Internet content regulation in the context of legal and extra-legal global trends

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Introduction

In 2024, the Works on Intellectual Property Journal (hereafter referred to as “WIP”) will mark its 25th Anniversary. This is a significant milestone for both the journal and its audience, as well as for me personally. I had the privilege of being one of its dedicated readers from the early editions, later became one of its authors, and eventually, after earning my doctorate, was invited to be part of the Editorial Board.

A quarter century has passed since its foundation in 1999 and the carefully selected papers reprinted in this Digest WIP showcase its development and achievements. Since its inception WIP has been the only Russian law journal focused on interdisciplinary research encompassing intellectual property and information law, two broad bodies of law that were historically viewed by legal doctrine as separate and self-sufficient. The policy of overcoming fragmentation of the different branches of law as well as promoting free debate and fresh ideas was first introduced by M.A. Fedotov, WIP founder and irreplaceable Chief Editor, and later on passionately preserved by Editorial Team and Board. The latest innovation is the annual Digest WIP itself as there has been no special annual issue before.

I chose Internet content regulation as a subject matter of my paper for Digest WIP because it fits the main already mentioned WIP features. Content regulation can be found in different branches of law and questioning it from the perspective of comparative legal analysis and global trends is a hot issue deserving to be addressed by WIP as a forum for differing opinions.

The recent developments in internet content regulation across countries

The term “censorship” is, in fact, an overused buzzword. Nevertheless, considering its historical use and meaning, the concept probably deserves more attention. Besides, even if the term “content regulation” is more common in the legal field, it has lately become equally common [1, 2, 3, 4] to use the term “censorship” to describe rules that restrict access to and dissemination of information on the Internet. An essential principle behind abolition of censorship is that it should not be the state’s role to decide what is read, written, and communicated. But our current Internet content regulation does the exact opposite. If we look at the main reasons justifying such regulation it is not that difficult to find some degree of similarity with laws and regulations concerning censorship.

For instance, during the discussion of a new Russian Press Regulation intended to abolish censorship in 1905, a former head of the Chief Administration for Press Affairs, N.V. Shakhovskoy, argued in defense of rigid control over publishing activities that “the Russian people, with their low literacy and their unconditional trust in the printed text, which they always consider to be allowed by authorities, must be protected from the influence of political propaganda and attempts to forcibly change their worldview by means of the press” [5].

There was no Internet with its global connectivity at that time but, taken generally, the current content regulation does not conflict with the above quote: by introducing new content restrictions countries from different parts of the world prioritize the protection of their citizens, albeit the understanding of what counts as legitimate or harmful content varies a lot. The same as censors checked books and papers before their publishing and in case of repeated violations could close a particular editing house, Internet service providers are intitled by the state to do both, moderate content, and block infringers. Sometimes the state decides to act on its own.

In May 2024 as a new development of its package of sanctions the EU banned another four Russian media channels (Voice of Europe, RIA Novosti, Izvestia, Rossiyskaya Gazeta) [6] in addition to ones blocked in 2022 (Russia Today, Sputnik, RTR Planeta, Russia 24, TV Centre International) [7, 8]. Before 2024 Russia banned only Facebook and Instagram¹ but no one European media. After the EU Council decision the Russian Federation answered by “countermeasures” and limited access to 81 European media outlets [11]. The accusations of both sides concerned false information: the EU Counsil mentioned in its Regulation “media manipulation and distortion of facts” [8, p. 8] and Russian authority claimed a systemic spread of “false information about the special military operation” [11].

Another prominent example illustrates a different reason to introduce content restrictions, namely national security. As early as 2009-2010 China blocked access to most of the US big tech companies such as Google, YouTube, Twitter, and Facebook in 2009–2010 [12, p. 28] and The New York Times in 2012 for harming its national cyber security and sovereignty [13]. In the same vein the United States passed a special act in the 2024 according to which ByteDance owned applications would be banned unless the company would have to divest within the set time limit [14]. According to the report accompanying the Bill “This Act addresses the immediate national security risks posed by TikTok and establishes a framework for the Executive Branch to protect Americans from future foreign adversary controlled applications” [15, p. 2].

