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You are here: BAILII >> Databases >> United Kingdom Journals >> The Dehumanisation of Law: Digital Reflections | Gervassis | European Journal of Law and Technology URL: http://www.bailii.org/uk/other/journals/EJLT/2012/03-3/102.html Cite as: The Dehumanisation of Law: Digital Reflections , Gervassis , European Journal of Law and Technology |
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Nicholas John Gervassis [1]
Cite as: Gervassis, N., J., 'The Dehumanisation of Law: Digital Reflections', European Journal of Law and Technology, Vol. 3. No. 3, 2012
This paper discusses particular instances of what we may broadly identify as phenomena of dehumanisation of law. The specific viewpoint that I am forwarding here finds the development of laws that regulate online behaviour and involvement to have gradually become disconnected from the general sets of fundamental principles that ultimately aim at protecting human dignity; the same principles that validated morally the Western liberal democracy in its historical development and juridico-political maturity. Certainly, such a general observation does not automatically imply, as far as our digital lives are concerned, an already accomplished or intentionally planned abandonment of the human rights defence in legal practice. It indicates, though, the waning of the human rights grammar across the structural apparatus of legislative production; where the quality of being human becomes only secondary, next to championing several other categories of interests that seem now in turn to grow comparatively stronger and to be systematically conditioning in general the contemporary legal decision making.
The following analysis is divided mainly into three parts. Part 1 prepares the ground, by articulating a thesis on the tendencies of dehumanisation that law manifests in general. Dehumanisation relates to the observed and consistent downplaying of the human rights ideal in modern legislation. Thus a basic conception of human rights is submitted that would therefore contextualise dehumanisation conversely, an outline of a human rights definition that also runs throughout the entire paper. The focus, then, turns on the manner in which dehumanisation progresses; three core determinants of the undermining of human rights in legal systemic life are emphasised as such and explored.
Part 2 takes the first step towards grounding the paradigm of dehumanisation in the reality of ICT regulation. A brief retrospective follows the gradual introduction in the US and the EU of the main framework legislation that determined Internet development and participation. Covering up until the end of the first decade of the 21st century, the overview hints at the unfolding of dehumanisation in the apparent intentions (and interests) which mobilised the particular regulatory interventions in the first place and of which the design and practical impacts of enacted laws give strong signals.
These notions are brought within clearer perspective during the main investigative task of Part 3. The methodological criteria which guide the analysis are introduced, and the overview of laws is being revisited and examined within the general lines of the dehumanisation thesis. The US and EU legislation streams are measured upon the neutralising effects with which they have allegedly surrounded the potential for fulfilling human rights in the emerging online world. A final, fourth Part reflects upon the conclusions of our assessment and on the meaning of the dehumanisation of the law that conducts our online life.
While we might find the idea of 'digital transitions' - i.e. the movement from the 'offline' to the 'online' - inspiring enough to re-think creatively the conceptions of 'human rights' and 'citizenship', from the viewpoint of law and human rights life on the Internet is to a certain degree 'business as usual.' After all, the problems with which human rights theory has been engaging for years always involved this coming into rupture with the established order of things; and they always called for challenging interpretations of law. Regardless, technophiles will usually rush into claiming new, 'updated' human rights declarations and such legal objectifications that would reflect with firmer expressions society's passing into the digital age. Our opening submission here opposes the technophile position: no, there exists no real requirement for establishing 'digital' human rights. What do exist there, though, are the idea of 'humanity' and competent blueprints of applied humanist justice that we find modern law to have incorporated and repetitively reproduced; these are backed by a long legal theoretical tradition which has explored exhaustively such issues of human transfer between contexts, and moreover the various ontological transformations that humanity undergoes within the responding social and juridical grammars. In the light of this background of legal analysis, online humanity portrays a mere instance amongst infinite other humanity instances across the juridico-political time and space continuum; and as such, it subscribes similarly to the basic constellation of human values and principles that law protects, and in the centre of which respect to life and human dignity shine most brightly.
And yet, although the Internet does not reinvent humanity as far as law is concerned, it does offer an opportunity to test contemporary law's will to affirm humanity anew. The online landscape constitutes a recently opened conceptual space to be reclaimed by human activity, where legislative interventions come in salient and more indicative of the intentions that they chiefly serve. However, where the era of information has been burdened with expectations of human rights triumphs, of democracy, of cultural and intellectual prosperities, we often turn with inquisitive attitude and doubt towards the eventually implemented normative order and its institutions. As the introductory synopsis proposed, contemporary law, in terms of the regulatory consistency that it demonstrates, can be found failing to realise the celebrated human rights project. Hence, the dehumanisation of law marks the general paradigm that will be explored in the following sections, while the question of 'how do laws treat humanity within context online?' calls upon the particular example on which we will work with more detail. Our focus is set upon humanity's digital migrating and law's responding degree of attendance to human rights, in the light of the as stated general circumstances. Herein is presented a basic understanding of human rights so as to provide a framework for the discussion of legal dehumanisation. It will be later on used more specifically, when we will return to the online context.
