedom of Expression
4.4 Freedom of Expression Within the Scope of Social Networks
5 Conclusion
References
Other Legal Documents
Don´t Shoot the Message: Regulating Disinformation Beyond Content
1 Introduction
2 Definitions and Scope
3 Regulating Disinformation
3.1 Disinformation and Regulatory Rationales
3.2 Regulatory Strategies Against Disinformation
3.2.1 Content
3.2.2 Data
3.2.3 Structure
4 Analysis
5 Conclusions
References
Models of Legal Liability for Social Networks: Between Germany and Portugal
1 Introduction
2 Rising of a New Legal Liability
3 The Crisis of the Intermediaries´ Liability
4 Searching for an Adequate Model for Intermediaries
4.1 German Model
4.2 Portuguese Model
5 Conclusion: Eva Glawischnig-Piesczek in Portugal and in Germany
References
Self-Regulation and Public Regulation of Social Networks in Portugal
1 Rationale and Framework
2 Social Networks´ Self-Discipline: Standard Contractual Clauses and Private Enforcement
3 Limits to Private Enforcement of Fundamental Rights by Social Networks
3.1 Material Rules
3.2 The Procedural Rules
3.2.1 The Internal Procedures of Social Networks
3.2.2 The Procedure of Decree-Law No. 7/2004: The Preliminary Dispute Settlement
3.3 The Regulatory Mechanisms
3.3.1 Regulation Made by Social Networks
3.3.2 Regulation Made by the Administrative Entity
4 Conclusions
References
Case Laws
European Court of Justice
German Constitutional Court
Cyber Courts for Social Media As a New Institutional Dimension of Media Freedom?
1 The Relationship Between Protection of Personality Rights and Freedom of Expression in Changing Regulatory Models
2 Cyber Courts As Digital Arbitration Courts?
3 Practical Approaches to the Institutionalisation of Arbitral Control of Communications
4 What Is the Defining Characteristic of Network Communications from a Regulation Point of View?
5 Arbitral Process Control As New Institutional Infrastructure for the Functioning of Network Communication
6 Cyber Courts As Institutions for a New Experimental Regulation of Communication
7 Procedural Rules for Structuring Communication in Social Media: Leading the Way to a ``Serial Law´´?
8 Outlook for a Transnational Dimension of the Cyber Court Regime
References