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Sanctions on digital platforms: Balancing proportionality in a modern public square

Marique, Enguerrand and Marique, Yseult (2020) 'Sanctions on digital platforms: Balancing proportionality in a modern public square.' Computer Law and Security Review, 36. p. 105372. ISSN 0267-3649

2019.08.31 - Marique and Marique - Sanctions on digital platforms - balancing proportionality in a modern public square.pdf - Accepted Version
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This paper asks which legal tools digital operators could use to manage colliding rights on their platforms in a digitalised and transnational space such as the Internet. This space can be understood as a “modern public square”, bringing together actions in the digitalised world and their interactions with actual events in the physical world. It is then useful to provide this space with a discursive framework allowing for discussing and contesting actions happening on it. In particular, this paper suggests that two well-known legal concepts, proportionality and sanctions, can be helpfully articulated within that discursive framework. In a first step, proportionality, a justificatory tool, is often used to suggest a way for managing colliding rights. This paper argues that for proportionality to be useful in managing colliding rights on digital platforms, its role, scope and limits need to be better framed and supplemented by an overall digital environment which can feed into the proportionality test in an appropriate way. This can be provided, thanks to a second step, namely labelling in law the actions digital operators take as sanctions. Sanctions are the reactions organised by digital operators to bring back social order on the platforms. The labelling of these reactions under the legal category of “sanctions” offers a meaningful tool for thinking about what digital operators do when they manage colliding rights by blocking or withdrawing contents and/or accounts. As different types of sanctions can be distinguished, differentiated legal consequences, especially in relation to managing colliding rights, can be identified. Here the role played by the proportionality test can be distinguished depending on the type of sanctions. In any case, for sanctions and proportionality to help address colliding rights on the modern public square, a discursive framework needs to be developed, which depends on the existence of relevant meaningful communities engaging in reflecting on the use of sanctions and proportionality.

Item Type: Article
Additional Information: Source info: Computer Law and Security Review (issue Nov. 2019 - Forthcoming)
Uncontrolled Keywords: Digital platforms, transnational normativity, pluralism, regulation, sanctions, proportionality, subsidiarity; Digital platforms; Transnational normativity; Pluralism; Regulation; Sanctions; Proportionality; Subsidiarity
Divisions: Faculty of Humanities
Faculty of Humanities > Law, School of
SWORD Depositor: Elements
Depositing User: Elements
Date Deposited: 02 Oct 2019 15:30
Last Modified: 06 Jan 2022 14:05

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