The recent decision by Facebook and Twitter to deplatform former US President Trump after the January 6th Capitol Hill events has generated much public attention. However, social media bans as a form of digital punishment adopted by online platforms are not new. Today, the phenomenon of social media exclusion, arising when individuals are prevented from accessing social media platforms or parts of them, is very common. Over the past few years, various national courts in the US and Germany have attempted to address this issue, focusing in particular on its fundamental rights implications. Strictly speaking, preventing individuals from accessing social media does not nullify their constitutional rights. However, at the same time, without social media one could not enjoy her fundamental rights to such an enhanced level as has become standard in recent years. Curtailing the possibility of accessing social media should be subject to minimal constitutional safeguards. This blogpost will comparatively examine which measures have been put in place by national courts in the US and Germany to this end.
US and German case law: three types of social media exclusion
From an analysis of existing case law, it is possible to distinguish three types of social media exclusion on the basis of the actors and specific underlying factors determining the users’ exclusion.
A first example of social media exclusion that one can find in existing case law occurs when social media users are prevented from accessing specific portions of social media platforms by other users. In the US, this typology of social media exclusion has materialised in cases where citizens were prevented from directly interacting on social media with their elected representatives. The most notorious case involved the President of the United States Donald Trump. Since his inauguration, several individuals, after critically commenting on Trump’s tweets, were ‘blocked’ by the former US President. In 2017, seven individuals who had been blocked by President Trump on Twitter, together with the Knight First Amendment Institute at Columbia University brought a claim against Donald Trump, his social media manager and the White House Press Secretary.
A second type of social media exclusion arises where social media users are prevented from accessing a social media website by the platform itself. Donal Trump’s social media ban has recently gained much media attention. These cases are also common in German case law, where users were banned by specific social media providers for posting comments which allegedly infringed the terms of use of the platform, and in particular the prohibition of hate speech.
The third and last example of social media exclusion occurs where national law directly prevents specific individuals from accessing (some) social media platforms. Until 2017, in North Carolina, a national statute prevented registered sex-offenders who committed abuse against minors from using, once released, a broad range of social media platforms. The norm aimed to hamper access to a powerful means to identify and contact potential victims for individuals in this category. In 2010, the local police identified a post on Facebook in which Mr Packingham, a registered sex-offender, manifested his joy after the dismissal of a traffic ticket. For breaching his obligation not to use social media, Mr Packingham was convicted in the first instance, but subsequently succeeded in appeal, arguing that the North Carolina’s statute unduly restricted his right to free speech protected under the First Amendment. The case eventually reached the US Supreme Court, where North Carolina’s statute was held unconstitutional.
Lessons from national courts: comparative perspectives
Nowadays, social media have become constitutionally relevant because they are essential to the exercise of a series of fundamental rights. They represent a vital, integral component of the contemporary public space. Notwithstanding their private nature, social media are the square, the public garden, the streets of the twenty-first century. In the US and Germany, the essentiality of social media platforms in the contemporary architecture supporting the enjoyment of fundamental rights did not lead to imposing positive obligations on public and private actors. Nevertheless, national courts explicitly recognised the constitutional relevance of social media exclusion. Preventing individuals from using social media platforms or part of them restricts their capability to fully enjoy their fundamental rights. For this reason, the possibilities of imposing social media exclusion should be clearly limited according to constitutional principles. Over the past few years, national courts have progressively affirmed a series of basic guarantees, constitutionalising a space mostly subject to the internal rules of private platforms.
Recent US case law has imposed a series of obligations where phenomena of social media exclusion involved accounts of special categories of users, in particular politicians. The importance of introducing constitutional safeguards in these circumstances is apparent in light of the implications for other civil and political rights. Excluding individuals from accessing and interacting with content published by politicians on social media significantly restricts the enhanced possibility that online platforms offer citizens for engaging in the democratic life of their country. In the Trump case, where the US President blocked a series of opponents on Twitter, US District Judge Naomi Reice Buchwald held that the blocked individuals wanted to engage in political speech, a form of expression protected by the First Amendment, and demonstrated that Twitter’s interactive space could be considered as a ‘public forum’. For this reason, she concluded that President Trump was not entitled to block any users without violating their constitutional right to free speech.
US case law is also relevant in relation to cases having national law potentially restricting the possibility of individuals of accessing social media. In Packingham v. North Carolina, the US Supreme Court unanimously held that North Carolina’s statute preventing Mr Packingham from accessing major social media was unconstitutional. Even if the protection of minors is considered a valid governmental interest, the ‘unprecedented’ restriction of the scope of free speech engendered by the prohibition of using social media was deemed unacceptable. Imposing forms of social media exclusion is therefore admissible in principle, especially when justified by the protection of another fundamental right, such as the protection of minors. However, the respect of the constitutional principle of proportionality is essential when assessing the legitimacy of social media exclusion imposed by national law.
In the German case law, national courts dealt with the blocking or disabling of users’ accounts operated by Facebook. German courts affirmed that social media have, in principle, a right to ban users from their platforms by virtue of their ‘virtuelles Hausrecht’, their right as ‘digital householder’ to decide who enters their property and who has to leave. However, such a right of the virtual householder to ban users is not absolute, being subject to a series of limitations. According to German judges, the decision of a platform to ban a user should be objectively justified and not arbitrary; platforms’ policies on banning users should be based on objective criteria; a user’s ban should not be automatic; platforms’ sanctions should be proportionate, and in particular should take into account the seriousness of the offence and the previous conduct of the user.
National courts as constitutional catalysers
The analysis of US and German case law on social media exclusion confirms a central role played by national courts in constitutionalising the social media environment. National judges are the joining ring between two constitutional dimensions: state constitutional law and the internal constitutions of online platforms. The private space of social media, apparently ‘lawless’ from a state perspective, becomes constitutionally relevant because of the social, public implications of its use. National courts have established that internal rules of social media platforms, such as those related to the possibility of blocking or banning users, should be balanced with freedom of expression and cognate rights, and should respect the minimal constitutional principles proper of criminal law, such as legality and proportionality. National courts are progressively recognising the constitutional relevance of social media in contemporary society. They consequently reinterpret and translate traditional constitutional principles in light of the mutated context of online social platforms.
National courts serve as a catalyser of the process of constitutionalisation of the social media environment. They do not act alone. Legislators, although slowly, are intervening in tackling issues such as disinformation and prohibited forms of speech. The platforms themselves are introducing constitutional principles and mechanisms, especially in the context of content moderation, as Facebook’s Oversight Board demonstrates. Nevertheless, national courts play a ‘maieutic’ role in this context. They generate a virtuous circle by socratically stimulating and directing the process of constitutionalisation of the social media environment prompted by the other actors. Judges solve constitutional collisions between state constitutional law and the private constitutions of online platforms, in this way offering a path to follow in constitutionalising social media.
The constitutional relevance of social media was recognised by national courts in the necessity of establishing precise boundaries for the phenomenon of social media exclusion. Social media exclusion is a form of digital punishment: the virtual nature of this phenomenon does not exclude tangible consequences on our fundamental freedoms.
Posted by Dr Edoardo Celeste (School of Law and Government and ADAPT Centre, Dublin City University, Ireland)
Picture credits: Marco Verch, Creative Commons 2.0 [you can download this image in high resolution here]
British Association of Comparative Law 