23 February 2024
A2D for Researchers in Digital Platforms
Over the past decade, access to data (A2D) in digital platforms has emerged as a significant challenge within the research community. Researchers seeking to explore data hosted on these platforms encounter growing obstacles. While legal policies in the US have generally focused on establishing safeguards for researchers against the restrictions on access imposed by private ordering, the recent EU Digital Service Act (DSA) introduces a legal framework, which enables researchers to compel platforms to provide data access. These complementary legal strategies may prove instrumental in facilitating A2D for research purposes. Continue reading >>
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22 February 2024
A Systemic Approach to Implementing the DSA’s Human-in-the-Loop Requirement
Policymakers and the public are increasingly concerned about a lack of transparency and accountability in content moderation. Opaque and incontestable content moderation decisions have potential impacts on freedom of expression and media freedom, and well-known issues of discrimination and bias. Our focus here is on how Article 20 DSA can and should be interpreted going forward. Specifically, does Article 20 require a human content moderator to review every content moderation decision on request? And should it? Continue reading >>
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Pakistan’s Qazi Court and Who is Afraid of the Cricket Bat
In a fundamental misunderstanding of classical Islamic law, legendary sociologist Max Weber conceptualised it as ‘Qadi justice’ quintessentially characterized as an Islamic judge “sitting under a tree” handing out informal and irrational decisions. Weber may have been incorrect in his characterization of Islamic law, but the Qazi Court of Pakistan appears to fit that mould. In several decisions, the Qazi Court effectively condoned the unconstitutional delay in elections, suppression of the Pakistan Tehreek-e-Insaf (PTI) of Imran Khan’s election campaign, and turned a blind eye towards a campaign of repression by the military-backed establishment. However, the unkindest cut of them all to Pakistan’s democracy and the legitimacy of the elections was the Qazi Court’s decision denying the PTI its electoral symbol: the cricket bat. Continue reading >>Comme il faut!
Die für Ende Februar 2024 angesetzten Präsidentschaftswahlen im Senegal ließ der jetzige Präsident in einer Ankündigung aus Gründen von Streitigkeiten über das nationale Wahlgesetz ad interim aussetzen. Dagegen stellte sich daraufhin Mitte Februar 2024 vehement die senegalesische Judikative. Der senegalesische Verfassungsrat (Conseil constitutionnel) erklärte die präsidial angekündigte Wahlverschiebung für verfassungswidrig. Continue reading >>The DSA’s Trusted Flaggers
One of the most-publicized innovations brought about by the Digital Services Act (DSA or Regulation) is the ‘institutionalization’ of a regime emerged and consolidated for a decade already through voluntary programs introduced by the major online platforms: trusted flaggers. This blogpost provides an overview of the relevant provisions, procedures, and actors. It argues that, ultimately, the DSA’s much-hailed trusted flagger regime is unlikely to have groundbreaking effects on content moderation in Europe. Continue reading >>21 February 2024
The Legal Limits of Supporting Israel
On January 26, 2024, the International Court of Justice (‘ICJ’ or ‘the Court’) issued its provisional measures order on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel). This article provides an overview of the legal implications of the ICJ’s order for third-party states providing political, financial, or military support to Israel, including the US, Canada, the UK, Germany, and the Netherlands. I argue that the plausibility of genocide establishes the necessary evidentiary threshold to trigger state responsibility for third-party states on the international level as well as to initiate domestic legal proceedings. Continue reading >>Will the DSA have the Brussels Effect?