The given examples are singular and difficult to generalize as they reflect the current state of relations between specific countries. What could be qualified as a trend in the development of content regulation is a dramatic increase in laws addressing misinformation, disinformation, and mal-information (MDM).

In just 11 years, from 2011 to 2022, 78 countries around the globe passed 105 laws to combat MDM, according to a study by the Center for International Media Assistance (CIMA) [16, p. 4–6]. The upsurge in legislative activity was firstly observed in 2020 when 36 laws were adopted during the Covid-19 pandemic (see [17, p. 2636; 18, p. 41, 67, 19, p. 154]). Besides uncovering the dynamic of lawmaking CIMA analysis highlights a visible trend towards the criminalization of false information. More 60 % of laws analyzed by the researchers contained provisions concerning both admirative and criminal liability. Within the same period of 11 years the number of journalists imprisoned on false information charges increased sharply, from 22 between 2011 and 2015 up to 228 between 2016 and 2022 [20]. Of particular concern is the scarcity of definitions of the basic concepts, such as “disinformation” or “misinformation”. The CIMA report indicated that the MDM laws adopted between 2011–2021 “lacked definitional specificity” which could lead to overenforcement.

The European Regulators Group for Audiovisual Media Services (ERGA issued a regional report on the same issue and with similar findings [21]. According to the report, there are few examples of legislation in EU countries that contains definitional elements for disinformation. The key elements to define disinformation can be found outside legislation in official documents issued by state authorities, guidelines, and courts’ decisions. In this regard the report highlights that criminal law with vague definitions “creates risks of even more serious interferences with freedom of expression” [21, p. 84]. The shortcomings of the legislation relevant to European countries is also applicable to many other countries, both developed and developing.

Human rights approach to internet content regulation

The United Nations instruments and documents provide a human rights framework to determine weather content restrictions are legitimate and justified. UN Special Rapporteur on the right to freedom of opinion addressed content regulation issues in several reports on disinformation, user-generated content, and more generally contemporary challenges to freedom of expression. Specifically in relation to the moderation of user-generated content the Special Rapporteur argued that the restrictions introduced by states, even if they are caused by legitimate concerns, carry risks to freedom of expression. The laws and provisions should comply with the requirements of legality implied by the article 19 (3) of the International Covenant on Civil and Political Rights. One of key requirements is a clear wording, since “a norm, to be characterized as a “law”, must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly” [22, para. 25]. In addition, the legality of law in force should normally be subject to judicial control [23, para. 7]. The laws on “fake news” often have “the vague and overly broad nature” that gives governments and executive authorities “unfettered discretion” leading to power abuses, and is particularly “problematic” when it comes to criminal law [24, para. 52–55]. This assertion rests on the premise that flaws in Internet content regulation are equally prevalent across nations with diverse legal and political frameworks. The best intentions and legitimate grounds of enacting particular restrictions (such as state security or public interests) do not preclude the negative and sometimes detrimental impact on the basic freedoms related to information.

Content regulation focuses heavily on disinformation, at least to some extent, to the prejudice of other types of content. It is understandable because the attacks against journalists and the human rights defenders based on the disinformation allegations are widely reported and the assurance of the freedom of media is one of the pillars of modern democracies. It is most likely wrong, however, to view user generated content as secondary. User generated content comprises all aspects of social communication, including sharing of ideas, mutual learning, cooperation, and creative expression. And healthy online communication driven by free access to information and cultural diversity is one of the main tools enabling critical thinking.

John Stuart Mill believed in “the necessity to the mental well-being of mankind (on which all their other well-being depends) of freedom of opinion, and freedom of the expression of opinion” [25, p. 118]. It is because the pursuit of truth in at the heart of the progress of any human society. Whenever there are persons who disagree with the unanimous majority, “even if the world is in the right, it is always probable that dissentients have something worth hearing to say for themselves, and that truth would lose something by their silence” [25, p. 114]. That means that a progress of any society depends on intellectual endeavours competing to discover or create something valuable, and the effective functioning of an “innovation engine” as well as political system directly depends on the variety of ideas it produces. Freedom of speech is also of great importance in the case of user generated content where censorship can be carried out by different means, including copyright law.

