Abstract
Recent court decisions have revealed how the law is frequently under pressure to adjust to novel digital technologies. As legal practice is blind to the factual particularities of the relationship between law and technology, the courts’ efforts to re-stabilize normative expectations of Internet users, in the face of sociotechnical changes caused by computer networks, lack an adequate theoretical classification. Science and technology studies (STS) provide refined knowledge on the interaction between technology and society. Yet, the law and normative structures have remained a stepchild of that branch of interdisciplinary theorizing within the social sciences. Within the legal discipline, media-based theories about the law in the digital environment have conceived computer networks as hybrid sociotechnical constructs. This approach aptly shows how digital media have changed the way individuals experience the world and interact with one another and how the capacity to adjust cognitive behavioral expectations to new developments has become crucial. While the learning of individuals takes center stage, this perspective belittles the relevance of normative expectations and overlooks the law’s learning. How is the law capable of learning under conditions of computer networks and responding to the sociopolitical changes caused by the new technologies? This paper’s aim is to propose a perspective on the law in the digital society that combines STS with legal sociology. An approach based on technical affordances explains how normative behavioral expectations can adjust to changes in the networked environment and how the law learns in the digital society.
Highlights
“Right to be Forgotten,” “Google thumbnails,” “Net neutrality,” and “Facebook Like button” are shorthand formulas associated with spectacular judgments recently passed by major courts in the European Union and the United States
An approach based on technical affordances explains how normative behavioral expectations can adjust to changes in the networked environment and how the law learns in the digital society
Normative behavioral expectations can change and adapt to novel technologies in the digital networked environment, and second, the functional particularities of search engine technology may require copyright law to strike a new balance between the normative expectations of right holders and those of users
Summary
“Right to be Forgotten,” “Google thumbnails,” “Net neutrality,” and “Facebook Like button” are shorthand formulas associated with spectacular judgments recently passed by major courts in the European Union and the United States. The judgments of the Court of Justice of the European Union (CJEU) regarding the “Right to be Forgotten”[4] and the “Facebook Like button,”[5] and the decision of the Court of Appeals for the District of Columbia Circuit on “Net neutrality”[6] are further examples where the judiciary was forced to re-stabilize normative expectations under conditions of digital networks What is it about such novel phenomena of techno-social normativity?. The paper will question their understanding of the computer network as a sociotechnical hybrid as well as the primacy of cognitive mechanisms of adaption compared with normative patterns of orientation Departing from these theories, the paper will propose an alternative perspective on normative expectations and the law in the digital society that combines STS with legal sociology. An affordance-based approach to law and society shows how normative behavioral expectations can adjust to changes in the networked environment and how the law learns in the digital society
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