On the other hand, the term 'human right' denotes an attribute conveyed by formal norms which, independent of where the assumed primary regulatory function of these norms is located in law (e.g. Contract Law, Property Law, Family Law etc), it registers them under the humanist justice scope and its aims. This is a crucial point to raise and understand regarding contemporary law. When we look at law as a whole from the outside, we realise that human rights claim a high degree of infiltration in most areas of legal knowledge and practice. There exists a conceptual link which enables us to appeal to the human rights' protective reasoning, even in instances of litigation where the rhetoric of adjudication, pre-empted by the presiding character of the proceedings at hand (for example, the framework of understandings and formalities that underlies particularly a Contract Law dispute), fails completely to admit or even to acknowledge the existence of human rights grounds. We are not talking about 'stealing' areas of effect from one field of legal practice or the other with the purpose of high-handedly subscribing them to the defence sphere of human rights, but of recognising the protected human subject of law as present in every aspect of humanly experienced life that laws lean upon, be it family, work, education, politics, entertainment, offline, online and so on. From this perspective, human rights speak primarily of a reasoning in law for protecting the human being, and are not identified narrowly with those expressions of law that were formally branded as 'human rights' in the latter half of the 20th century and on. Under this light, Article 8 of the ECHR, the Fourth Amendment to the US Constitution, s13 of the UK Human Rights Act 1998, but also private law limitations to abusive exercises of rights or a claim that a contract is contrary to public policy, may all be considered to be iterations of the human rights ideology. [2]
Summarising, human rights leaked into Western liberal law a long time ago in their primal form of reasoning, to be then concretised as the underlying principles of national legal orders, and to reverberate throughout the spectrum of codes, statutes and common legal modules. This conceptualisation of an over-expanding and thorough structural infiltration across law defines the general human rights understanding that permeates the elaborations and arguments of this paper. Following that, we can recognise in human rights their concrete legal dimension (i.e. the various formal rules and operations that incarnate the human rights reasoning across a legal order) and, second, their moral component: the deontological proposition of an (ever) anticipated expression of law which ought to formalise ideally the precepts of humanist justice. By framing an articulation of the ultimate expectations from law the morality of human rights delivers a strong qualitative argument for scrutinising within the ongoing activity of law creation the will and capacity to foster the project of realising humanist justice. In the following Parts, our treatment of the content of this morality is loosely framed by the commonly familiar and comprehensive index of the Universal Declaration; while not cited nor mentioned, it should thus be considered performing from the background as the main guiding reference.
The almost non-existent enforceability within international and most regional regimes and the reluctance of nation states to fully abide by international obligations, mark this theme at top level. Even states that bear no substantial objections against the human rights content of treaties move on instead with taking reservations. [8] At the same time, in national settings the term 'human right' is neutralised, being either treated as a synonym to 'constitutionality' or exiled to a sphere reserved for legally not persuasive moral rhetoric. Overall, the plausibility of installing such structural limitations nourished further the plausibility of devaluating humanity in legal decision making and the practice modules surrounding it.
However, the development of international public security laws, following the call against terrorism, has now on many levels countered human rights (Scheppele K L, 2006; Bigo and Tsoukala, 2008). In parallel, global market-oriented legal regimes, backed by transnational mobilisations within bodies and agencies like the WTO and WIPO, have subsumed large areas of social life, fusing the rules of private economic activity and traditional public law meanings. The efficient performance of these rising orders is conditioned upon human rights being, firstly, neutralised partly in their reach and prowess, and, second, drawn away from spheres now assumed by private regulation. As a consequence, the thinning of human rights describes the danger of their transforming from norm to exception, waiting in the queue until other interests have been conciliated (Williams A T, 2007). Hesitation in the face of sometimes vague contingencies and politically indeterminate conditions that could potentially affect those interests creates fragile human rights entrenchments - easily subverted if necessary. [9]
This advancing of the market society, as Radin (1987; 1993) has consistently argued, works against human flourishing, for it values people and relationships for their monetary worth, rather than for their 'intellectual, emotional and social strengths and contributions' (Trebilcock M, 1993, p. 39). Instead, the universal market rhetoric commodifies these latter, turning them into tradable objects. Commodification means that personal attributes are viewed as private properties and may turn into fungible objects, i.e. alienable goods: 'replaceable with money' and passing 'in and out of the person's possession without effect on the person' (Radin M J, 1987, p. 1880). In this respect, Radin poignantly contests that freely commodified social interaction out-values its non-commodified analogues, first in market terms and from there in popularising practical understandings that hold in high esteem only what is marketed; that appreciate only where market value pre-empts general understandings of quality. [10] If there is no demand in the market, a property has no value. One would argue, of course, that human contact should not be intimidated by the market logic, since the two are seemingly irrelevant to each other. However, in essentially market-oriented legal systems, what fate awaits humanist values without value?
Growing in complexity, modern societies require increased sophistication and organisation in regulatory modes (a need allegedly motivated by the powerful dialectic of 'efficiency' and the rising modes of economic organisation that circulate it; Collins H, 1982, p. 114). We observe the technical development of law enrolling managerial rationales for its internal administration; for attuning, classifying and organising complicated deployments of rules. The levels of skill demanded for deciphering such intricate layouts and securing their effectiveness, necessitate, in turn, the services of studious attendants of the legal process. The transformation of law into a strenuously self-absorbed technical process finds lawyers performing as managers and, in the long run, refining their awareness of the legal systemic setup exclusively within a bureaucratic modus operandi.
