Redeeming democracy in a post-liberal technology driven world
Professor, PhD Ineta Ziemele
President of the Constitutional Court of the Republic of Latvia
Riga 14 June 2019
Ladies and gentlemen!
The XXI century has arrived together with the realization that technology, especially digital technology, not only opens up new possibilities for individuals and societies but it also allegedly blurs the borders of, and even challenges, the behaviour and concepts that we have developed as democratic societies in the XX century.
Liberalism that had consolidated as one of the leading ideologies during the XX century is being contested. The new technologies, especially the Internet has facilitated, if not triggered, these changes. If, on the one hand, the Internet was hoped to be the new public place where all opinions could meet, today, on the other hand, the algorithm driven social networks among others are putting us into bubbles ultimately preventing a transparent and all-inclusive discussion.
At the same time, history shows that there is no such thing as a right to eternal comfortableness for the Democracy. It seems challenged de nuovo from within and from the out. This reminds of the question put forward by Habermas: how to reconciliate the self-destructive modernity ?
Therefore, I will be exploring in what ways the Internet is shaping the core concepts of the liberal democracy consolidated in the XX century. I propose in an exclusively summary fashion to take a look at the key notions such as rule of law, human rights and democracy, which are at the centre of the liberal worldview and European public law, taking into account the manner in which digital technologies have changed human behaviour.
I Critiques against the democracy:
I would like to highlight that democracy unlike tyranny is widely open for internal and external critique for a very simple reason, i.e., it strives on plurality of views and open debate. Moreover, one can say that unlike tyranny the democracy may not become more “democratic’’, it chooses between different directions possible inside this regime (direct or representative, liberal or majoritarian, conservative or progressive, amongst others) and consolidates the choice or abandons it and tries to make another choice. But the three fundamental values – human rights, rule of law and plurality of views – remain the basis if we are to consider the political regime democratic.
Some claim that democracy by giving an ever larger preference to individual rights has weakened the democratic societies as a whole. The increase in individual liberties has allegedly meant the decrease of liberties exercised collectively and moreover of the sense of duties towards each other and the society as such. At the same time, there are strong views in favour of individual rights and liberties that argue that it’s democracy that loses in the end, if we had to see the democracy as a transformation of the individual freedoms into a collective freedom or self-government.
Some others wish less representation and more direct participation. Few consider the democracy useless or a nuisance altogether. The common thing between them? Apart from the fact that democracy has always had to deal with these differences in opinion today they all – all these views and critiques – are present on the Internet and more specifically on the social media. Argument can be made to the point that Internet facilitated access to information assists in melting the historical ideological divisions within the general democracy theme. Such argument is made based on what could be called the angelic vision of the Internet. But is such a vision true?
II Internet as the new Pnyx – the angelic vision of the early days
If the founding ideals of democracy are the possibility of public assembly and transparency, the Internet should allow the formation of an infinite number of new and enlightened ideas. Accordingly, the citizens would make better choices in the elections. The consequence would also be an informed and aware civil society.. According to this vision the technology would finally restore that all is for the best in the best of all possible worlds .
The Internet has become a participatory place (the marketplace of ideas) where the ordinary creativity of any user gives rise to unexpected forms of social, technical, economic and cultural innovation. It has allowed the rebirth of industrial societies also in terms of political debate.
The internet is the place where the citizen can debate, observe and evaluate the actions of its representants. The individual mass media is a low-cost way how to distribute the ideas and information, and to obtain the political mobilisation. Many forms of cooperation, volunteering and free participation have come to existence online.
In view of these changes and new possibilities, it is not surprising that the idea of access to Internet as a new human right was one of the first intellectual options to verbalize all the mentioned processes and to offer them a legal form. UN Special Rapporteur on Freedom of Expression powerfully argued in favour of the inclusion of such a right in the catalogue of rights. The Special Rapporteur in one of its recent reports to the UN General Assembly underscored the unique and transformative nature of the Internet not only to enable individuals to exercise their right to freedom of opinion and expression, but also a range of other human rights, and to promote the progress of society as a whole. What remained unclear was what obligations that would entail for the governments.
