See J. Schultz, Twitter Puts an End to Trump’s Rhetorical Presidency, 2021, available at https://www.lawfareblog.com/twitter-puts-end-trumps-rhetorical-presidency.

United States District Court Memorandum and Order, Knight First Amendment Institute v. Trump, 2017. No. 1:17-cv-05205 (S.D.N.Y.)

Ibidem.

Generally, see Y. Gorodnichenko, T. Pham and O. Talavera, Social Media, Sentiment and Public Opinions: Evidence from #Brexit and #US Election, in National Bureau of Economic Research, No. w24631, 2018 (explaining the effects that the social media platforms had in shaping the public opinion).

K. Klonick, The New Governors: The People, Rules, and Processes Governing Online Speech, in «Harvard Law Review», 131, 2017, pp. 1599 ff., 1603 (arguing that these platforms operating as the new governors of online speech, and are part of a new triadic model of speech that is between the State and speakers and publishers).

In this sense following S. Taekema, Between and Beyond Legal Orders Questioning the Concept of Legal Orders, in J. Klabbers and G. Palombella (eds.), The Challenge of Inter-legality, Cambridge, Cambridge University Press, 2019, pp. 69 ff., 74.

See the chapter Interlegality e tecnologie per la sorveglianza by Sümeyye Elif Biber in this volume.

J. Klabbers and G. Palombella, Introduction, in Iid. (eds.), The Challenge of Inter-legality, cit., pp. 1 ff.

Ibidem.

See O. Pollicino, Judicial Protection of Fundamental Rights in the Transition from the World of Atoms to the Word of Bits: The Case of Freedom of Speech, in «European Law Journal», 25(2), 2019, pp. 155 ff.

See ibidem.

See Y. Benkler, The Wealth of Networks,Yale,Yale University Press, 2006.

According to European documents on online platforms, social networks provide a “hosting service” meaning that “an information society service consisting of the storage of information provided by a recipient of the service.” Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’).

J.G. Palfrey, Four Phases of Internet Regulation. Social Research, in Berkman Center Research Publication No. 2010-9, Harvard Public Law Working Paper No. 10-42, Vol. 77, 3, 2010. Available at SSRN: https://ssrn.com/abstract=1658191 (referring to this era as an era of the “open internet”).

See G.D. Gregorio, From Constitutional Freedoms to Power of the Platforms: Protecting Fundamental Rights Online in the Algorithmic Society, in «European Journal of Legal Studies», 11(2), 2019, pp. 65 ff.

According to the Council of Europe, the term Internet intermediaries “commonly refers to a wide, diverse and rapidly evolving range of service providers that facilitate interactions on the Internet between natural and legal persons. Some connect users to the Internet, enable processing of data and host web-based services, including for user-generated comments. Others gather information, assist searches, facilitate the sale of goods and services, or enable other commercial transactions. Internet intermediaries also moderate and rank content, mainly through algorithmic processing, and they may perform other functions that resemble those of publishers”. See Council of Europe, Internet Intermediaries at https://www.coe.int/en/web/freedom-expression/internet-intermediaries.

See Klonick, The New Governors: The People, Rules, and Processes Governing Online Speech, cit., p. 1598.

Communication Decency Act (1996) 47 USC § 230 (c) (1) states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”.

E. Goldman and J. Kosseff, Commemorating the 20th Anniversary of Internet Law’s Most Important Judicial Decision, in E. Goldman and J. Kosseff (eds.), Zeran v. America Online E-book at https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=3286&context=historical, 2020, p. 6.

United States Court of Appeals, Fourth Circuit, Zeran v. America Online Inc. 129 F.3d 327, 1997.

Ibidem.

Ibidem.

Ibidem.

Ibidem. The judgment also held that Internet service providers were not liable even when receiving notice of potential defamatory post.

Ibidem. The conceptualization of online platforms within the First Amendment was another critical issue for the courts in the US. The reasonings analyzed analogies to State, company towns, broadcasters and editors. See this debate in Klonick, The New Governors: The People, Rules, and Processes Governing Online Speech, cit.

