It is pretty curious how the Facebook Inc. creators and some employees refer to the corporation as a tool for increase the openness of its on-line social networking service and improve connections between people worldwide (1). Mark Zuckerberg’s (2) website was launched in 2004, and since then, the community of users has increased to account for 2 billion people. This means that if Facebook were a nation, it would be the most populated in the world (3).
Its functions are simple to understand: once a certain user is registered, he or she would be able to create his or her own profile, add other users as “friends”, post status updates, share photos or videos, exchange “private” and public messages, etc. Users can join common-interest user groups indeed (4). However, as soon as providing personal information is needed, several questions may come to us: What does Facebook do with all these pieces of information? What are the rules in this nation of Facebook? What are the consequences if anybody would breach them?
These are some unsolved inquiries that ‘Facebookistan‘ tries to bring forward.
FACEBOOK AND THE RIGHT TO PRIVACY IN THE DIGITAL AGE
As a Multinational Corporation (MNC), Facebook has more control over human, natural and financial resources than some of the States in which it operates (5). In addition, it is not bound by UN principles and other International Agreements held between those same States. Corcerning the right to privacy, international Human Rights law provides an universal framework for their promotion and protection (6). It is enshrined by several instruments, being outlined in its capital importance the article 12 of the UDHR. According to it, no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence […] Everyone has the right to the protection of the law against such interference or attacks (7).
What Facebook doesn’t say is that it gets further data than those particularly provided by a certain user, associating him or her with a group of people that the individual is related to. Michal Kosinski’s computing model demonstrated that psychological and demographic statements could be guessed by the Likes people click, indeed. This means that a sort of arbitrary surveillance and collection of personal data is being accomplished, while users lose control of all their information flowing through the internet.
Resolution 68/167, adopted by the UNGA in December 2013, expresses this deep concern at the negative impact that surveillance and interception of communications may have on Human Rights. As highly intrusive acts, these activities violate the rights to privacy and to freedom of expression, being both essential pillars of modern democratic society.
Facebook knows how poweful information is, not only for governments but also for other companies. Following the rational choice theory, the principal aim of Facebook is to have the monopoly on data as personally specific as possible, over many years. In fact, in 2014, Facebook made 10 dollars per user, reaching a maket value estimated in 200 billion dollars, according to EDRi recent studies. Such a ‘success story’ is directly tied to the surveillance practices discussed earlier, therefore, its misuse and the violation of the right to privacy and the right to be forgotten have to be seen as the cornerstone of the Facebook Business Model and as such, as an element unlikely to change on its own.
FACEBOOK AND THE FREEDOM OF SPEECH
As said before, Facebook has the power to violate Human Rights directly, assisting in trespasses, failing to prevent them, remaining silent or simply operating in States that systematically violate Human Rights (8), as we can see in the case of the Turkish Halklann Demokatik Partisi, where the media, in favour of the ruling party, prevents the proliferation of support actions for the Kurdish PKK-movement.
As the article 19 of the ICCPR (9) disposes, everyone shall have the right to hold opinions without interference and the right of freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds […] through any media of his choice. However, this exercise carries with it special duties and responsibilities, e.g., the freedom of speech is subject to several restrictions provided only by law; these are (i) the respect of the rights or reputations of others and (ii) the protection of national security or of public order, health or morals.
Censorship is the most striking limitation of these rights. To be legal, it must be justified in non-discrimination terms, so that the same censorship has to be applied in similar circumstances. The breach of this general principle is what Peter Ovig denounces in his book The Danish Case. Facebook has the monopoly for interpretation and enforcement its Community Standards, written in deliberately indeterminate terms. Only if users respect and carefully construe these rules, they would be able to stay in Facebook. Otherwise, a procedure for the appeal of decisions is not at their disposal. This implies that users are owed to censor themselves, having the CS negative implications on the independence of these individuals.
The problem is that Facebook has become the mainstream media, and as such, has prevented some silent collectives from expressing themselves. Examples of these are the #MyNameIs coalition, the SNHR or other kinds of activism. Also for professional aims, either individual or collective, as promotion, advertising or attracting the general public attention, Facebook is an indispensable tool, as for many entrepreneurs being left out would be a step backwards.