Where lawyers subscribe blindly to posited formalities, without developing parallel critical understanding of the values platform that underlies the given legal order, they fail to distinguish the symbolic representations through which law performs (i.e. legal fictions), from the actual 'signified' entities and aims - from the real. Legal fictions become facts that supersede all other experienced accounts of life and reasoning. This becomes even more palpable where such comprehensions count heavily in law's internal processes of interpreting and circulating meanings, characteristically demonstrated in the meticulous dividing of law into discrete areas and branches, the likes of 'Property Law', 'Contract Law', 'European Law', 'Family Law' etc. These merely descriptive categories, which supposedly exist for assisting in the study of law, have turned into powerful images that dominate in a pre-emptive manner the understanding of law by fragmenting it. Being primarily embedded in education, they move on from there to determine, in a consequential manner, attitudes, behaviour, procedure and decision making in legal practice. As a result, they generate technocratic specialisations in the legal scholarship and profession, which distribute the further discussion of law's meanings between separate, insulated spheres. The treatment that human rights receive by legal practitioners cannot escape this apparatus: references to human rights can be conceived only in the narrowest sense, as either Human Rights Law in the international context or as fundamental rights claims within Constitutional Law procedures. Practice in most occasions - especially private law litigation - disregards invocations to the human rights argument as inappropriate and completely out of the given legal discussion's context.
Of course, we should consider that the positivist treatment is not genuinely inimical towards human rights. However, certain appreciations of positivism in the legal profession magnify the self-serving aspect of law's technical process, stripping off from it all cognition of contextual development. The contemporary legal experience is largely populated by procedural 'distractions' that subvert the consciousness of justice, as the means become an end in themselves.
The understandings and methodological approach which are guiding our explorations into the relevant legal landscape have been thus set on three basic premises. First, the dehumanisation of law signifies the diminishing of humanist justice in the laws that govern qualitatively our living experience. Second, dehumanisation is perceived where the capacity to exercise human rights within the given legal system undergoes notable concessions. Finally, where the dehumanisation criticism focuses on socially decisive choices that were made during the stage of the creation of laws, it is informed by the human rights morality viewpoint to assess the evidenced will for pursuing actively the humanist justice project within the regulated areas.
By reviewing historically the general development of Internet-related legislation at regional level in the US and the EU, we start answering the questions of how did law understand and approach humanity's migration to online settings, and, in addition, what was law ultimately aiming at for getting where it is now. The reason behind picking these two particular geo-political formations is their infrastructural and jurisprudential influence in shaping the Internet as it is today (in this respect, the constant migration of norms across the Atlantic cannot escape our attention, especially where being more frequently detected to be following through the years the course from the US to Europe). Moreover, both settings equally declare their serving of contemporary liberal democracy's maxims, 'competing friendly' with each other as global models in promoting and establishing human freedom and humanist values. It is interesting to measure how close to these declarations the incoming waves of Internet laws have come. They arguably construct the next stage of our digitally integrated society's cultural and economic evolution.
From this angle, assessing almost two decades of Internet legislative production upon its compliance with the imperatives of human rights that democratic states emphatically advertise in their domestic and international dealings, reveals the breadth of relevant possible action which law as a deliberate means can afford to realise. It shows how well - or not - the design of these laws connects with the overarching principles of human rights that supposedly underlie the legal systems under examination. By taking onboard the general narrative of dehumanisation, as this was previously argued that to be manifested across the entire construction of contemporary law, the more we move into the following overview, the various instances of ICT legislation are seen with a different eye. Alerted to the circumstances which disclose the advance of dehumanisation in practice (see above 1.2.1 - 1.2.3), we may find the continuity of the dehumanisation of law hidden beneath the legislative project of organising general online conduct. The retrospective in the next two sections (2.1 and 2.2 for the US and the EU framework respectively) covers loosely from the early US federal laws in the 1980s, up to the end of 2009 and the introduction of the revised EU Framework Directives.
In short, the 'notice-and-takedown' procedures of the DMCA were planned to operate as a liability neutraliser, where Online Service Providers (OSPs) were being held liable for copyright breach due to material displayed by users, and of which they had no actual knowledge. An IP right-holder that feels her rights to be infringed may send a notice to a content-hosting website that material uploaded by users is not licensed and infringes copyright; the contacted website should expeditiously 'remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity,' receiving in good faith the raised claim as true and thus legitimate. [16] Once the contested material has been neutralised, in order for it to be restored, the law provides for a complex series of communications exchange between the user and the OSP. Especially where repeated or improper takedowns can be facilitated by this extrajudicial process, the factual dangers of 'chilling effects' on online communications, of indirect exclusions from central Internet-based services, and of further exposure of individual users to expensive court battles against copyright giants, have been noted (Urban and Quilter, 2006). [17]
Quite early, the data protection framework was supplemented by Directive 97/66/EC, which aimed at setting rules and placing the user of electronic networks in the picture for said purposes (Rowe H, 1998). By adapting this latter law, Directives 2002/58/EC (ePrivacy Directive) and 2006/24/EC (Data Retention Directive) enriched the protection perspective for electronic communications, pinning it down within the online context. Generally, though, the overall framework, even from the days of the 1981 Convention, includes exceptions, which with the latest legislative additions tend to expand proportionately. Thus, exceptions are frequently allowed if necessary in a democratic society on grounds of national security, defence, public security, national or EU economic interests, public safety and suppression of criminal offences.
The Directive also takes a broad approach against the act and means of technological circumvention, embracing all direct and indirect infringement potentials. It does not specify whether measures that states will take in view of its implementation should be of civil, administrative or criminal nature (García Mexía P, 2009). That gap was halfway covered by Directive 2004/48/EC on the enforcement of intellectual property rights, which includes civil measures and remedies. [25] This latter Directive created a 'Right to Information' for right-holders to force judicially service providers to disclose to them personal information of allegedly infringing users. Moreover, empowerment of right-holders to seize private equipment and assets by virtue of potential risk only, without the other party having to be heard, as well the apparent widening of the Directive's breadth to include non-commercial violations, have raised controversy.