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce), OJL 178/1 of 17.7.2000.

See the debate in Gregorio, From Constitutional Freedoms to Power of the Platforms: Protecting Fundamental Rights Online in the Algorithmic Society, cit.

There are at least four leading documents to see the approach of the EU to online platforms: European Commission, COM (2016) 288 final, Online Platforms and the Digital Single Market Opportunities and Challenges for Europe; European Commission, COM (2017) 555 final, Tackling Illegal Content Online Towards an Enhanced Responsibility of Online Platforms; European Commission, C(2018) 1177 final, On Measures to Effectively Tackle Illegal Content Online; Council of the European Union, 2019, 12522/19, Progress on Combatting Hate Speech Online through the EU Code of Conduct 2016-2019 (all these documents have encouraged online platforms to take self-regulatory measures, and supported the special liability regime provided by the E-Commerce Directive).

TGI Paris (22 May 2000) Licra et UEJF v. Yahoo! Inc. and Yahoo! France; US District Court for the Northern District of California (2001) Yahoo! Inc. v. La Ligue Contre Le Racisme, 169 F. Supp. 2d 1181 (ND Cal. 2001).

See R.J. Reidenberg, States and Internet Enforcement, in «University of Ottawa Law & Technology Journal», 2004, pp. 215 ff.

See M. Bassini, Fundamental Rights and Private Enforcement in the Digital Age, in «European Law Journal», 25, 2019, n. 2, pp. 188 ff.

Ibidem (discussing the enforcement of the right to be forgotten recognized by the CJEU in the Case 131/12 Google Spain v. AEPD EU:C:2014:317, in the context of “privatization”).

See M. Birnhack e N. Elkin-Koren, The Invisible Handshake: The Reemergence of the State in the Digital Environment, 2003, available at https://ssrn.com/abstract=381020.

See K.S. Rahman, Democracy Against Domination, Oxford, Oxford University Press, 2016.

See the Facebook Community Standards at https://www.facebook.com/communitystandards/

Article 19, Facebook Community Standards Legal Analysis, June 2018, pp. 2-26. See the report on https://www.article19.org/wp-content/uploads/2018/07/Facebook-Community-Standards-August-2018-1-1.pdf.

See J.M. Balkin, Free Speech is a Triangle, in «Columbia Law Review», 118(7), 2018, pp. 2011 ff.

137 S. Ct. 1730, 1735 (2017).

K. Klonick and T. Kadri, How to Make Facebook’s “Supreme Court” Work, in «The New York Times», 17 November 2018, available at https://www.nytimes.com/2018/11/17/opinion/facebook-supreme-court-speech.html

Facebook Oversight Board Bylaws, January 2020, available at https://about.fb.com/news/2020/05/welcoming-the-oversight-board/.

H. Brent, Oversight Board to Start Hearing Cases, 22 October 2020, available at https://about.fb.com/news/2020/10/oversight-board-to-start-hearing-cases/.

See L. Belli e J. Venturini, Private ordering and the rise of terms of service as cyber-regulation, in «Internet Policy Review», 5, 2016, n. 4.

See ibidem.

B. Schneier, Power in the Age of the Feudal Internet, in MIND, Collaboratory discussion paper #6 Internet & Security, 2013; L. Belli, Collaborative Policymaking: from Technical to Legal Interoperability. Presented at the XIX International Congress of Constitutional Law, Brasilia, Panel 7, 2016. Available at https://www.youtube.com/watch?v=KyQ5f--Yw44&t=236s.

Packingham v. North Carolina (2017), 137 S. Ct. 1730.

Klabbers and Palombella, Introduction, cit., p. 10.