In this context two points stated by UN reports concerning Internet content and freedom of expression deserve attention.

The first one is the emphasis on a chilling effect on information freedoms caused by Internet content regulation. The growing Internet surveillance carried out by both states and private actors was considered in the report as capable to produce “a chilling effect on the online expression of ordinary citizens, who may self-censor for fear of being constantly tracked” [26, para. 52–55]. The use of “broad and ambiguous laws” to control content dissemination was also referred to as one of sources of “a broader “chilling effect” on the right to freedom of opinion and expression” [27, para. 26].

The term chilling effect originates from the case law of the United States Supreme Court. Justice Brannan in his dissenting opinion in Walker v. City of Birmingham described the judicial application of the chilling effect doctrine as the court’s “overriding duty to insulate all individuals from the “chilling effect” upon exercise of First Amendment freedoms generated by vagueness, overbreadth and unbridled discretion to limit their exercise” [28].

Later, the term acquired popularity and has been used far beyond judicial practice and unrelated to geographical area. It has also been widely criticized put on sufficient empirical evidence. Recent comprehensive research by Jonathon Penney not only provides an empirical proof but also offers a sound interdisciplinary framework intended to deeply understand the phenomenon of the shilling effects [29, 30, 31]. Among other things drawing upon the findings of social psychology the research analyses why some kind of ill formulated laws produce chilling effects. A “theory of chilling effects as social conformity”, according to the author, provides a most effective explanation of surveillance practices. As surveillance is inherently ambiguous, “being uncertain about the legality of an act may lead a person to over comply with law in order to avoid breaking a social norm, awareness that you are being watched increases the risk that your norm breaking could be seen or captured by others, increasing the likelihood of conformance and compliance” [29, p. 1508].

The second important point concerns copyright law in the context of freedom of expression. The UN Special Rapporteur referred to prior restraints included in copyright laws that threaten creative endeavors and a preventive upload scanning of music and video for copyright infringement that results in overblocking [23, para. 17, 32]. The reference to copyright law is notable since all previous reports dealing specifically with intellectual property were only produced with respect to cultural rights [32, 33, 34], the right to food [35; 36, para. 30, 45] and the right to health [37]. The potential conflict of copyright with free speech was previously identified only with regard to disconnection of users from Internet access as a sanction for violation of intellectual property rights [27, para. 49–50, 78–79].

Considering copyright law from the perspective of freedom of expression is especially important in the case of Internet content regulation. The interconnection and potential conflict between these rights remains up till now a blind spot in the Russian IP law and jurisprudence. It has also been a difficult issue for European law. Bernt Hugenholtz explains the recognition of the collision between free speech and copyright by “the seemingly unstoppable growth of copyrights”. The protection of right to freedom of expression and information in this context was perceived as the tool to limit “overbroad protection” [38, p. 343].

With the recent development of legislation and case law on the issue the argument that the basic principle of idea/expression dichotomy together with statutory exceptions is sufficient to prevent or solve potential conflict between copyright and freedom of expression becomes ever less convincing.

Kantian philosophy is one of relatively recent justifications for applying freedom of expression as a remedy in intellectual property cases [39, 40, 41]. In his short essay “On the Wrongfulness of Unauthorized Publication of Books” of 1798 Kant instead of considering copyright from the perspective of a Lockean property theory described the book as a tool or a “silent instrument” (by analogy to trumpet). that the author uses to deliver his public speech. According to Abraham Drassinower a book is not a thing but a “communicative act”. “In the world of copyright, an author is no sovereign despot in an inverted world of commodities. She is rather a citizen among others in the great Republic of Letters” [42, p. 226]. This implies that copyright law main task is to provide conditions for an effective dialogue between the author and the public. It is appealing to justify the overall reasons why we should limit copyright protection based on Kant’s philosophical endeavour into what is to be an author. Even more inspiring, to my mind, would be to address the Kantian distinction between innate and acquired human rights where the innate right is only one and it is freedom.