The EU legislative perspective remains consistent in furthering the project of liberalising the access services front as in amending the framework rules. [27] The latest 'Telecoms Reform Package' of infrastructure regulations had sought out in addition to address substantive matters. Thus, the legislative proceedings were considerably stalled as the drafting was brought under fire for sanctioning users with Internet disconnection on the basis of copyright infringements. After lengthy negotiations the amended Framework Directive included a paragraph that requires Member States to respect fundamental rights and freedoms of natural persons when taking measures regarding access to and use of electronic communications. [28] The insertion was hailed as a victory for user rights. However, as pointed out in commentaries, the general statement of principles provides for a deontological rather than a pragmatic regulatory prospect. In essence, the door to 'three-strikes' measures is still open and the text does not concern restrictions enforced by private actors.
We may now turn to analyse whether the argument of the compression of the human rights rationale in the scope of law, which was previously identified with the phenomenon of legal dehumanisation, applies to the case of the legal treatment of the online world.
The above overview portrayed two distinctive legislative continuities, that evolve as separate legal narratives by being contained in different jurisdictions, and, at the same time, in conjunction with each other: to an extent, together they tend to universalise particular legal dispositions, since they notably follow legal projects in common (e.g. IP protection after the WIPO Treaties) and share distinguishable regulatory similarities (e.g. ISP liabilities). This two-fold deployment of the breadth and range of the US and EU legislation flows should be also kept in mind, as we proceed with assessing their development under the examination scope of law's dehumanisation (3.2 - 3.3). Before continuing with the task at hand, though, we first need to tackle a few issues regarding, principally, the considerations of human rights (3.1) that ought to frame a dehumanisation claim which consistently responds to the presented Internet laws.
At the same time, contemporary law gives frequently the impression of severing in its procedures and practice the connection between human rights and citizenship. [29] We can argue strongly that such conditions that endorse this kind of separation should be considered symptomatic ('symptomatic' in the fashion that Part 1 discussed how the various dehumanisation mechanisms operate across conventional national settings), and that the particular undertaking they suggest is of rather fragile legal honesty; for in the end Western citizenship is widely regarded (and mostly self-advertised) upon performing as the institutional conduit for human rights principles. Hence, with citizenship being intrinsically linked to human rights, one may place within perspective any legislation that both in and through law determines the manner in which citizenship, as a matter of daily conduct, is exercised. This is where developing of the argument of dehumanisation comes in. Depending on the character of the regulatory foci that Internet laws bring into existence, the created contours of online participation may or may not provide space for stressing human citizenship; for example, economically driven laws translate citizenship and the activities that it involves under responding economic terms. [30] It is in this respect that the following evaluation of the US and EU Net-related legislation looks into the comprehensions of citizenship that the examined laws reserve and put indirectly in place for online participants. The question that we pose is not whether these appreciations are 'good' or 'bad', but whether they are humane; whether as a whole they leave a door open for the resulting further practice of law to interrelate to the human rights principles that are embedded within the Western liberal citizenship.
EU Internet-related laws provide for an opportunity to discuss dehumanisation from the perspective that we defined as 'internal to law.' This means that the evaluation of the laws we examined follows how well they comply with the European framework's pronounced capacities to realise human rights, considering that the EU order has declaratively absorbed the human rights rationales into its supranational legal systemic operations. The European institutional setup is committed to promoting the ECHR (even before Lisbon) and has integrated relevant values in its mechanisms, thus communicating specific expectations from the production of laws and judicial review proceedings.
On the contrary, a change of strategy is in line, where the relationship between federal US law and human rights subscribes tightly to questions of constitutionality and to the associated tenets of judicial review, an analysis perspective that lies beyond the examination scope of this paper. [32] The US federal Acts will be instead assessed upon the consequences they seem likely to deliver upon participants of online contexts. Indications of dehumanisation will be given where laws are contested to be contradicting substantially the requirements of humanist justice. As noted earlier, the understandings which will shape our human rights morality criterion derive remotely from the UDHR, recognising there a coherent summary of how human rights concerns should be instructing the forming of a legal order. In any case, the spirit of the UDHR meanings is used to that extent that it is accepted to be already included in the resident arrangement of fundamental rights and thus not contradicting the US Constitution. [33]
The DMCA's liability limitations exist mainly for defending the economic activity of Internet services from copyright owners' allegations of online copyright violations. On the other hand, apart from introducing its complicated and not really user-friendly 'notice-and-takedown' procedures, the Act backed up judicial mechanisms that are affordable to few. Such legal implementations refer directly to either of the two grounds that we noted. Hence, when we look into the matter of motivation, the law demonstrates clearly intentions to benefit industrial production and smooth economic function. However, taking into account that information and its flows constitute the lifeblood of online activity, this tailor-made and contained version of copyright may be challenged for being handed down in over-reaching exclusivity. Not only it could potentially impinge on online expression freedoms (Urban and Quilter, 2006); it may even be interpreted to be in tension with the fundamental objectives which copyright serves, if privileging the economic interests of creative industries over the online setting's actual creativity potentials. [38] [39]
On the other hand, completing the NET Act, the DMCA reconstructed in a sense in 'intellectual' terms the legal framework for material property, which considers wrongful appropriation of another's property in general to be a crime. The major difference to property, however, lies in the manner that IP ownership is distributed across society and its commodified character: while in tangible terms the acquisition and protection of material property covers the immediate life needs of all citizens, the plausible question to raise here is how much of a socially universal value, one that deems such protection to justify rigid erga omnes criminalisation, we can pragmatically appoint IP with? Whereas everyone can have a property such as a table, a wallet or personal valuables, criminalisation answers directly to public law concerns, serving to settle social disorder. If we were, though, to enquire how many social participants, in a given Western society, would benefit from the capacity to raise and pragmatically utilise an IP claim against others, we would have to look outside the masses of common citizens. In protecting exclusivity in commercial exploitation, such legal systematisations are sui generis specialised in supporting identified sectors of economic life and are thus not responding to the needs and values of the wider human citizenship.
