On the Compatibility of the Democratic Rule of Law and the Self-Regulation of Meta: The Oversight Board as a Guardian of Freedom of Expression

Abstract

The article examines the role of Meta in relation to the principles of the democratic Rechtsstaat. The perspective focuses on the importance of the human right to freedom of expression in a global network society, where Internet intermediaries, through their self-regulation and content moderation, have a crucial impact on the realisation of freedom of expression and, by extension, on democratic processes. Because of their influence, their self-regulatory systems can be seen as independent systems of norms, governed by fundamentally different principles from those of European nation-states committed to democracy, human rights and the rule of law – especially in the context of the European Union. This is of particular importance for public debate and the free expression of opinions, which are fundamental values in democratic societies. Social media both enables and, in some cases, limits the exercise of fundamental and human rights. They also share, or to some extent have even taken over, the institutional role of traditional media in society. The article takes a legal-theoretical approach to the subject matter, as it addresses the role of public debate in the digital environment as part of the legitimacy of the legal order itself. In this respect, the article analyses the relationship between Facebook and the public sphere, which is essential for democracy, and the role of the state in promoting freedom of expression in the online environment. The theoretical framework is based on Kaarlo Tuori's theory of the levels of law and the concept of democratic Rechtsstaat. Against this framework, Facebook/Meta is examined in a European context, which includes both the European Union and Council of Europe law. Most focus is put on the case law of the European Court of Human Rights. Through this framework, the role and position of the Oversight Board at the interface of human rights implementation and Meta's self-regulation will also be examined. Given the emphasis in the ECtHR's jurisprudence on the positive obligations imposed on the state, the article concludes that a more effective horizontal impact of fundamental and human rights is needed. This is supported by the conclusion that Facebook may not be considered as a well-suited public sphere for democracy.