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< | Cross-border access to data? MLATs may still be the way forward! | >
> | Should we cancel “cancel culture”?
-- By JurriaanVanMil - 5 February 2019
This paper discusses the sensitive topic of sexually transgressive behaviour, and allegations thereof. This paper does not intend to discredit anyone’s feelings and story, but it nonetheless actively incorporates contingencies, such as “accusations”, “allegations” and “supposedly”, if the judiciary has yet to irrevocably rule on a matter. Moreover, the author apologies for any insensitivities from the outset. | | | | |
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< | -- By JurriaanVanMil - 11 Oct 2019 | | |
1 Introduction | |
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< | States have an interest in acquiring personal data for national security and law enforcement purposes. But which State can exercise jurisdiction over data? Is it the country in which the individual concerned resides? Is the country in which the online service provider is incorporated? Is it the country in which the data is stored and held by the online service provider? Or is it all of the above? States seemingly have set these jurisdictional considerations aside to facilitate cross-border access to data. To that end, States traditionally relied on Mutual Legal Assistance Treaties (MLAT). This mechanism has, however, its downfalls. Therefore, States recently started resorting to other instruments to ensure access to data, in particular a new mechanism introduced by the American CLOUD Act, and other States’ enactment of data localisation laws. But the former instrument may prove to be ineffective, thus potentially pushing States towards the latter, which has human rights implications. As such, States’ efforts should perhaps shift from enacting such laws towards amending and enhancing the MLAT mechanism. | >
> | A Dutch television presenter and YouTuber? was recently “cancelled” because of his alleged sexually transgressive behaviour towards pubescents and teenagers. The women concerned disseminated their revelations via Twitter; their tweets gained traction quickly. BNNVara and RTL, Dutch television broadcasters, and the Red Cross’ chapter in the Netherlands promptly cut all ties with the celebrity. The celebrity responded to the accusations by issuing a statement in which he apologies for his behaviour, and he points out that not all allegations are true. The women concerned have yet to file a report with law enforcement; the celebrity has, however, already engaged an attorney-at-law. Time must tell whether the criminal investigations and subsequent proceedings will be instituted against the celebrity, and whether public opinion will allow him to prolong his fifteen minutes of fame. This paper analyses “cancel culture’s” implications under freedom of expression law, procedural criminal law, and tort law from a European perspective.
2 Backdrop: democratic empowerment via social media?
Social media is a double-edged sword. It can empower individuals and undergird fundamental rights by providing a forum for information exchange and participation, on the one hand. Recent instances and research, however, show that those possible pros do not come without cons. For instance, “fake news” and “filter bubbles” likely exist on social media platforms, such as Facebook. Additionally, such platforms can abuse users’ personal data to push them personalised advertisements, which can subsequently influence users’ decision-making in economic and political contexts. Again, this paper analyses cancel culture in the context of social media.
3 Problem: Cancel culture
Before analysing cancel culture’s legal implications, this paper first provides a conceptualisation of the phenomenon. It refers to Urban Dictionary, an online slang dictionary, in this regard, which describes it as:
“_A modern internet phenomenon where a person is ejected from influence or fame by questionable actions. It is caused by a critical mass of people who are quick to judge and slow to question. It is commonly caused by an accusation, whether that accusation has merit or not. […]._”
Boycotting is not a new phenomenon, and participating in cancel culture can even been seen as an expression of agency. The internet has, however, amplifies and exacerbates the morally questionable conduct of boycotting, calling out or cancelling: individual appear to quickly cancel whoever for whatever on the world-wide platforms that social media are. Furthermore, as this paper discusses in the following paragraph, cancel culture also has serious legal implications.
4 Framework: the legal implications of cancel culture
4.1 Freedom of expression law
Pursuant to the European Convention on Human Rights (*ECHR*), everyone has the right to freedom of expression, which also covers expressions that offend, shock and disturb. Furthermore, the allegations regarding the celebrity’s sexually transgressive behaviour likely contribute to the current public debate regarding the #MeToo movement and may, therefore, service the public interest. Besides, the celebrity can be subjected to more scrutiny if he indeed qualifies as a public figure.
The right to freedom of expression is, however, not absolute. In the present case, that right of the women concerned must be balanced against the celebrity’s right to privacy, among others. Furthermore, the exercise of the former human right is subject to duties and responsibilities. For instance, journalists must adhere to journalistic ethics and standards, and whistle-blowers must first disclose perceived wrongful conduct to competent authorities. The present accusations are severe, and it is unlikely that the women concerned conducted adequate due diligence before speaking out on Twitter. More importantly, the women have yet to file a report with law enforcement.
Could the women concerned have approached disclosing their experiences differently? For instance, Dutch news outlet NRC conducted adequate due diligence before publishing an investigatory report on the alleged sexually transgressive behaviour of a former Professor of Law of the University of Amsterdam, at least according to the Court of Appeals Arnhem-Leeuwarden.
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> | 4.2 Procedural criminal law
Cancel culture also has implications under procedural criminal law. The presumption of innocence, a principle of customary international law, prescribes that everyone has the right “to be presumed innocent until proven guilty”. Even though that principle operates in the context of adjudication, coverage in the media and on social media can have an impact on criminal cases. Caution is, therefore, needed. Again, the women concerned have yet to file a report with law enforcement.