Another more pragmatic way to justify balancing of freedom of expression and copyright is to find a common denominator by a closer look at the concepts which are already widely used within and beyond the law. In the digital age, it is becoming increasingly difficult to draw a line between factual information and data, on the one hand, and copyrighted materials, on the other. A major shift occurred when the Internet gradually became a mass consumption technology with billions of users generating and sharing all kind of information. This development was accompanied by a noteworthy conceptual divergence which is still in place. While users and Internet intermediaries operate with the term “content”, applying it equally to published e-books, e-mail messages, as well as to all other information on the Internet, legal professionals continue to employ a strategy of careful delimitation and demarcation of Internet content into segments relevant to a particular branch of law. Perhaps a regular understanding of Internet content as an umbrella term embracing the whole data flow is a revealing one, showing a common sense-bearing nature of everything we are sharing between each other.

Professor Michael Fedotov suggests in his general theory of authorship that subject matters of intellectual property rights should be understood as “immaterial informational entities” [43, p. 52]. Given the informational nature of all that counts as intellectual property he proposes the following definition: “…It is proposed to define the concept of an intellectual property subject matter as an ideal, mental result of the author’s creativity, objectified in a textual, pictorial, sound, audiovisual or other sign that performs the functions of accumulating information or individualizing persons, goods, services, or enterprises. In turn, from this basic definition, it is possible to further build definitions of such derivative concepts as “work”, “invention”, “trademark”, etc.” [43, p. 59].

A fine example to illustrate a negative trend in the legislation development is the Article 17 of the EU Directive on Copyright in the Digital Single Market [44]. The UN Special Rapporteur meant the proposal of that very article when he criticized a preventive upload scanning of music and video [23, para. 32]. The article caused serious human rights concerns by introducing a direct liability of online content sharing service providers for the content uploaded by their users. The risk of direct liability stimulates providers to overblock user generated content thus threatening the users’ right to freedom of expression and information [45, 46].

In a Russian landmark case, which concerned database maker neighboring rights², the plaintiff, social media platform VKontakte, claimed the exclusive rights on the database containing the publicly accessible data like “fist and last name”, “city of birth” and “education” the users of social media upload on their personal pages, and sued a small company DABL for scrapping those data by means of its own independently developed specialized search engine. The Russian Court on Intellectual Rights remanded the case for retrial but confirmed in its ruling that the data of the users from a “database” within the meaning of Article 1334 (1) of the Civil Code of the Russian Federation [48]. The almost five year trial ended in the same court by a settlement agreement and provoked an intense scholarly debate witch helped to deepen the understanding of some difficult questions like the protection of big data mining, the “spin-off theory” and the range of rights that should be conferred to social media users, including the constitutional right to access and disseminate information. Unfortunately, without legislative amendments and pertinent case law these doctrinal disputes have little impact. In a similar case ruled in 2021 [49] the Court of the European Union weighted and balanced the legitimate interest of the maker of database against the interests of users and competitors “in having access to the information contained in those databases and the possibility of creating innovative products based on that information”. While the judgement is progressive and even ground-breaking, opening a new page in the European sui generis database right “saga”, it is too narrow, limited to only one innovative product, namely a specialized meta search engine.

The key determinants of internet content restrictions

There are multiple reasons why countries introduce more and more Internet content restrictions. One of explicit reasons is to stop harmful content and activities such as terrorism, extremism, violence, human trafficking, drug trade and so on. Such blocking no doubt serves both security and the public interests. The problem as usual lies in the details, like an expanding range of content that is blocked and grounds on which it is blocked, vagueness of pertinent legislation and worrisome developments in take-down procedures. The ongoing debate about pros and cons of Internet censorship has already shown that the list of arguments is unlimited. But I would like to address a less researched and debated question about why Internet content regulation is now a global phenomenon and countries with different political regimes, legal systems and cultures enact similar laws and regulations.

