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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.

Procedure is that by which a body of law finds its unity: the right to an impartial tribunal, as stated in Article 6 of the European Convention on Human Rights, created a new unit in Regulation Law, as it also requires from Regulatory Authorities to "show" their impartiality whenever they act as courts.

Nevertheless, little by little, the national courts and the ECHR itself indicated the contours of this right, which cannot, admittedly, end up nullifying the effectiveness of the mission of Regulators.

It is assumed that whenever a Regulatory Authority intervenes whether in "civil matters", i.e., when it affects the civil rights or the property rights of a person, or in "criminal matters", i.e., when it sanctions a significantly serious behavior, the individuals that are exposed to the power of the Regulator are protected against it by the right to impartiality. Since the regulator has the power to judge, it also has to respond to the condition of impartiality.

As such, not only those within the Regulatory Authority involved should not be in conflict of interest or have already experienced the event (personal, subjective and/or objective impartiality), but the Authority in its organization and processes itself shall give to see its impartiality to the person who is threatened by its power- and, beyond, to the entire society. This objective structural impartiality is called after English law "apparent impartiality."

Yet such a structural impartiality is subject to conditions and limitations, which the 5th section of the ECHR reminded in its 1 September 2016 judgment about the French Autorité des marchés financiers (AMF)(French version only).

Read the analysis below.

Propos généraux sur les régulateurs et les juges

Articulation du règlement des différents par le régulateur et le juge de contrôle