Moreover, cancel culture raises the question of how victims perceive justice. A recent study coined the term kaleidoscopic justice: “justice as a continually shifting pattern”. The study identifies several key justice themes, including consequences, which covers more than mere punitive action. Perhaps the design of established legal systems diverges from the perception of justice of victims of sexually transgressive behaviour, especially when the perpetrator is experiencing his fifteen minutes of fame. One of the women concerned stated that “it had to come out” (“_dit moest eruit_”). | | | | |
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< | 2 Mutual Legal Assistance Treaties
States’ ignorance to these jurisdictional considerations can be attributed to their mutual interest in cross-border access to data. Rather than discussing these implications and the politics related thereto, States enter into MLATs to get their hands of data stored and held abroad. Generally speaking, an MLAT calls for the domestic judicial review of foreign States’ individual access requests. This procedural aspect can potentially safeguard the fundamental rights at stake. However, critics argue that this procedure is cumbersome: it brings considerable administrative drag with, and is time-consuming. Consequently, critics hold that this ad hoc legal mechanism does not provide swift cross-border access, in particular to ephemeral data, and should thus be subject to review. | | | | |
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< | 3 CLOUD Act
The CLOUD Act should, inter alia, establish a smooth-functioning and quick mechanism for foreign States to acquire data regarding their citizens, which are stored and held in the United States, for investigatory purposes. To that end, it allows foreign States to enter into executive agreements with the United States that allows them to request such data directly from American online service providers. Before the conclusion of an executive agreement, the executive must first certify a foreign State. Certification is contingent upon compliance with a baseline of substantive and procedural requirements, and the determination thereof cannot be subject to judicial or administrative review. Congress can, however, disapprove a specific executive agreement. The certification process aims to safeguard privacy and civil liberties. Unsurprisingly, certification can thus depend on foreign States’ adherence to international human rights obligations. Besides, foreign States have to grant the United States a reciprocal right to access. Moreover, concluded executive agreements are subject to periodical review of compliance. Under executive agreements, foreign States can order data regarding their citizens directly from American online service providers. Such an order too has to comply with substantive and procedural requirements. Online service providers seemingly have to assess whether an order satisfies these requirements. | | | | |
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> | 4.3 Tort law
Lastly, cancel culture can lead to defamation lawsuits. In the present case, the allegations of sexually transgressive behaviour encroach upon the celebrity’ reputation. Companies which the celebrity used to work for quickly let him go once the controversial tweets went viral. Again, this paper raises the question of whether the women concerned could have approached disclosing their experiences differently. Besides, damages can be proper when the Dutch Public Prosecutor refrains from prosecution or the judiciary acquits the celebrity. Are the women concerned ware of the de jure tortious nature of their revelations, and of the possibility of subsequent civil law litigation? | | | | |
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< | 4 The shortcomings of the CLOUD Act
First, the United States unilaterally imposes a baseline of substantive and procedural requirements on foreign States with the CLOUD Act, whereas MLATs theoretically called for a bilateral or multilateral discussion on the substance of treaties. This Western Imperialistic aspect of the CLOUD Act is exacerbated by the fact that the United States was the first to introduce this mechanism of executive agreements. A similar mechanism is currently being legislated by the European Union. In relation to the foregoing, the United States seemingly disregards the economic, legal, philosophical and political differences between States. By and large, it provides foreign States with a take-it-or-leave it choice: either comply with a specific set of requirements – that may go further than what international human rights obligations require –, or rely on an apparently outdated mechanism. It is likely that Western States will enter into executive agreements with the United States – the United Kingdom recently did so –, whereas non-Western States are likely to continue using MLATs or to resort to other instruments like data localisation laws. As such, a fragmented and piecemeal framework is to be expected. | | | | |
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< | Second, executive agreements are not subject to proactive and retrospective judicial review, whereas MLATs generally call for domestic judicial review of foreign States’ requests to access. Rather, the American executive and legislature decide a priori whether the United States should enter in an executive agreement, and they conduct a periodical review of compliance. These branches of State have a much stronger interest in a swift reciprocal right to access than the judiciary does. Furthermore, the CLOUD Act seemingly requires online service providers to assess the legality of foreign States’ orders to access. This form of privatised adjudication raises questions regarding appropriateness, capacity and competency. This can result in two practices. On the one hand, online service providers can be expected to promptly honour orders to access without a rigid review thereof. Afterall, the executive and legislature endorse the executive agreement, thus orders of access issued pursuant to that agreement must legitimate. On the other hand, online service providers can be expected to be sceptic of foreign interference, thus honouring only very few orders to access and forcing certified foreign States to rely on MLATs once again. | | |
5 Conclusion | |
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< | From the outset, both the CLOUD Act and MLATs do not sufficiently discuss jurisdictional considerations at the global level. However, MLATs do call for a bilateral or multilateral conversation between States, thus potentially better reconciling fundamental differences between States. Furthermore, the CLOUD Act’s other shortcomings are better addressed by MLATs (judicial oversight) and seemingly push foreign States to still rely upon MLATs. Given the standing relevance of MLATs, States in general should enter into a constructive discussion about amending and enhancing this mechanism. For example, States can agree upon standardized digital protocols and forms. They can also create specific procedures for high-impact crimes and establish a specific specialised department that processes all incoming requests. | >
> | By and large, cancel culture has serious legal implications. This paper does not propose a quick fix; the topic is very complex, and it easily concerns delicate and sensitive matters such as sexually transgressive behaviour. In correspondence with a central message of the course, this paper does stress the importance of making individual aware of their actions on social media and the (legal) consequences thereof through education. Education should be provided in multiple contexts, including: at home, by primary caregivers, and family and friends; at school, by teaching staff and – to some extent – peers; and on social media platforms, by the platforms themselves. Moreover, this paper stresses the need for further interdisciplinary research into social media ecosystems: why do people participate in cancel culture, and are they familiar with the legal implications thereof? | | |
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