The Digital Services Act (DSA) is a comprehensive effort by the European Union (EU) to regulate digital services. Many on-lookers in Europe and beyond its borders wonder about whether the DSA will influence activities outside of Europe via a “Brussels Effect.” In this contribution, we argue that when it comes to extraterritorial spill-over effects of the DSA that are driven by economic incentives or de facto standardisation and private ordering. Continue reading >>
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Umweltverfassung in Aktion
Dass der Klimabeschluss des Bundesverfassungsgerichts Auswirkungen auf das Recht weit über seine konkrete Regelungswirkung hinaus hat, zeigt sich u.a. im aktuellen Doppelurteil des OVG Berlin-Brandenburg zur Verpflichtung der Bundesregierung, Sofortprogramme für die Sektoren Gebäude und Verkehr nach § 8 Klimaschutzgesetz (KSG) vorzulegen. Das OVG hat sich darin mit einer Reihe von umweltrechtlichen Problemstellungen in Zulässigkeit und Begründetheit befasst. Continue reading >>
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Autocratic (Il)legalism
It is a common myth that since the Fidesz-KDNP coalition has almost always had a two-thirds parliamentary majority since 2010, the Orbán-government could pass its illiberal legislative reforms in a legally correct manner. In reality, however, many laws that constitute the pillars of Orbán’s illiberal regime were enacted in violation of the procedural requirements of the rule of law. The European Commission’s country visit to Hungary provides an opportunity to remind the EU bodies of their responsibility to enforce all requirements of the rule of law without compromise. Continue reading >>
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Human Rights Outsourcing and Reliance on User Activism in the DSA
Article 14(4) of the Digital Services Act (DSA) places an obligation on providers of intermediary services, including online platforms hosting user-generated content (see Article 3(g) DSA), to apply content moderation systems in “a diligent, objective and proportionate manner.” Against this background, the approach taken in Article 14(4) DSA raises complex questions. Does the possibility of imposing fundamental rights obligations on intermediaries, such as online platforms, exempt the state power from the noble task of preventing inroads into fundamental rights itself? Can the legislator legitimately outsource the obligation to safeguard fundamental rights to private parties? Continue reading >>
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On the Politics of Non-Transparent Electoral Funding in India
Last week, a five-judge bench of the Indian Supreme Court delivered a significant verdict adjudicating the constitutionality of the Electoral Bond Scheme (“EBS”). The EBS introduced a novel method of making ‘anonymous’ donations to Indian political parties, both by individuals and a body of individuals. The judgment makes a democracy-enabling jurisprudential step in extending the right to information of voters to the details of political funding received by political parties in an effort to cement transparency and accountability as the central values of the electoral exercise. Continue reading >>
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20 February 2024
Towards a Digital Constitution
The DSA exemplifies the EU's efforts to create a fairer, more responsible digital environment. Through the DSA, the EU appears to be advancing a process of constitutionalisation of Internet governance, as an important milestone in the evolving landscape of “digital constitutionalism”, aiming to establish a unified framework of rights, principles, and governance norms for the digital space, while also contributing to the development of new governance structures and regulatory bodies dedicated to effectively safeguarding fundamental rights online. Continue reading >>
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European Nuclear Weapons
After Donald Trump’s announcement to withhold US military support in case of an attack on a NATO member by Russia under certain circumstances, a discussion has been sparked on whether Europe itself should have their own nuclear weapons for nuclear deterrence. However, given the progress in the legal framework of nuclear non-proliferation and nuclear disarmament, European nuclear weapons would violate international law. Continue reading >>Who’s Afraid of Militant Democracy, U.S. Style
Yesterday, Professor Samuel Issacharoff asked “Can it really be that one public official in Maine can remove a national presidential candidate on her say-so?” Professor Issacharoff and I, as well as every proponent of disqualification I know of, agree on a basic point. Right-wing populist authoritarianism cannot be defeated by legal decree. Government by the people cannot be maintained by means other than government by the people. Disqualifying individual candidates who resort to violence when they lose the vote, however, does not raise the difficulties that concern Professor Issacharoff and are consistent with democratic rule. Continue reading >>
