TILT seminar: Berdien van der Donk
You shall not pass (the user terms): A comparative study of online access rights in the European Union.
Time: 14.30 – 16.00 CET
What happens if a large-scale social media platform (SMP) decides to block access to content in a way that goes beyond what is prescribed by law? Can a platform with more than three billion users decide that euthanasia equals suicide, and thus limit its dissemination? Would it matter if the content is blocked in a country where euthanasia is legal, such as Colombia, the Netherlands, or New Zealand? Well, in principle, the freedom to conduct a business in article 16 of the Charter, and the freedom of contract that is enclosed in the article’s scope, allows SMPs to freely draft their terms of service and to exclude whichever content they want. However, following an analysis of the CJEU’s case-law of the last 50 years, SMPs can only successfully invoke this freedom if a restriction to its user terms would mean the absolute end of the platform. That seems unlikely to be the case.
Since SMPs seemingly cannot invoke protection against restrictions on their freedom of contract, could the platforms’ users then, contrarily, claim the invalidity of user terms that restrict the access to legal content? SMPs must comply with the Unfair Contract Terms Directive (UCPD), and consequently, their user terms are invalid if they create a significant imbalance in parties’ rights and obligations to the detriment of the consumer (art. 3). Though, deciding whether a significant imbalance exist is easier said than done in a virtual environment, because the status quo without the user term is up for debate. Would the consumer, per default, have access to the platform? To find an answer, the access restrictions in the user terms of SMPs are compared to historical access restrictions related to non-platform actors.
This seminar covers the dilemma of restrictive user terms from a bird's-eye view. The project this presentation is based on is two-folded: it assesses the different legal orders applicable to user terms on SMP addressing both the perspective of the platform and the platform’s users and, through comparative research, examines whether a discrepancy exists between access restrictions on SMPs and their offline equivalents. The project covers four Member States (DE, DK, IT, NL). This presentation will cover the findings of two of them: Germany and the Netherlands.
Speaker: Berdien van der Donk LL.M. (University of Copenhagen & University of Leiden)
Berdien van der Donk is a PhD fellow at the Centre for Private Governance (CEPRI), University of Copenhagen. She is currently a visiting researcher at TILT. Outside of academia, she works as a legal analyst for trademark and domain name cases (Norway/Denmark) at Clarivate’s Darts-IP.
Her research mainly covers (social media) platforms and the content on their services. Currently, her research focuses on the invalidity of restrictive clauses in user terms, but she has previously published on copyright and trademark law, trade secrets, dynamic injunctions, and fundamental rights.
Moderator: Inge Graef
*Attendance is free. To register for this event please contact: Maartje van Genk