The issue would have been less of a concern, if these laws really existed and performed in a separate bubble of business or competition law, and had not been actively posed against the public, nor they had infiltrated the public law sphere. However, IP laws prescribe criminalisation and excessively increased amounts for damages that equalise the individual user with the incorporated big business competitor. Hence, IP protection systematisations are erected that criminalise in favour of a minority of actors (corporate giants that, due to their dominance in media and entertainment markets, are perceived to be those mostly exposed to multiple IP violations) who are not defined socially by their natural human quality but by their economic function; and moreover these laws bread civil litigation where individuals end up facing multinational entities (Jenkins H, 2006). The legal regime that emerges turns protection into punishment as prescribing onerous sanctions. [40] In the eyes of law and according to the monetary sanctions it prescribes, 'illegally downloading' a few dozens of songs from the Internet may end up seeming more severe than causing personal injury. [41] Laws that criminalise as such by using the language of impartiality and equal treatment of the parties neither are impartial nor are serving equality. The decision of placing as equal highly differentiated entities, such as the individual user and the industry, is the product of a particular political consciousness; one that has failed to address the values of humanity, to thus become openly aggressive and inhuman.
But there is also an overarching theme that is becoming gradually visible at the sides of this discussion: the transferring of individuality and social activity in law from traditional understandings of citizenship to market relationships. The ACPA unfolds aligned to this general stream, where, for the purposes of legal protection, the structures that underlie the online interaction setting seem being identified singly with economic developments; the individual is appreciated for his functioning as a consumer. There is a broader understanding of important consequences for law, the Internet and society, which is examined below, along with the EU legal developments (3.3.1).
In any case, the outline of European law-making resembles the American in the exhibited regulatory attitude towards online contexts. With the exception of the first Data Protection laws (which came out considerably early in the development of a web-conscious Europe) the bulk of European Directives pursued to organise the emerging information society almost exclusively upon economic and market understandings. Therefore, we see the framework legislation on electronic signatures passing effortlessly as soon as in 1999, while indirect - only - recognition of a natural persons' right to access the Internet 'sneaked' into law as long as ten years later and in the aftermath of heated political debates.
The opposite, negative viewpoint sees the consumer being a conception valued under rules for a harmonised market and, as such, investing in the Rule of Law for producing valid judgements primarily within the commercial context. [44] Therefore realising human rights through commercially defined legal decision making comes only later and thus secondary. This appreciation holds that where internal market law has monopolised the parameters of social activity across Europe, the extensive replacing of the 'individual' or the 'user' in legal texts by an openly economic representation, neutralises other meanings of participatory identity, that being political or cultural. [45]
There seems to be little space for manoeuvring between the two conflicting insights. The positive approach stands correct in its structural interpretation of the relation between consumer and citizenship within the European legal order. However, it reaches to conclusions about extending human rights scrutiny in decision making that do not reflect on any confirmed practice or pragmatic interpretations of the existing potentials that EU law has to offer. We can accept, instead, that the negative approach comes closer to communicating the current framework reality, but this happens only partly since we can on courts to blunt the severity of its feared social impacts. There, the potentially overwhelming intensity of economic meanings can be softened by references to human rights principles (either EU or national), as commonly made in legal decision making. Thus, the term 'consumer' is taken in as the juridical means towards enabling the discussion on human rights to access the economically-reasoned law application scope.
However, even in this conciliatory resolution, which takes the furthest possible distance from delivering legal images of the consumer that, as implied above, would decisively undercut the exercises of political and cultural identity, one cannot escape being pessimistic about the underlying legal structures. EU legislative production over the Internet remains too fixed in the economic project of the market, which it then imposes further on member states and their national laws. The terms of entry to and exit from online contexts, while relating to social participation and development, are primarily determined in accordance with the market regulation mentality.
On the other hand, Directive 2000/31/EC reaches great lengths in constructing a competent representation of Internet participation that leaves no real margins for discussing the parameters of online life outside its commercial dimensions. All other possible discourses, developing around the relationships of groups and individuals with information artefacts, are pre-empted in the regulatory process by the Directive's over-encompassing perspective over the deployment and distribution of online content. A relevant example of pre-emptive effects poses the mechanism of the Copyright Directive: it prohibits the adoption of other copyright exceptions outside those that it specifically includes, interfering with the developing of cultural policies by Member States. [46] In this respect, individual states lack the flexibility to rewrite the domestic terms of engagement with information, if that were to possibly interfere with the currently dominant economic understandings of copyright. Note that alternatively the Copyright Directive is known as the ' Information Society Directive', an acceded signifier to the circulated hold of commodification over society's dealings with information and knowledge.