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Diskursraumschutz durch hochschulisches Ordnungsrecht
Die Hochschulen waren von Beginn der bundesdeutschen Geschichte an Austragungsort politischer Konflikte. Ihre große Stärke liegt darin, ein Forum für die Versachlichung, wissenschaftliche Vertiefung und Reflexion dieser Konflikte zu bieten. Die Konflikte in den letzten Jahren haben jedoch plastisch gemacht, dass dieses Ideal eines wissenschaftlichen Forums kein Selbstläufer ist, sondern Steuerungsleistungen aller Organe der Hochschulen bedarf und häufig auch Präsidien und Rektorate in die Pflicht nimmt, Auseinandersetzungen zu begleiten, zu gestalten und ultima ratio auch Grenzen zu setzen. Continue reading >>How the DMCA Anticipated the DSA’s Due Process Obligations
Among other things, the new DSA requires platforms to provide “due process”-like protections for user-authors. This regulatory approach is an important Internet Law development, but it’s not completely novel. The DMCA also contains several due process-like protections for user-authors. This post identifies some of the DMCA’s due process elements, compares them to the DSA’s analogous provisions, and discusses the lessons from the DMCA for the DSA. Though the DSA uses a different policy paradigm than the DMCA, it’s unclear if it will achieve better outcomes. Continue reading >>
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The CJEU’s Feminist Turn?
In Case C-621/21, the Grand Chamber of the Court of Justice of the European Union (CJEU) held that women in general and women facing domestic violence in their country of origin in particular, qualify as a protected ‘social group’ under EU Directive 2011/95 and thus avail themselves for refugee status or subsidiary protection in the Common European Asylum System. This contribution applies the perspective of feminist approaches to international law to critically analyze what this decision means for women and victims of gender-based violence – in- and outside of the European Union. Continue reading >>
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19 February 2024
EU’s Involvement in the Renewal of the Spanish Council of the Judiciary
The growing political polarization of Western liberal democracies often leads to situations of political deadlock that require the intervention of an external authority capable of untangling the knot. After the second (fruitless) meeting held today between Commissioner Reynders and representatives of the Spanish government and the main opposition party, there is no simple solution in sight to an issue of the renewal of the Spanish Council of the Judiciary with significant implications for the immediate future of the Spanish political scenario. In this blog, I argue that underneath all the technical layers of legal order invoked under the generic defence of the rule of law, there are political and democratic debates for which the EU may play an important yet uncertain and questionable role. Continue reading >>Schutz ist gut, Vertrauen ist besser
„Wehrhafte Demokratie“, „Grundrechtsverwirkung“ und „Parteiverbot“ klingt es dieser Tage durch Straßen, Foren und Medien. „Endlich“ möchte man meinen, schließlich zeigen Beispiele in Polen, Ungarn, Israel und den USA, welch bemerkenswert fragile Gebilde Demokratie und Rechtsstaat weltweit sind. Die Forderungen zum Schutz der Verfassung sind nicht länger nur Parolen. Stattdessen gibt es inzwischen konkrete Überlegungen, das Bundesverfassungsgericht besser zu schützen. Entsprechende Überlegungen dürfen allerdings nicht den Blick dafür verstellen, dass auch eine erfolgreiche Reform beileibe nicht alle Gefährdungen beseitigen würde. Continue reading >>Restoration of the Polish Constitutional Tribunal as Reading the Constitution Forward
The question of how to restore the fallen and degenerated body that once was the Polish Constitutional Tribunal is finally to make its way to the Parliament this week. The stakes are clear: If we get lost in legalese and accept half-baked solutions, it will taint all ambitions and legislative projects aimed at restoring the rule of law in Poland. To avoid this mistake, the “fake court” should be “zeroed out” and newly appointed. Continue reading >>
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Trump’s Trials for Democracy
It is hard to imagine a stable democracy having to confront the legal challenges presented by Donald Trump’s bid for reelection. Courts have found him to be responsible for sexual assault, defamation and fraud, all in relatively quick succession. Taken together with repeated acts of demagogy and cruelty, the various legal proceedings reinforce the sense that Trump simply does not belong within the bounds of legitimate democratic contestation. But the charges against him thus far are civil claims that have no formal bearing on his bid for office. Nor do they seem to affect public opinion as the polarized electoral environment has little intermediate play that might be swayed by scandal, legal condemnation, or even the sense that enough is enough. Continue reading >>A Hobgoblin Comes for Internet Regulation