The importance of the Internet has helped to create a sort of ‘right’ to access the Internet. For example, the French Conseil constitutionnel has not yet recognized such a right but has declared, in the negative, that only a court is competent to decide on interruption of Internet access following the usual proportionality test from the field of fundamental rights.
Given that access to basic commodities such as electricity remains difficult in many developing States, the Special Rapporteur has conceded that universal access to the Internet for all individuals worldwide cannot be achieved instantly. However, the Special Rapporteur reminds all States of their positive obligation to promote or to facilitate the enjoyment of the right to freedom of expression and the means necessary to exercise this right, including the Internet. Hence, States should adopt effective and concrete policies and strategies – developed in consultation with individuals from all segments of society, including the private sector as well as relevant Government ministries – to make the Internet widely available, accessible and affordable to all.
III Liberal values in post-liberal world
The emphasis of the UN Special Rapporteur is evidently on the nature of the Internet which enables everyone to access information and to express the views freely that otherwise would not be possible due to the oppressive nature of the government. In a democratic setting the emphasis would be different. For example, on training the seniors in computer literacy. In other words, on that aspect of the Internet which assists in strengthening the inclusive society.
Although the Internet remains history’s greatest tool for global access to information, online evangelism is not a rule. The public sees hate, abuse and disinformation that the content users generate. Governments see terrorist recruitment or discomforting dissent and opposition. Civil society organizations see the outsourcing of public functions, like protection of freedom of expression, to unaccountable private actors. Internet has also hightened the focus on the question of responsibility towards the other person and the society as such. In a post-liberal world that is a most difficult task because, as just mentioned, liberalism did indeed emphasise individual rights and liberties while the Internet unavoidable makes us ask the question of what kind a society we want to be.
In the case Delfi v Estonia decided by the European Court of Human Rights all these various dimensions were engaged and the judicial deliberation was very complicated. On the one hand, there were judges which clearly took a liberal position and regarded the freedom of the Internet close to being absolute where if restrictions were permitted they should be kept to a minimum. The majority however took another route.
At the outset the Strasbourg Court pointed out that two conflicting realities lie at the heart of this case (para 110). On one hand, the Internet provides an unprecedented platform for the exercise of freedom of expression. On the other hand, alongside these benefits, certain dangers may also arise. Defamatory and other types of clearly unlawful speech, including hate speech and speech inciting violence, can be disseminated like never before.
The case concerned the “duties and responsibilities” of Internet news portals, under Article 10 § 2 of the European Convention on Human Rights, when they provide for economic purposes a platform for user-generated comments. The Internet portal in this case – Delfi – was imposed a fine for publishing comments consisting of expressions of hatred and blatant threats to the physical integrity against the owner of a ferry company linking the mainland Estonia to its Islands.
The article in issue attracted 185 comments, well above average. Generally, Delfi actively called for comments on the news items appearing on the portal. The number of visits to the portal depended on the number of comments; the revenue earned from advertisements published on the portal, in turn, depended on the number of visits. Thus, the company had an economic interest in the posting of comments.
Although there was a mechanism to remove illegal comments (automatic filter for certain words, and removal after notification), in the Court’s opinion it was impossible for a victim of hate speech to bring a claim effectively against the authors of the comments. Therefore, the case, according to the Court, could by no means be equated to “private censorship”. While acknowledging the “important role” played by the Internet “in enhancing the public’s access to news and facilitating the dissemination of information in general” the Court reiterated that it is also mindful of the risk of harm posed by content and communications on the Internet.
Therefore, when a company exercises a substantial degree of control over the comments published on its portal, the imposition of an obligation to remove from its website, without delay after publication, comments that amounted to hate speech and incitements to violence, does not amount, in principle, to a disproportionate interference with its freedom of expression.
