Study of Fundamental Rights Limitations for Online Enforcement through Self-Regulation

Angelopoulos, C., Brody, A., Hins, W., Hugenholtz, B., Leerssen, P., Margoni, T. , McGonagle, T., van Daalen, O. and van Hoboken, J. (2015) Study of Fundamental Rights Limitations for Online Enforcement through Self-Regulation. Other. Institute for Information Law (IViR).

Abstract

The use of self-regulatory or privatized enforcement measures in the online environment can give rise to various legal issues that affect the fundamental rights of internet users. First, privatized enforcement by internet services, without state involvement, can interfere with the effective exercise of fundamental rights by internet users. Such interference may, on occasion, be disproportionate, but there are legal complexities involved in determining the precise circumstances in which this is the case. This is because, for instance, the private entities can themselves claim protection under the fundamental rights framework (e.g. the protection of property and the freedom to conduct business). Second, the role of public authorities in the development of self-regulation in view of certain public policy objectives can become problematic, but has to be carefully assessed. The fundamental rights framework puts limitations on government regulation that interferes with fundamental rights. Essentially, such limitations involve the (negative) obligation for States not to interfere with fundamental rights. Interferences have to be prescribed by law, pursue a legitimate aim and be necessary in a democratic society. At the same time, however, States are also under the (positive) obligation to take active measures in order to ensure the effective exercise of fundamental rights. In other words, States must do more than simply refrain from interference. These positive obligations are of specific interest in the context of private ordering impact on fundamental rights, but tend to be abstract and hard to operationalize in specific legal constellations. This study’s central research question is: What legal limitations follow from the fundamental rights framework for self-regulation and privatized enforcement online? It examines the circumstances in which State responsibility can be engaged as a result of selfregulation or privatized enforcement online. Part I of the study provides an overview and analysis of the relevant elements in the European and international fundamental rights framework that place limitations on privatized enforcement. Part II gives an assessment of specific instances of self-regulation or other instances of privatized enforcement in light of these elements.

• Item Type: Research Reports or Papers (Other)
• Status: Published
• Glasgow Author(s) Enlighten ID: Margoni, Dr Thomas
• Authors: Angelopoulos, C., Brody, A., Hins, W., Hugenholtz, B., Leerssen, P., Margoni, T., McGonagle, T., van Daalen, O., and van Hoboken, J.
• College/School: College of Social Sciences > School of Law
• Publisher: Institute for Information Law (IViR)
• Copyright Holders: Copyright © 2017 The Authors
• Publisher Policy: Reproduced under a Creative Commons License