Taking into account these wide range of utilities, the existence of Content Moderators becomes fundamental. These are normal workers hired by Facebook, and the ones responsible for deciding whether user-contributed content transgresses the CS or not. Owing to this, there lies the risk that the CS would be interpreted differently, according to the employees’ beliefs, preferences and values. In addition, these workers have long shifts and their payment is based on the content reviewed, so this frantic speed expected from them often makes them click on the wrong button, rendering this system not very accurate at all. Finally, attention must also be paid to the private police of Facebook, who are the users themselves. They enforce the terms of service and are able to report each other based on their personal considerations, with no democratic legitimacy whatsoever.
CONCLUSION: THE FACEBOOK’S LEGISLATIVE GAP
Nowadays, the system of justice in Facebook is completely dysfunctional. The Office of the Data Protection Commissioner in Ireland is responsible for claims against huge companies such as Apple, Google or Facebook in Europe. However, claimants can always move their cases to their national courts as consumers (10). With the recent occurrences, the Court of Justice of the EU has also become involved, having ruled in favour of the victims. In fact, in October 2015, the CJEU ruled that the data transfer pact, known as safe-harbour between the US an Europe was invalid, and that European citizens’ privacy had been breached by the NSA’s mass-surveillance programme (11). Facebook an other US companies operating in Europe can no longer transfer unlimited amounts of data to US without consulting National Data Protection Agencies.
For that reason, in the International scenario, Resolution 68/167 calls upon the States to take measures to put an end to violations of those rights and to create the conditions to prevent them. Those include, but are not limited to, ensuring that relevant national legislation complies with their obligations under international human rights law; and establishing existing independent, effective domestic oversight mechanisms capable of ensuring transparency and accountability for State surveillance of communications, their interception and the collection of personal data.
The need to provide an effective forum for victims looking for redress rises as urgent, as Max Schrems case and his platform (Europe v. Facebook) has demonstrated. In this field, there is ample room for research, where Public and Private International Law have a main role. Special attention must be paid to the recent developments in US doctrine and case law, given the fact that the US Alien Tort Claims Act has played a key role in attracting to the US many cases against corporations for violations of Human Rights. Jurisdictional issues -Human Rights litigation and non-judicial redress mechanisms-, applicable law issues and MNCs national and international obligations and standards of care are new legislative challenges which we must face, not only at the EU level, but also facilitating the access to EU-Members state courts for victims outside Europe (12).
On the other hand, people have the right to be forgotten if they so consent and the right to preserve their personal information, limiting its use and preventing the occurrence of abuses as Paolo Cirio’s experiment showed. In this sense, governments should ensure that communication surveillance regimes are consistent with Human Rights standards, committing further to specific areas of increased control and transparency. The notion of freedom we have in the Western Society is based on the idea that we can hide information from the others. Nonetheless, currently those values are disputed.
As George Orwell wrote in 1984: if you want to keep a secret, you must also hide it from yourself.
(1) See https://www.facebook.com/facebook/info/?tab=page_inf
(2) Notice that Eduardo Saverin, Andrew McCollum, Dustin Moskovitz and Chris Hughes were the co-funders of the website.
(3) See http://youtube.com/whatch?v=JCyO5uT9XfU
(4) For further information, http://en.wikipedia.org/wiki/Facebook
(5) Kieserman, B.J. (1999), “Profits and principles: promoting multinational corporate responsibility by amending the Alien Tort Claims Act”, The Catholic University Law Review, Vol. 4, Spring, p. 881.
(6) See http://www.ohchr.org/EN/Issues/Privacy/SR/Pages/Internationalstandards.aspx
(7) Universal Declaration of Human Rights, United Nations Department of Public Information, NY. Resolution 217 A (III) 10th December 1948, Paris.
(8) Clapham, A., & Jerbi, S. (2000). Categories of corporate complicity in human rights abuses. Hastings Int’l & Comp. L. Rev., 24, 339.
(9) International Convenant on Civil and Political Rights. General Assembly Resolution 2200A (XXI) 16th December 1966, UN Headquarters, NY.
(10) Regulation (EU) 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I bis), article 7.2.
(11) See CJEU’s Decision Invalidates Safe Harbor (October 2015)
(12) For further information, http://humanrightsinbusiness.eu/