The described circumstances refer us back to discussing the role of commodification in generating dehumanisation (as above, under 1.2.2). We can argue that the Internet-related aspects of EU legislation are neither promoting the human rights discourse as a matter of underlying principle of community law, nor they are complying ontologically with it. While their effects might be eventually found overlapping with the aspirations of humanist justice, their defining of social relations subscribes to a different language and treatment framework, which subverts the litigation reasoning and practice. In citizenship the social participant is 'empowered' and reserves 'duties' from other entities; here, instead, the person acquires 'privileges' and others bear 'obligations' towards him, in a direct contractualisation of civic life. In this notion of commodification, those who cannot afford the market of basic privileges are excluded, to thus suffer degradation and indignation. The human rights doctrine had drawn the lines against turning fundamental social values into tradeable goods; now laws seem to have the growing tendency of crossing them again and again.
More strikingly, enquiries into the administration of human rights are frequently deflected by advancing streams of economic risk assessment and management. EU law has matched the US stance in stretching out copyright criminalities - of which we have already discussed the online and general social impacts. The Copyright Directive has been criticised for going even further than the DMCA e.g. in criminalising directly mere possession of anti-circumvention means, irrespective of mitigating circumstances or exceptions performing in the fashion of fair use (Spinello and Bottis, 2009).
Similarly, human rights protection ground is given away under the pressures which visible and predicted alike security risks impose. The Data Retention Directive of 2006 attempted to strike politically a balance between freedoms and effective crime investigation - incited mostly by fresh memories of terrorist attacks. [47] [48] Even under the legal regime which preceded Directives 2002/58/EC and 2006/24/EC, ECHR case law had already indicated loopholes and weaknesses in the mandatory retention of traffic data and 'detrimental effects on the respect of privacy' (Goemans and Dumortier, 2003, p. 178). While for some the package of specific law enforcement practices in the new laws legitimately and 'adequately protects' the right to privacy (e.g. Bignami F, 2007), many argued that it amplified existing problems and legitimised violations of the applied human rights protection regime itself. [49]
All things said, the thesis of the dehumanisation of law, as expounded here, approaches phenomena in Western liberal democracies that human rights theory would usually discuss in reference only to the involved political institutions' will to legislate, to give instead more emphasis to the structural neutralising of human rights that is concluded within given legal orders and through their practices. The example of the dehumanisation paradigm and focus of this paper, i.e. the regulation of the online world, sheds light on the particularities, which the broader phenomenon can claim in smaller scale regulation, and on the future of humanity, as hinted at in the processes of contemporary law.
The constant flowing of norms between the two jurisdictions which we examined, combined with the fact that globally dominant online stakeholders are primarily based in either the US or Europe, speaks of a geographically expanded order of regulation which has evolved into resembling a cross-border web. We can assume that the legislation developments from either side of the Atlantic show practical awareness of that. It is in this sense that online participants are trapped: the experience of the dehumanisation of law follows individuals in their transition from citizens to 'netizens', and will probably reflect the other way around, back to their national settings of origin. Therefore, the primary concern of our brief study's conclusions is this transformation of dehumanisation into transnational and along the lines potentially global currency. That is not so much regarding the manners in which the general phenomenon unfolds and that were analysed in Part 1. Here we go beyond that, to address particular dispositions towards the connection between humanity and online society that national regulations seem to be more ready to utilise and eventually universalise.
Online we exist both as pure data or information and as nets of relations to other users and OSPs ('I am because I am befriended on facebook'). Even more unlike the material off-line human, online we are only information and relationships. The Internet by design revitalised public communications space, expanding to all possible directions the as facilitated potentials for social progress and information-based human development. Yet, Internet-related laws and legal practices demonstrate signs of working against these prospects. They engage attentively enough with the economic hold of private industrial actors on information artefacts, to chill crucially the performance of social spaces and to interfere disruptively with the conception that the online public and its members exist online in (inter)connection with digital assets. In parallel, they exhibit as a whole the tendency of withdrawing from responding directly to those human rights concerns, which online participation in general has so far brought forward. In these laws that fail to understand this challenging development of humanity within electronic information ecologies, the human being is gradually being replaced with the 'consumer'; human rights values turn into one amongst other competing interests within the 'marketplace of ideas'.
Beneath the surface layer of legal practice, we come face to face with the deeper ideological impacts that these meanings and trends leave on the capacities which social perception and critique can reach in law. The absence of other values vantage-point to employ apart from the market sterilises our considerations of law, and the future of the civil discourse is pre-empted towards a single and not particularly appealing direction. For example, such impressions of US laws on courts lead to exclusively market-centred interpretations of IP fair use; that is, courts measure fair use primarily upon whether the industry suffers any harms, turning the actual user's rights that fair use serves (personal, political, cultural, social) into a secondary concern (Mazziotti G, 2008). Legal decision making that is not conditioned at all by humanity, discards humanity from its interests and ultimate aims.
At the end of the day, human rights defences are lowered within the laws that regulate society's engagement with the Internet context; humanity's resistances are weakening. Maybe another scope of protection, different to human rights in terms of reasoning basis yet similar in practical results could be proposed; for example, digital rights in a narrow political sense or as in tighter conceptions of civil law relationships between online actors and entities, could promote the same ends that the human rights discourse would likely pursue to realise in online settings. The fact remains, however, that law would be moving further away from expressing a genuine humanist interest. It can be followed that within such contexts that systematically privilege other discourses with increased access to regulatory control, human rights are bound to wither and along with them aspects of the social experience and vision to which we, as humans, are attached.
