Read the directive

Little is known about how to ‘regulate the Internet’…

Outline solutions, however, do seem to have to be found in ex-post mechanisms since Regulation (broadly speaking) understand ex-ante and ex-post mechanisms as a continuum, and since Regulators increasingly concentrate ex-post mechanisms in their hands as an effective way to ensure execution of the ex-ante prescriptions they themselves elaborated.

Ex-ante mechanisms aim at making algorithms more ‘loyal’.

As long as we hope for devices to be trustworthy and to be held accountable for their ‘loyalty’, we give merits to the idea that we probably should “take liability seriously”.                                                                                                                       

On June 14, 2016, the Californian father of one of the victims of the 11/13/2015 Paris attacks filed a suit in a U.S. District Court to prosecute Google, Facebook and Twitter. 

The legal dispute is clear.

The applicant based its claim to hold the companies liable on the grounds that they let terrorist groups use their networks: “The suit claims the companies “knowingly permitted” the Islamic State group, referred to in the complaint as “ISIS”, to recruit members, raise money and spread “extremist propaganda” via their social-media services”.

Conversely, the defendants unanimously claimed that they had actively implemented ‘policies’ against extremist material, and that they were working with law enforcement entities to improve regulations on the matter. Self-regulation and ethics versus common liability law.

The companies also pointed out the fact that they were not publishers, hence they could not face liability for the material users post on their networks. This is not, however, the issue at stake: the complaint concerns the use of the network not as a mere way to broadcast messages, but as a way to recruit murderers, provide them with convenient tools to communicate and to prepare criminal operations—allegations for which law does not exempt social media companies from liability.

These allegations are worth being ‘taken seriously’, should the law be unclear on whether the companies could be charged indeed, and should the total exemption from liability of such companies pleading for their ‘neutrality’ be the exception rather than the norm.

The question of principle is thus as follows: is exemption from liability of those who hold the ‘digital space’ together really the norm?

If so, their exemption from liability needs to be extended to a scenario that had not been covered by the law yet. If not, then common liability law is the rightful legal basis to assess whether the companies can be found liable or not—provided that a direct causal link between the unlawful act and an actual harm suffered by the applicant can be demonstrated.

The legal dispute is clear.

We hardly listen to to sermons. This is probably why Alain Supiot puts us on the table the text of Bossuet only occupying few pages, but since 1659 occupies the minds on "l'éminente dignité des pauves" (the eminent dignity of the poor). When Bossuet speaks of wealth and poverty, economists have interest in reading it. When Bossuet speaks of just order and "rightful place", lawyers must read it.

Alain Supiot comments it by writing to the following "Le renversement de l'ordre du monde" (The reversal of the order of the world).

Bossuet reminds that wealthy people think everything is owed to them while grace is given to the poor. Bossuet contends that rich people have interest to share with the poor, for thus it can alleviate the wealth that overwhelm them and they can enter the community (composed by the Church) in which poor people occupy the first place by natural order.

In his study, Alain Supiot looks back on the very definition of 'poverty', which accounts for the money the individual has. He takes up the theme of Bossuet to assert that, contrary to what the result of statistical methods (how much per person per day), the wealthy are "poor" since the market isolates them, spreading them of solidarity. Yet the natural order should lead them to share, by paying taxes, and other mechanisms through the welfare state. But he notes that the State departs increasingly this function, drawn in by this model only wealthy (the "rich-poor"), the only available model becoming what Alain Supiot calls "le marché total" (total market)!footnote-15.

We can no share this view of the world, for example if it is believed that the rich share (Social Responsibility Company theory), or if one believes that the state - sort of church - was often selfish, but already listen to the first advice: read Bossuet.

Reading the Union Address by President Barack Obama of the 21th of January 2015 themed fair sharing between rich and poor by public redistribution, we think back to Bossuet.

Read the text of the European Directive

Référence complète : Supiot, Alain, The spirit of Philadelphia: social justice vs the Total Market, 2012 (trad. de L'esprit de Philadelphie : la justice sociale contre le marché total, Le Seuil, Paris, 2010), 141 p. 

Complete reference : BERNS, Thomas, DOCQUIR, Pierre-François, FRYDMAN, Benoït, HENNEBEL, Ludovic and LEWKOWICZ, Gregory, Responsabilité des entreprises et corégulation, coll. "Penser le droit", Bruylant ed, Bruxelles, 2007, 226 p.

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Read the coverback (in French).

Read the table of contents (in French).

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Complete reference : Trébulle, F.-G., Stakeholders Theory et droit des sociétés, Bull. Joly Sociétés, 1st Dec. 2006, p.1337 . ; 1st Jan. 2007, p.1 et s.

Complete Reference : Trébulle, François-Guy, L'environnement en droit des affaires, in Mélanges en l'honneur de Yves Guyon, Aspects actuels du droit des affaires, Paris, Dalloz, p.1035-1059.