The unwitting foreign arbiters of Charter Rights: Facebook’s “(quasi) judicial” appointment

By Karen Eltis Web Only

The unwitting foreign arbiters of Charter Rights: Facebook’s “(quasi) judicial” appointment

Germany recently vowed to investigate Mark Zuckerberg and Facebook for failing to suppress hate posts just as Google and later Facebook itself announced that they will take respective aim at so called ‘false news’ sites following the US elections. And so it came to be that private U.S. companies are very reluctantly but surely stepping into the role of international arbiters of free expression, let alone privacy.

The post-war Human Rights framework, which includes Canada’s Charter of Rights, was devised with government action in mind- as a bullwark against government abuses.  The unspeakable atrocities perpetrated during the Holocaust in what had been considered a “democracy”, at least procedurally speaking, evidenced the appalling moral failings of legal positivism and sparked a re-conceptualization of democracy. It effectively shifted the focus from the procedural to the substantive aspects of democracy.

This reexamination ushered in what Lorraine Weinrib eloquently deems “a new constitutional paradigm.” Plainly put, a conception of democracy limited to majority rule was discredited and substituted by the view that it is was necessary to predicate the legitimacy of laws on their comporting with preset values of the highest order within the hierarchy of norms. In Canada, the Charter accordingly “sets forth ‘precommitments' that restrict government action.”

But these pre-commitments bind government as “government action”, even generously interpreted, requires at least a measure of just that.

Yet it stands to reason, particularly of late, that the power to infringe, however inadvertently, on Charter values (including freedom of expression and privacy) does not lie principally, or even exclusively, with the State in the digital age. Rather, I’ve argued previously that in the wake of the ECJ’s “right to be forgotten” decision in Costeja, private parties, namely American “data controllers”, with global reach and influence have become unwitting private censors; arbiters of the ‘global’ public interest, a role they presumably neither covet nor properly fit especially in the absence of guidance or criteria.

Indeed Facebook and other private entities are saddled incomprehensibly with the gargantuan task of determining how to “balance the need for transparency with the need to protect people’s identities,” which inevitably leads to ad hoc approaches by these companies. In addition, transparency and accountability are notoriously difficult to cultivate when balancing delicate constitutional values, such as freedom of expression and privacy. For even the constitutional courts and policy makers who typically perform this balancing struggle with it—think of the controversy associated with so-called “judicial activism.” The difficulty skyrockets when the balancers are instead inexperienced and reticent corporate actors, who presumably lack the requisite public legitimacy for such matters, especially when dealing with foreign (non-U.S.) nationals.

That in turn leads to absurd results such as the suppression of the picture of a 1972 depiction of a Canadian-Vietnamese child war victim by Facebook’s algorithms, subject only to the immediate oversight of  outsourced corporate actors abroad.  Or Paypal’s algorithm marginalizing cookbooks featuring the term “Syria” or “Cuba” in a misguided effort to comply with security regulations.

Mindful of the above, the notion of “government action” housed in the Charter must be purposefully revisited with an eye towards comporting with the exigencies of this digital age. For here the ultimate arbiters of the proper limits on fundamental Charter rights such as expression and privacy might increasingly be foreign corporate actors who presumably lack judicial training, not to mention accountability.  As we struggle with fostering transparacy in judicial appointments at home, let us be aware of the importance of maintaining Canadian courts’ oversight on Charter values, rather than letting them become the province of unknown, mostly unaccountable arbiters abroad.

One approach, which appears far removed at first glance, but – it stands to reason is intimately related – has been a liberalized approach to jurisdiction take of late by Canadian courts.  At the very least, it allows Canadian courts to preserve a modicum of interjurisdictional control over defandants with significant power over Canadians’ daily lives in the porous world of digital commerce in private disputes (take fore instance Goldhar v. Haaretz).

Fundamental principles such as accountability, transparency and – perhaps most importantly, human rights, shaped by their respective communities — as understood by them — may be reduced to nothing more than the singularity of their absence in a borderless world. Plainly put and as noted, the unprecedented fluidity of communication facilitated by the internet, with the potential to besmirch individuals residing in their own state, with little apparent effective legal recourse when rights and interests are not respected unidentifiably, raises several conceptual difficulties specifically pertaining to access to justice that the literature has thusfar overlooked.

Which brings us to Facebook v. Douez and arbitration clauses in online consumer contracts. Traditionally systematically upheld and with excellent reason (unburdening domestic courts, promoting cross border commerce), the internet’s take-it-or-leave-it approach, where unsophisticated consumers routinely unknowingly consent to opt out of protective domestic privacy legislation (such as Canada’s) and to travel to California to contest the use of their image for unremunerated for the luxury of social media use (which as an aside has been deemed a First Amendment Right by U.S. courts) begs revisiting.

Accordingly, the Tribunal de Grande Instance de Paris in France has deemed such arbitration clauses in the consumer context abusive, given the inbalance of power and ressources.

This way, and recognizing the internet’s peculiar ability to throw into question the law’s most established concepts, domestic courts can reassert control and prevent domestic normative frameworks (respecting privacy and consumer protection) from being made quite superfluous in the digital age.

Karen Eltis is a Professor of Law at the Faculty of Law of the University of Ottawa and affiliate faculty at Princeton’s Center for Information Technology Policy (CITP). She has recently published an article on the topic in the latest volume of the Canadian Bar Review.. The authors’s opinions are her own.

Photo licensed under Creative Commons by Alessio Jacona

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