Recent laws in the US, along with the Digital Services Act (DSA), seek to provide “due process” for individual content moderation decisions. Due process, understandably enough, often contains a component of treating like cases alike. It seems to follow, then, that if two relevantly similar users are treated differently, there is a problem of inconsistency, and that problem might be addressed by requiring more “due process” in the forms of appeals and clear rules and explanations of those rules to offenders. But it is said that consistency is the hobgoblin of small minds. In internet regulation, it is a damaging goal if taken as a mandate to make individual decisions uniformly consistent with each other. Continue reading >>
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From the DMCA to the DSA
On 17 February 2024, the Digital Services Act (DSA) became fully applicable in Europe. The DSA's new approach fundamentally reshapes the regulation and liability of platforms in Europe, and promises to have a significant impact in other jurisdictions, like the US, where there are persistent calls for legislative interventions to reign in the power of Big Tech. This symposium brings together a group of renowned European and American scholars to carry an academic transatlantic dialogue on the potential benefits and risks of the EU’s new approach. Continue reading >>
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18 February 2024
The Triumph of Evil
Putin's regime finally murdered Alexei Navalny, a Russian patriot and freedom fighter. Regardless of how the events on 16 February unfolded, his death is a direct result of the actions of Russian state agents who had long been working towards his death. Putin’s belief in his absolute impunity, reinforced by appeasement, was a decisive factor that facilitated Alexei Navalny's murder. However, what happened to Navalny must not happen to Vladimir Kara-Murza, Aleksei Gorinov, Ilya Yashin, and many others. Navalny’s death is a huge loss for all Russians who believe in a free and peaceful future for their country, but also for Europe and the world. Continue reading >>
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16 February 2024
In Search of a Methodical Approach to Seat Apportionment in the European Parliament
The European Parliament is once again trying to tackle the problem of how to apportion its seats between member states. In one of those rare Treaty instances, Parliament is obliged to initiate this procedure itself [Article 14(2) TEU]. It has so far failed in this obligation, and finding a decent solution still proves difficult. However, on 14 February 2024, the Parliament’s Constitutional Affairs Committee (AFCO) organised a workshop to consider three alternative formulae, all of which respect the principle of degressive proportionality. The blog outlines these proposals and explicates the challenges of the search for a methodical approach to seat apportionment in the European Parliament. Continue reading >>
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Heyday of Autocratic Legalism in Slovakia
Slovakia’s parliament approved an amendment to its criminal code and associated legislation that, if it comes into effect, will significantly reduce the prescription periods for various crimes including rape, the penalties for others, and abolish the Special Prosecutor’s Office. Despite a narrative claiming to commit to restorative justice by reducing lengths for prison sentences and implementing a more diverse set of conviction options, the legislative changes perpetuate violence through autocratic legalism on the vast majority of the Slovak population, and especially those vulnerable to abuses of power. This assault on the criminal legal system in Slovakia by the ruling illiberal coalition is expected to put the Constitutional Court under pressure. Continue reading >>
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Why the Russian Constitution Matters
Russia’s failure to become a democracy after the collapse of the Soviet Union is not an inevitable product of its history. On the contrary, it has been shaped by the adoption of a constitutional system of centralised power in the office of the president. Long term democratic reform will require more than just Putin leaving the office of the presidency. Avoiding a system of ‘Putinism without Putin’ will also require a new Russian constitutional foundation that breaks with centralisation and reshapes the later structural chapters of the constitution to balance power between institutions. Continue reading >>
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