The mere fact that something is global does not imply that it is necessarily good and indispensable, or the opposite, that it is bad and destructive. That is why before making any conclusion or looking for a viable solution to content regulation problems, it is useful to look at some other global factors that I think could be decisive for further development of Internet content regulation.

The first factor concerns the way how new technologies are regulated. The essence of this problem is best illustrated by the Collingridge dilemma. When a technology is first developed, its harmful social effects cannot be predicted with sufficient certainty to justify the introduction of control, but “by he time a technology is sufficiently well developed and diffused for its unwanted social consequences to become apparent, it is no longer easily controlled” [50, p. 17-18]. At the heart of the dilemma is the belief that we have a poor understanding of how society and technology interact. At the same time, the states are often proactive in taking control over new technology and draft their laws based on the precautionary principle. The Internet and artificial intelligence are both perfect examples of how it happens.

What Collingridge did not identify and analyzed is the extent to which regulation of technology could impact the behavior of people. Lawrence Lessig in his article of 1997 introduced a distinction between direct and indirect regulation and prophetically suggested a coming shift in a regulatory strategy: “Instead, government will shift to a different regulatory technique. Rather than regulating behavior directly, government will regulate indirectly. Rather than making rules that apply to constrain individuals directly, government will make rules that require a change in code, so that code regulates differently. Code will become the government’s tool. Law will regulate code, so that code constrains as government wants.” [51, p. 184]. Albeit it was said when discussing the United States laws, after the 27 years the warning becomes reality.

The second factor relates to a shift in how people use digital technologies. Thanks to advancements in digital technologies, large amounts of information can now be swiftly copied or generated, processed, and disseminated. This has led to a transformation in communication patterns, as evidenced by the changes in information consumption habits and attitudes towards its content.

An excellent example are drastic changes in the consumption of news. According to the 2024 Digital News Report by the Reuters Institute at Oxford University accounted a “strong shift” towards video-based networks, in the first place to YouTube (31%), WhatsApp (21%) and Tiktok (13%). Another finding is that there is a growing focus on partisan commentators, influencers, and young news creators on TikTok (57%), Instagram (53%) and YouTube (46%). These trends were speeded up by a shift in news policy of traditional social media. Social networks like Facebook have substantially reduced the amount of current and political news due to regulatory concerns about disinformation and changing preferences of their users [52]. There was also the rise in passive news consumption (from 42% in 2018 to 47% in 2023) and a substantial fall in active participation by posting and commenting (from 33 to 22% within the same period) [53]. No less important is the outflows of users from open social platforms to encrypted messengers. As the Economist put it: “Platforms that began as places for friends to interact and share their own content are turning into television-like feeds of entertainment, for passive consumption. At the same time, users are moving their conversations and arguments off the open networks and into closed, private groups on platforms like WhatsApp and Telegram” [54].

When combined these facts give us a picture of the state rapidly losing control over its citizens. In the past governments knew what kind of news and books people read and what TV programs they watched, what they liked or disliked. Now they are much less aware and much more concerned. It suffices to say that about a third of the world’s population uses WhatsApp that offers end-to-end encryption [55]. A vast majority of countries already have some kind of restriction on encryption but only a handful of them, primarily in China, set enough limitations to guarantee in full state access to encrypted data [56]. It is no wonder that the debate over further strengthening encryption regulation [57, 58] or keeping it as is to protect human rights and avoid a new “digital panopticon” (see, for example, [59, 60]) continues.

Finally, the third factor relates to the divergence of values. The latest World Values Survey published in 2023 [61] shows that the initially expected progress towards global values convergence failed to materialize. While in advanced economies values have been changing relatively fast in the direction of individual self-expression and scientific thinking, other countries have shown no value change or taken the opposite path praising more traditional and religious values. There is no flawless methodology to measure human values but, given the ongoing political and armed conflicts, the conclusion looks quite convincing (see, for instance, [62, 63]). It is remarkable that 24 years ago Ronald Inglehart, the founder of the World Values Survey, affirmed that “the trend toward modern values is not irreversible” [64, p. 41] and that traditional value systems “exhibit remarkable durability and resilience” [64, p. 49].

