Law of the land or law of the platform? Beware of the privatisation of regulation and police

Abstract

This chapter argues that digital platforms are increasingly undertaking regulatory and police functions, which are traditionally considered a matter of public law. The authors emphasise that such functions have been growingly delegated to platforms by public authorities, while at the same time platforms are self attributing such functions to avoid liability, de facto becoming private cyber-regulators and cyber-police. After highlighting the tendency towards delegation of public functions to private platforms, we provide concrete examples of such phenomenon. For example, the chapter illustrates three types of delegations of public power: the imposition of openended injunctions against innocent intermediaries, typically for content removal or website blocking; the implementation of the right to content delisting against search engines, also known as the “right to be forgotten”; and the enlisting of numerous IT companies into a voluntary scheme to counter “illegal hate speech”. We show in all these cases that the amount of discretion conferred on platforms is problematic from the standpoint of the protection of individual rights. Furthermore, the paper scrutinises the case of the parallel copyright regime developed by YouTube, to emphasise another collateral effect of the privatisation of regulation and police functions: the extraterritorial application of a national legislation – US copyright, in this case – which de facto turns the platform into a private proxy for global application of national regulation. We conclude highlighting some of the challenges and viable solutions for the protection of individual rights in an era of increasing privatisation of regulation and police.