Local rules of Internet communities in context of

protection of the freedom of expression online

Andrey A. ShcherbovichNational Research University – Higher School of

Economics(Moscow, Russia)

blogs (i.e. Livejournal); social networks (i.e. Facebook, Twitter); video-hostings (i.e. Youtube) ; other websites providing user-generated

content

Internet is evolving to make all the content in future completely creative

Internet is replacing traditional media and traditional channels of communication.

The most popular websites at present

Russian legal science doesn’t have any relevant studies analyzing user agreements on the Internet through the prism of the constitutional rights and freedoms,

Most studies of corporate standards and rules of the Internet in Russian and foreign legal science are mainly civil-law by nature.

Novation in the scientific legal research

User Agreement (License Agreement, Terms of Service) is a document that regulates the entire spectrum of relations between the owner, administration, and users of web resource.

Relations on the Internet can successfully be governed by internal rules.

However, practice shows that different user agreements are necessary, but obviously insufficient condition, to set relationships in the Internet in the legal framework

Definitions

Social (corporate) standards adopted by the subjects of Internet relationships

They express the will of their subjects They have mandatory force for them They do not come from any “central

authority” like parliament From the civil law POW, they are legally

binding contracts concluding by public offer.

Legal properties of the User Agreements

In case of user agreements, such aspects of contract, as the will and its authenticity, are unclear.

Could the expression of the will be understood in terms of the relevant provisions of the Civil Code, when it is transmitted by the Internet?

In terms of communication, could the error transmission of the will, be recognized as expression of the will in legal terms?

In accordance with article 168 of the Civil Code, the transaction that does not meet the requirements of law or other legislation, is negligible.

Weak points of civil law approach

In public-law relations, attributed to the subject of constitutional regulation, priority is given to human being as the basis of the constitutional model of relations between society, government and people.

Constitutional law regulates the most significant relations for the state and society, in order to achieve the most important interests.

Thus, the subject of constitutional regulation can be extended by the relations covered by the subject of other branches of law, like civil law

Prerequisites of the public-law approach

It is seen that general protection of users’ rights is only available for paid services of websites.

Paid services are subject to the protection according to the civil law.

Free-of-charge resources are used by «as is» mode. According to user agreement of Yandex: “You are

using Yandex services at your own risk. Services are provided "as is". Yandex does not assume any responsibility, including for compliance with user's purpose”

Inequality of users

All legal relations between users and administration are governed by the laws of the country where the resource is registered and the server is located.

Generally conflict of laws rules couldn’t be applied. Existing standards of user agreements on jurisdiction

substantially complicate lives of users from countries other than the one in which the resource is registered, makes it difficult or virtually impossible to protect the rights of those users legally.

Cyberspace should be treated as separate jurisdiction with their own rules, which reflect its unique character. Internal rules were designed as horizontal, in which the subjects of law are standing as their creators. Consequently, there is need for a new understanding of the Internet governance and territoriality in cyberspace.

Mismatch of jurisdiction

Registration required Possibilities for pre- and post-moderation of the

user-generated content In case of creation, deployment and use of user-

generated content site users are prohibited to make certain acts

Liability may range from denying access to the site (temporary or permanent), to more serious measures, like civil and criminal liability

Unclear wording and definitions create the illusion of informality and absence of the mandatory force of the rules, which can be easily circumvented.

General weakness of the user agreements

Wikipedia, which has 30 million active users, has unique in the Russian segment of Internet community of active users.

This community set their own principles of conduct with a low degree of formalization, proclaiming only “five pillars” of Wikipedia, governing relationship between its participants

The rules are not rigid and designed by the user community. Even users who have not participated in the creation of

rules, could monitor their compliance. Access to the logs (history of changes) of each Wikipedia

article is available to all users – so that all users may keep track of each other's work on updating articles.

Wikipedia as example of the best practice in the web self-

governance

The Code of Professional activities in the Internet developed by the Russian Association for Electronic Communications (hereinafter – RAEC).

According to the Code, owners of the recourses obliged to: ensure that the general terms and conditions of service available to all

users (both actual and potential) of their services. ensure that the provision of third party access to personal data is

carried out in compliance with the rules set by users provided the content (need for authorization, to setting a password, payment, etc.), and agreements (contracts) with these users.

are not responsible for user-generated content and is not obliged to carry out moderation and pre-moderation of content, if only it is not the purpose of this resource.

when received complaint for wrongful or unlawful user-generated content that contains the necessary information for the formal verification and reference to the exact address of the location of such content on the Internet, make efforts for blocking public access to this content.

RAEC Code of corporate standards

From a legal point of view of relationships on the Internet is relationship between the user (physical of legal entity) and provider, legal entity providing access to Internet or web resources.

Content provider should be distinguished from the provider of Internet access as a service connection.

The European Directive on electronic commerce provides that the administration of websites should:

Promptly remove infringing content; To be passive, that is not directly participate in the

activities of the user; Does not control user; Tend to receive remuneration for services rendered.

Delineation of responsibilities

1st approach: telecom operator is responsible for all actions of users

2nd approach: frees operator from liability for users' actions in that case, if he fulfills certain conditions related to the nature of service and interaction with other interested stakeholders, especially persons whose rights are violated by the actions of users.

3rd approach: telecom operator is not responsible for any actions of users.

Responsibilities of provider in Russian law

1. The need to streamline regulation.2. Revaluation of the legal nature of user agreements.3. New understanding of jurisdiction in cyberspace. 4. Establishment of the competent web communities.5. Revision of the standards of responsibility.

Conclusions

For all inquiries: dvbirve@yandex.ru

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