Cooperation, Contest, and Co-optation : Freedom of Expression and Positive Obligations in EU Social Media Content Regulation

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Title: Cooperation, Contest, and Co-optation : Freedom of Expression and Positive Obligations in EU Social Media Content Regulation
Author: Hiltunen, Miikka
Other contributor: Helsingin yliopisto, Oikeustieteellinen tiedekunta
University of Helsinki, Faculty of Law
Helsingfors universitet, Juridiska fakulteten
Publisher: Helsingin yliopisto
Date: 2020
Language: eng
Thesis level: master's thesis
Discipline: Valtiosääntöoikeus
Constitutional law
Abstract: The thesis analyzes how the EU regulates freedom of expression on social media and how the regulation transfers power. It interrogates EU’s positive fundamental right obligation to put in place a legislative and administrative framework to prevent and redress different online harms. By taking up a critical method that analyzes the contradiction between efficiency and democracy, the thesis focuses on the changes that are happening to positive obligations as part of the fundamental rights structure. The thesis links the structural changes to the advancement of neoliberal governmentality that favors managerial techniques such as cost-benefit analysis and privatization in government. After laying out the foundations, the thesis is divided into two parts. The first part departs from the observation that the EU has pressure to shift positive obligations regarding the protection of people’s freedom of expression and related rights to social media companies. It develops the general analytical framework of cooperation and contest which is informed by power struggles. In cooperation, the interests of the EU and the companies in rights protection are considered aligned. In contest, the focus is on situations where the interests diverge and where the EU and the companies deploy their respective strategies to assert their power unilaterally. The second part contextualizes the framework of cooperation and contest in three case studies. The case studies analyze three different initiatives to regulate social media introduced by the EU between 2016 and 2019. The initiatives are EU Code of conduct on hate speech, the revised Directive on audiovisual media services, and the Regulation on preventing the dissemination of terrorist content online. The case studies locate cooperation and contest in regulation through the analysis of relevant policy documents and other preparatory materials of the legislative processes. The thesis concludes that the emerging regulatory framework for rights protection exhibits hybridity that results from the interconnectedness of public and private power. While the framework can provide more effectiveness for the EU in protecting rights and public interest on social media, by deploying managerial techniques it also tends to sideline the considerations for people’s democratic self-determination, and reinforce the power of the executive and large social media companies. It is argued that new ways to enhance the horizontality of rights are needed for people to assert their rights against emerging hybrid power.
Subject: Freedom of expression
Positive obligations
Social media
Platform power

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