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[1] LLB (Hons.), LLM, PhD. First draft presented at the 'Human Rights in the Digital Era' Summit, September 2011, University of Leeds. The author would like to thank the editors for their assistance and patience and the anonymous reviewers for their valuable comments and suggestions. Email: [email protected]
[2] Barak A, (2001) argues on the nature and performance of general concepts in law such as 'good faith', 'reasonableness' and 'public policy', as also on forms of indirect human rights expressions that certainly pre-existed the more recent constitutionalisations.
[3] The Annual World Reports, published by the non-governmental organisation Human Rights Watch , offer a consistent through the years overview of failings in the application of human rights, available at: http://www.hrw.org/publications
[4] In this sense, being able to distinguish whether a human rights crisis instance is framed purely within the legal domain, or it is created due to direct or indirect exercises of political will, acquires considerable significance for the study of the involved sets of rules. For example, the fact that slavery has not been fully eliminated globally does not really tell anything insightful about the responses to human rights in the designs of law, where political intent governs matters of introducing relevant legislation or of enforcing effectively existing legislation. On the contrary, the presence of slavery in the human condition under different guises of servitude (e.g. power relationships that simulate serfdom) which have been legitimised in legal orders that otherwise enshrine expressively freedom in reference to humanist values, brings to the fore legal systemic inconsistencies and genuine legal failures.
[5] Hare (1989), pp. 148 - 149, alerts to dangers of abusing the appeal to human rights and of demagogy; when human rights are loosely used as 'an all purpose political weapon,' they are deprived of force - and credibility.
[6] For extended discussion on the issue of the horizontal effect of human rights see Friedmann and Barak-Erez (2001); on 'exceptionalism', i.e. a national jurisdiction's refusal to import human rights interpretations under the pretext of compromising the domestic constitutional order, see Ignatieff (2005) and Choudhry (2006).
[7] Here we may consider the example of the 'concentrated conservative opposition' to the 'expansion and enforcement of many individual rights,' which Moravcsik (2005), p. 176, theorises to be one of few decisive factors in the shaping of the US human rights policy.
[8] Moravcsik (2000), assesses the broader phenomenon of opposition by states against the binding effects of treaties in the development of international human rights regimes.
[9] For example, the ECHR provides for national laws to restrict human rights 'as is necessary' in the abstract 'democratic society' and 'in the interests of national security, public safety' and 'for the protection of health or morals.' The elasticity of 'national security' or 'morals' could easily excuse countless reductions in applied human rights.
[10] In this sense Radin (1987), pp. 1912 - 1913, discusses the effects of prostitution on society's devaluating appreciations of body integrity and sexuality in general, where 'all sexual relationships will become commodified.'
[11] Nino (1991) goes that far in this respect to argue that humanity's attachment to rights is coincidental, giving the impression to the observer that the former (i.e. humanity) conditions the latter.
[12] Farnsworth E A, (2010), p. 72, pointing also to the Supreme Court's nuanced stand on pre-emption in recent years. Note that federal copyright law, according to 17 U.S.C. §301 (a) and (b), in general pre-empts state copyright legislation.
[13] The CFAA provided against unauthorised access to government computers, but was later broadened to include private systems' protection; it has been subsequently amended several times and most notably under the 2001 Patriot Act framework.
[14] In the landmark court battle of Reno v. ACLU, 521 U.S. 844 (1997), where private sector giants were found fighting side by side with free speech campaigners and activists, the US Supreme Court struck down the controversial section 223.
[15] The Children's Online Protection Act (COPA) of 1998 was ruled too broad in its using of community standards for defining what harmful material is (interestingly, a settlement proposed later by the COPA pursued to measure protection of minors by Web's standard commercial life; American Civil Liberties Union v. Ashcroft, 535 U.S. 564 (2002); the 2000 Children's Internet Protection Act (CIPA) conditioned federal funding for libraries and schools for providing Internet access upon having installed filtering software, and thus passed the constitutionality test.
[16] 17 U.S.C. s.512(c)(1)(C)
[17] The 'Chilling Effects Clearinghouse' online project has for some time been monitoring and analysing content removals notices traffic, available at: http://www.chillingeffects.org/index.cgi
[18] Craufurd-Smith (1997), p. 92, notes that the four basic freedoms which the EC Treaty established (free movement of goods, services, persons and capital) were rather affiliated to economy implementation.
[19] Treaty of the European Union , Art. 6: 'The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.'
[20] Van Gend en Loos v. the Netherlands, case 26/62 [1963] ECR 1 (first confirmation of citizens' rights in applying Community Law); Stauder v. City of Ulm, case 29/69 [1969] ECR 419 (direct reference to fundamental rights and enforcement of the ECHR). Note that the Court has recognised further fundamental rights in reference to constitutions of Member States; some of these belong in the 'traditional' sphere (e.g. dignity, freedom of religion, respect of family life), while others speak the politico-economic reality of the market (freedoms of competition, trade, industry and profession); main case law listed under 2.1.0 ('Respect for fundamental rights in the EU') of the European Parliament Fact Sheets (2004 edition), available at: http://www.europarl.europa.eu/facts_2004/2_1_0_en.htm
[21] Article 1(2)
[22] Articles 12 - 14
[23] Article 15(1)
[24] Article 16(1)(e)
[25] Lucchi N, (2005), p. 147, discusses earlier drafts of the Directive, which had proposed, in addition, harmonisation of criminal proceedings.