Gesetz zur Verbesserung der Rechtsdurchsetzung in sozialen Netzwerken (Netzwerkdurchsetzungsgesetz - NetzDG) (2017). Available at https://www.gesetze-im-internet.de/netzdg/BJNR335210017.html. For the platforms, it establishes the obligation to remove content that features use of symbols of unconstitutional organizations, forming terrorist organizations, incitement of masses, including denial of the Holocaust, child pornography, insult, malicious gossip, defamation, violation of intimate privacy by taking photographs or other images, and threatening commission of serious criminal offence. See P. Zurth, The German NetzDG as Role Model Or Cautionary Tale? – Implications for the Debate on Social Media Liability, Fordham Intellectual Property, in «Media and Entertainment Law Journal», 2021, pp. 1084 ff.

E. Douek, The Rise of Content Cartels,Knight First Amendment Institute at Columbia, 2020.

Trump’s social media bans are raising new questions on tech regulation CNBC Jan 11, 2021 (https://www.cnbc.com/2021/01/11/facebook-twitter-trump-ban-raises-questions-in-uk-and-europe.html)

I. Brown, Interoperability as a tool for competition regulation. Open Forum Academy, 2020 (explaining the different regulatory approaches that could limit the power of the platforms).

J. Thai, Facebook’s Speech Code and Policies: How They Suppress Speech and Distort Democratic Deliberation, in «American University Law Review», 69, 2020, pp. 1641 ff.

The first few decisions of the Facebook Oversight Board issued in January 2021 with their invocation of the Article 19 and 20 of the ICCPR as well as the United Nations’ Human Rights Committee are instructive in this sense. See Case Decision 2020-003-FB-UA at https://oversightboard.com/decision/FB-QBJDASCV/.

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression No. A/HRC/38/35 (Jun.2018)

See S. Benesch, But Facebook’s Not a Country: How to Interpret Human Rights Law for Social Media Companies, in «Yale Journal on Regulation», 2020, pp. 86 ff.

For example, the Turkish legislator has considered such a solution. See a recent discussion in Turkish law tightening rules on social media comes into effect, 1.10.2020, available at https://www.euronews.com/2020/10/01/turkish-law-tightening-rules-on-social-media-comes-into-effect.

See Zurth, The German NetzDG, cit., 257.

Glawischnig-Piesczek v. Facebook Ireland (C-18/18).

See excellent discussion in J. Thai, The Right to Receive Foreign Speech, in «Oklahoma Law Review», 71, 2018, p. 269.

See T. Sardá, S. Natale, N. Sotirakopoulos and M. Monaghan, Understanding Online Anonymity, in«Media, Culture & Society», 41, 2019, n. 4, pp. 559 ff.

See G. David, Anarchy State and the Internet, in «Journal of Online Law», 1995, article 3, available at SSRN: https://ssrn.com/abstract=943456.

See Douek, The Rise of Content Cartels,cit., p. 52.

See the chapter by Gabriel Encinas in this volume.

See Klabbers and Palombella, Introduction, cit., pp. 1-16.

Ibidem, p. 2.

Ibidem, p. 1.

See ibidem, p. 366.

Ibidem, p. 3.

See ibidem, p. 383.

The five decisions are currently available only online at https://oversightboard.com/?page=decision.

See P. Mozur, A Genocide Incited on Facebook, With Posts From Myanmar’s Military, in «New York Times», October 15, 2018 at https://www.nytimes.com/2018/10/15/technology/myanmar-facebook-genocide.html.

We cannot be sure that Facebook is not dealing with the requests stemming from national legislation. Indeed, the decisions publicly made available are presented with a caveat that they “provide an overview of the case and do not have precedential value”.

See case decision 2020-004-IG-UA, para 8.3. at https://oversightboard.com/decision/IG-7THR3SI1/.

See Balkin, Free Speech is a Triangle, cit., p. 39.

See D. Brownsword, E. Scotford and K. Yeung, Law, Regulation and Technology: The Field, Frame and Focal Questions, in Iid. (eds.) The Oxford Handbook of Law, Regulation and Technology, Oxford, Oxford University Press,2017.