The traditional values are increasingly used in politics and find their place in national and international law. The adoption of UN Resolution “Promoting human rights and fundamental freedoms through a better understanding of traditional values of humankind: best practices” [65] in 2012 shows that at least the first signs of polarization were seen already then. The resolution was promoted by Russia and China³ and adopted by a vote of 25 to 15, with 7 states abstaining. The distribution of voices reflects a split between the West and the Global South but it is not a black and white picture. Among those that opposed resolution were, besides the United States and old European countries, Hungary, Mexico, Poland, Romania, Czech Republic, Botswana, and Costa Rica. The abstained countries included Benin, Chile, Guatemala, Nigeria, Peru, Republic of Moldova, Uruguay. The subsequent Summary of information from States Members and other relevant stakeholder [68] has demonstrated respect and commitment of a large number of contributors to their national traditions but at the same time confirmed the main concerns of the Advisory Committee [69]. As there was no definition of the term ‘traditional values shared by all humanity” the contributions varied substantially in their understanding of a new concept and many of them pointed to particular harmful traditions that should be abolished.

The growing political, ideological, and cultural divide full of misunderstanding, refutation and long forgotten Nietzschean “ressentiment” could but reinforce the global crisis. Given mutual hostility and a shared desire to stop an adversary influence no wonder that different countries are developing and adopting similar laws, including those regarding Internet content. This similarity is so striking that the question suggests itself: who is copying from whom (see, for instance, [70], [71])? In any way that is a grim prospect for everybody if we erect new iron walls to protect the citizens from outside disturbance and build new transparent glass buildings (resembling those described in Yevgeny Zamyatin’s novel “We”⁴) to protect them even better.

¹ Both media were banned in Match 2022. The Prosecutor General’s Office of the Russian Federation sued Meta Platforms for extremist activity and the indictment was confirmed by courts in two instances. See [9, 10].

² The provisions about the maker of a database neighbouring rights, included in part 4 of the Civil Code of the Russian Federation (para.5, chapter 71), were drafted on the model of the European sui generis database right. The decision about the transplantation was made considering Russian Federation commitments under the Agreement on partnership and cooperation establishing a partnership between the European Communities and their Member States, of one part, and the Russian Federation, of the other part (signed at Corfu on 24 June 1994 and entered in force on 1 December 1997). Article 55(1) of the agreement reads as follows: “The Parties recognize that an important condition for strengthening the economic links between Russia and the Community is the approximation of legislation. Russia shall endeavour to ensure that its legislation will be gradually made compatible with that of the Community”. This fact from the history of Russian IP legislation was described by A. L. Makovsky, one of the drafters of part 4 of the Russian Civil Code [47, p. 324].

³ Both countries eventually incorporated traditional values in their legislation, including national constitutions. In the Russian Federation the main regulation on the issue is the Decree of the President of the Russian Federation of November 9, 2022 No. 809 “On approval of the Fundamentals of state policy for the preservation and strengthening of traditional Russian spiritual and moral values” that is based on the Constitution of the Russin Federation substantially amended in 2020. The People’s Republic of China made traditional values a reference point in its laws and regulations since the election of Xi Jinping. Most prominently the turn to traditional values is reflected in the Constitution of the Chinese Communist Party (the 2017 amendments obliged each Party member “to advocate traditional virtues of the Chinese nation”), but it also found its way into the Constitution through the 2018 amendments enshrining some of traditional Confucian values. See [66, p.1177, 1182–1183], [67, p.11-12].

⁴ The novel was written in 1920 and appeared firstly in English translation in 1924. In Russian it was not published until 1988.

About the authors

Elena A. Voinikanis

Author for correspondence.
Email: voinikanis@gmail.com
ORCID iD: 0000-0001-5558-3432

Doctor of Legal Sciences (Higher School of Economics, 2017), Candidate of Philosophic Sciences (Moscow State University, 1996), Professor of the Department of Intellectual Property Law 

References

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