[26] Directive 2002/19/EC (Access Directive ), Directive 2002/20/EC (Authorisation Directive) and Directive 2002/22/EC (Universal Service Directive).
[27] Directive 2009/136/EC amending Directives 2002/22/EC, 2002/58/EC and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws; Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 amending Directives 2002/21/EC, 2002/19/EC and 2002/20/EC.
[28] Article 1(3a)
[29] This is most characteristically exemplified where modern constitutionality has replaced human rights with civil liberties, to deal systemically with the relationships between state and citizen(s) within a particular jurisdiction. In doing so, law frequently confuses the two, sometimes rejecting the existence of a human right if the constitutional apparatus does not provide for civil rights action, on other occasions overlooking completely the conceptual link.
[30] That is, persons/citizens are perceived as agents within a context of economic relationships. Therefore, legal status, as well as correlations between rights and obligations, are all conceived and operate in direct reflection of these understandings.
[31] For example, the right to education (Raz J, 2010, pp. 335 - 336).
[32] Compared to other constitutions, which attain more to a declarative character, the US constitution emerges in content and operation as a distinctive, pragmatic political artefact. Being such, it differentiates considerably the absorbance of human rights norms in its national supra-state setting (Sunstein C, 2005) and also it lands human rights examinations in readings of the political balance that the constitution aims at in its systemic operation.
[33] Whereas Ackerman B, (1997), p. 773, points to UDHR meanings that are being integrally connected to the reasoning of the US fundamental rights, Ignatieff M, (2005), p. 1, reminds us also of the leading contribution of the US in drafting the Universal Declaration.
[34] 47 U.S.C. s.230(a)
[35] Admittedly, in this respect the line between conservative and humanist morality appears blurred. One, however, may address the particular legislative disposition in connection with other framework attitudes and developments, like, for example, the US being one of the two UN member states (the other being Somalia) that have not ratified the UN Convention on the Rights of the Child (CRC). (Of course, reluctance to ratifying the CRC speaks rather of US 'exceptionalism' and a general 'aversion to formal acceptance and enforcement of international human rights norms' in fear of 'international influences' over the integrity of the domestic legal structures; instead, as Moravcsik A, 2005, p. 182, observes, 'children's rights are already strongly embedded in national law.' However, as Moravcsik continues with explaining the general phenomenon of US exceptionalism partly upon 'conservative extremisms', he identifies particular conservative ideology streams, with strong presence and impacts, behind the opposition to the rights promulgated in the CRC. Conservative morality acquires there a prominent role in the eventual shaping of children protection policies.)
[36] Reading into the conceptual origins of the right to property, Locke related self-preservation to property as the conceptual means and ends for securing individuality. Through property related activity, the individual 'creates and owes value through his own efforts' and thus '[s]elf-reliance and creativity become the marks of human achievement, acquisitiveness the mark of self realisation and dignity' (Douzinas C, 2000, p. 83).
[37] In the digital world, where copying is a daily routine and integrated in Internet interfaces (Boyle J, 2008, p. 51) every use of content constitutes practically copyright violation (Lessig L, 2008, p. 100).
[38] The Copyright Clause of the US Constitution prescribes that the aim of protection is to 'promote the Progress of Science and useful Arts' (Article 1, Section 8, Clause 8).
[39] Lessig (2008), discusses extensively the approaches of existing copyright law frameworks towards the artistic and cultural creativity potentials that online contexts offer as misdirected.
[40] Weiss J, (2004), p. 333, wonders 'how would we treat [...] the bike that is really a phone bike-thief bait bike that explodes when someone tries to take it for a ride?'
[41] In the (still being appealed) Capitol Records, Inc. v. Thomas-Rasset, $1.5 million in damages were held against a woman for sharing online 24 songs (the amount was twice reduced to $54,000); similarly, Sony BMG Music Entm't v. Tenenbaum involved sharing 31 songs awarding $675,000 for damages. See Nicholds K, 2009; Cross K, 2010; Edwards M, 2010; Jamar S, 2010.
[42] For instance, preamble of Directive 2000/31, recital (10) (human dignity); preamble of Directive 2001/29, recital (3) (freedom of expression); preamble of Directive 2002/21, recitals (13), (19), (22) and (24) (considerations regarding public access to information, public interest, the public domain and health respectively).
[43] For example, Directive 2000/31 defines as consumer a natural person who uses an information society service, yet acts 'for purposes which are outside his or her trade, business or profession', Article 2(e).
[44] Mak C, (2008), observes that effective consumer protection has been openly acknowledged as the intended means for earning fidelity in the internal market.
[45] Helberger N, (2008), p. 386, notes that generally in copyright literature the consumer is conceptually found enclosed in 'the individual whose main interest is maximum consumption at the cheapest possible price.'
[46] As Mazziotti, G (2008), p. 115, points, though, through this manner is achieved the objective of harmonising national legislations.
[47] The bomb attacks in Madrid, 2004, and London, 2005.
[48] Preamble of Directive 2006/24/EC, recital (9) is indicative of the balance sought.
[49] OUT-LAW News, 09/04/08: 'Civil liberties groups challenge Data Retention Directive in ECJ', available at: http://www.out-law.com/page-9030