Finally, the ECHR took the opportunity to stress that there should be an effective accountability on the Internet regarding the potential victims of the hate speech. Indeed, in cases of hate speech the ability of a potential victim of hate speech to continuously monitor the Internet is more limited than the ability of a large commercial Internet news portal to prevent or rapidly remove such comments.
Although the UN Special Rapporteur also acknowledged that the Internet hosts the kind of speech that ought not to be protected in a democratic society, the Rapporteur is ambivalent about the outsourcing of the responsibility to ensure the public order to private actors which the ECHR in Delfi not only accepted but even insisted on. The UN Special Rapporteur emphasizes that censorship measures should never be delegated to private entities, and that intermediaries should not be held liable for refusing to take action that infringes individuals’ human rights. In other words, the Internet makes us answer the questions characterizing post-liberal world, first, with regards to not only individual rights and liberties but also duties and, second, the challenges to omnipresence and omnicompetence of a modern State since the XIX century which is no longer possible.
IV Algorithms and democracy – enclosing the users into bubbles
From a passive status, since early 2000s the Internet users have become active by uploading and exchanging contents so-called User Generated Content.
This is how the expression “Web 2.0” denotes the new stage of the innovative participation and formation of creative communities. Each user is given the opportunity to be both a reader and a contributor.
For democracy it meant, on the one hand, the spontaneity and freedom of a network leading to the loss of control over the debate for a political candidate and, on the other hand, the need to master the particular codes of communication. It has gradually become an entire know-how without which no political process, no election is possible.
Although citizens can now express themselves and make their opinion known through these new forms of communication, the election remain the key form of political expression in the dominant model of representative democracy.
The social media however, change the landscape in which democracy evolves. In some societies this has led to revalorize the direct democracy, since it is perceived as a response to disenchantment with representative and political institutions and mistrust against the political class. In other words, the citizens are claiming back the delegated powers. The Internet clearly keeps the democratically elected on their toes and there are plenty of examples in Europe.
The official standpoint of social media has always been that “Giving everyone a voice has historically been a very positive force for public discourse because it increases the diversity of ideas shared”.
On the other hand, it still holds true what Madison said: “If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.” Would it be too much to acknowledge that the view on positive empowerment enabled by the Internet, especially social media, simply misrepresents human nature, which is at odds with the conception of liberal Democracy?
In reality the newly acquired digital space and communication tends to result in self-segregation. It seems that these developments rather encourages the creation of closed groups, where often dominates outrage and shutting down the ideological opponents. Users embrace the information that confirms their worldview even if that information is false. It doesn’t even matter anymore whether the information is true or false (the birth of the notion alternative facts).
The reality where the social media are mainly interested with the quantity of social connection, rather than democratic self-government, empowers actors who are interested in dismantling democracy. The example of profiling of voters using social media data as an effort to “whisper into the ear of each and every voter” and a way of coaxing voters through “informational dominance” have shaken Western liberal democracy.
At this stage, it is important to come back to the very idea of human rights and liberties whether in the American or French Declarations or in the Universal Declaration of Human Rights. In the center of modern human rights is human dignity. We have spent centuries in discovering human dignity. Plato’s Republic was first to voice the human desire for recognition of dignity. It took however a long time until Kant conceived of the concept of universal dignity instead of dignity of a few. It was Rousseau who fully articulated human dignity which is inherent in every human being and which refers to his/her natural need to fulfilment. As a result, “a liberal society increasingly came to be understood not just as a political order that protected certain minimal individual rights, but rather as one that actively encouraged the full actualization of inner self”. Human dignity can be fully enjoyed by a free person. Therefore there are theories, philosophies, studies, attempting to explain and develop ideas for promoting human self-esteem based on the argument that “most people fail to realize the greater part of their potential;” self-esteem being critical to self-actualization.
In other words, the main idea behind human rights is to empower the individual with a view that each person whose dignity and freedom is respected and protected would develop and exemplify the better inner self. Nevertheless, not every person is necessarily law abiding and creative or for that matter free and independent of undue influence. Why? How does the idea of human dignity and self-esteem explain that?
