Local rules of Internet communities in context of protection of the freedom of expression online

1. Local rules of Internet communities in context of protection of the freedom of expression online Andrey A. Shcherbovich National Research University – Higher School of Economics (Moscow, Russia)

2. The most popular websites at present 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.

3. Novation in the scientific legal research 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.

4. Definitions 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

5. Legal properties of the User Agreements 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.

6. Weak points of civil law approach 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.

7. Prerequisites of the public-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

8. Inequality of users 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”

9. Mismatch of jurisdiction 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.

10. General weakness of the user agreements Registration required Possibilities for pre- and post-moderation of the user-generated content Incaseofcreation, deploymentanduseofuser-generatedcontentsiteusersareprohibitedtomakecertainacts Liabilitymayrangefromdenyingaccesstothesite (temporaryorpermanent), tomoreseriousmeasures, likecivilandcriminalliability Unclearwordinganddefinitionscreatetheillusionofinformalityandabsenceofthemandatoryforceoftherules, whichcanbeeasilycircumvented.

11. Wikipedia as example of the best practice in the web self-governance Wikipedia, whichhas 30 millionactiveusers, hasuniqueintheRussiansegmentofInternetcommunityofactiveusers. Thiscommunitysettheirownprinciplesofconductwith a lowdegreeofformalization, proclaimingonly “fivepillars” ofWikipedia, governingrelationshipbetweenitsparticipants Therulesarenotrigidanddesignedbytheusercommunity. Evenuserswhohavenotparticipatedinthecreationofrules, couldmonitortheircompliance. Accesstothelogs (historyofchanges) ofeachWikipediaarticleisavailabletoallusers – sothatallusersmaykeeptrackofeachother'sworkonupdatingarticles.

12. RAEC Code of corporate standards The CodeofProfessionalactivitiesintheInternetdevelopedbytheRussianAssociationforElectronicCommunications (hereinafter – RAEC). According to the Code, owners of the recourses obliged to: ensurethatthegeneraltermsandconditionsofserviceavailabletoallusers (bothactualandpotential) oftheirservices. ensurethattheprovisionofthirdpartyaccesstopersonaldataiscarriedoutincompliancewiththerulessetbyusersprovidedthecontent (needforauthorization, tosetting a password, payment, etc.), andagreements (contracts) withtheseusers. arenotresponsibleforuser-generatedcontentandisnotobligedtocarryoutmoderationandpre-moderationofcontent, ifonlyitisnotthepurposeofthisresource. whenreceivedcomplaintforwrongfulorunlawfuluser-generatedcontentthatcontainsthenecessaryinformationfortheformalverificationandreferencetotheexactaddressofthelocationofsuchcontentontheInternet, makeeffortsforblockingpublicaccesstothiscontent.

13. Delineation of responsibilities From a legalpointofviewofrelationshipsontheInternetisrelationshipbetweentheuser (physicaloflegalentity) andprovider, legalentityprovidingaccesstoInternetorweb resources. ContentprovidershouldbedistinguishedfromtheproviderofInternetaccessas a serviceconnection. The EuropeanDirectiveonelectroniccommerceprovidesthattheadministrationof websitesshould: Promptlyremoveinfringingcontent; Tobepassive, thatisnotdirectlyparticipateintheactivitiesoftheuser; Doesnotcontroluser; Tendtoreceiveremunerationforservicesrendered.

14. Responsibilities of provider in Russian law 1st approach: telecomoperatorisresponsibleforallactionsofusers 2nd approach: freesoperatorfromliabilityforusers' actionsinthatcase, ifhefulfillscertainconditionsrelatedtothenatureofserviceandinteractionwithotherinterestedstakeholders, especiallypersonswhoserightsareviolatedbytheactionsofusers. 3rd approach: telecomoperatorisnotresponsibleforanyactionsofusers.

15. Conclusions 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.

16. Thank you! For all inquiries: dvbirve@yandex.ru