The central claim in behavioural economics is that humans do not behave like machines, do not have standardized patterns of behaviour and do not always act in their best interest. This has opened the door for the usefulness of nudges – soft techniques designed to prompt behavioural changes seen as beneficial. Nudges are already in place in several areas of our life, but AI has the potential to make them better informed and potentially more effective and efficient. Also, robots can be designed to mould human behaviour in particularly convincing ways. On the other hand, this opens the gate for abuse and misuse and calls the sirens on the potential for manipulative policies that limit our freedom of choice.
Virtually all areas of everyday life are influenced by the transformation of the world into a digital world and one of the most affected is the public sphere. With the emergence of the internet, the public sphere, previously organized around television and printed journalism, is now structured around social networks. An immense regulatory challenge arises because social networks have a specific legal status: private but opened to the public. The possibilities go from no regulation but inevitable if uncertain self-regulation to severe public regulation. A combination of both has come to be known as regulated self-regulation. The present paper aims to understand how some of the EU jurisdictions (Germany, Portugal, France and Italy) are dealing with the regulation of social networks, especially in the context of the clash between fundamental rights such as the right to privacy, reputation and good name, freedom of expression and freedom of the press, as well as freedom of enterprise.
The paper analyses the role that international law plays on the regulation of transnational digital companies, such as Facebook, Google or Twitter.
Through their unique position as transnational platforms, result of their unique know-how and dominion over their markets, they developed globalized norm-like standards, creating complex quasi legal orders in virtual border-less areas which are formally private, but increasingly perceived as public. Each of the classic state powers can be found, in some way, in these companies which have been, so far, exempt from traditional accountability mechanisms duties of due process and respect of human rights, representing an unprecedented challenge to institutional democratic accountability.
By looking at Facebook as a case-study, an argument is made that international law must quickly overcome the dogma of statehood and tackle new state-like entities which do not formerly qualify as states, to avoid disastrous consequences for liberal democracies.
The Commission recently proposed a Regulation which aims to lay down uniform rules to prevent the misuse of hosting services for the dissemination of terrorist content online. Its subject matter amounts to an interference with freedom of expression to the extent that it brings within its scope speech protected under the EU Charter of Fundamental Rights and the ECHR. The Proposal has already sparked considerable controversy and triggered debate on its fundamental rights implications as regards freedom of expression but also other fundamental rights. If adopted, it will constitute a remarkable internal market legislation providing for a harmonised restriction of fundamental rights, with the aim to combat terrorism. This paper will investigate the proposed Regulation, focusing especially on the fact that, as an internal market instrument, it shifts an important share of the responsibility for addressing the problem of dissemination of terrorist content online to private parties.