It is here that human rights link into democracy and rule of law since the latter two ideas are about governance. Democracy and rule of law is the basis for such a governance that can enable better recognition of everyone’s rights and dignity. Fukuyama writes that “Liberal democracies are premised on the equal recognition of the dignity of each of their citizens as individuals. Over time, the sphere of equal recognition has expanded both quantitatively, in the numbers of people accepted as rights-bearing citizens, and qualitatively, in an evolving understanding of recognition not just as formal rights but as substantive self-esteem. Dignity was being democratized”. The Internet certainly democratizes it further.
Fukuyama continues: “But identity politics in liberal democracies began to reconverge with the collective and illiberal forms of identity such as nation and religion, since individuals frequently wanted not recognition of their individuality, but recognition of their sameness to other people”. The Internet enables that same process whereby individuals in need of recognition but with insufficient self-esteem converge into closed internet groups. It is not that the history of liberal democracy would not be familiar with such phenomena. What has changed is the speed and the reach of these processes. The real risk is in the fact that yet again in the human history there is a potential for a disbalance between the individual and the collective identities where collective identities are among others also shaped by the Internet. In other words, the Internet clearly affects the way individuals behave and has probably affected us as societies by now. It has a potential to bring up the downsides of human nature and to the contrary enable the solutions long sought by the individuals.
V Concluding remarks
I will not suggest that the Internet caused current post-liberal world. The Internet has a potential to zoom in those social processes that are on-going and have not been solved by our modern democracies. In other words, all the up and downsides of individual rights and liberties in a participatory democracy are more on display which may not be such a bad thing. My conclusion is that a goal of inclusive democratic society based on respect for individual rights and common interests of the society is as valid as ever and the legal methods in reaching it remain the same.
The UN Special Rapporteur recalled that: As with offline content, when a restriction is imposed as an exceptional measure on online content, it must pass a three-part, cumulative test: (1) it must be provided by law, which is clear and accessible to everyone (principles of predictability and transparency); (2) it must pursue one of the purposes set out in article 19, paragraph 3, of the International Covenant on Civil and Political Rights , namely: (i) to protect the rights or reputations of others; (ii) to protect national security or public order, or public health or morals (principle of legitimacy); and (3) it must be proven as necessary and the least restrictive means required to achieve the purported aim (principles of necessity and proportionality). In addition, any legislation restricting the right to freedom of expression must be applied by a body which is independent of any political, commercial, or other unwarranted influences in a manner that is neither arbitrary nor discriminatory. There should also be adequate safeguards against abuse, including the possibility of challenge and remedy against its abusive application. In other words, in terms of interpretation, application and protection of human rights we maintain the same methodology. In terms of the expansion of the catalogue of rights, different constitutional traditions are developing with their own speed as far as the recognition of internet dependent rights are concerned.
However, the Internet has brought to the forefront the existence of plurality of actors in modern societies and the fact that the State is no longer the most influential among these actors. This means that for as long as we consider the State as the most appropriate form of organization of human societies it has to adjust to the new tools of communication for the purposes of enabling each individual to realize his better inner self. The State has to keep explaining its own importance and the importance of participatory democracy and the continuous importance of separation of powers for a better self-realization of each individual.
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 The Pnyx (Πνύξ) is a hill in central Athens where the Athenians gathered on to host their popular assemblies.
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 Alternative facts was a phrase used by U.S. Counselor to the President Kellyanne Conway during a Meet the Press interview on January 22, 2017, in which she defended White House Press Secretary Sean Spicer’s false statement about the attendance numbers of Donald Trump’s inauguration as President of the United States.
 C. Timberg, K. Adam, «How Cambridge Analytica’s whistle-blower became Facebook’s unlikely foe», Washington Post, 21 mars 2018.
 Francis Fukuyama, Identity. Contemporary Identity Politics and the Struggle for Recognition, 2018, p. 92.
 Ibid., p. 93.
 Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, UN Doc. A/HRC/38/35.