Speed, Scope, Scale. In Search of Solutions to the Challenging Legal Nature of the Internet

Call for Papers.

August 15–16, 2024 Center for Studies on Freedom of Expression (CELE) University of Palermo Buenos Aires, Argentina

Volume, speed, and accessibility are among the many features introduced by the internet that have significantly transformed the information ecosystem. The amount of information shared online and the reach of such information are unprecedented and have been regarded as a democratizing force. Furthermore, the ability to store and retrieve information online has dramatically impacted our access to information, political participation, research and learning capabilities, hiring practices, due diligence, and more. While core regulations governing freedom of expression, content, and dissemination have remained largely unchanged, volume, speed, and accessibility are new developments. These issues raise legal questions that have yet to find a satisfactory answer, especially when regulatory proposals—such as the Digital Services Act or the UNESCO regulatory guidelines—consider traffic and speed as factors to take into account when developing risk mitigation strategies [^1].

Traditionally, we have considered volume, speed, and accessibility to assess damages separately from the legal or illegal nature of the content, which is evaluated under different rules or principles. So, for instance, a judge may find a defamatory comment actionable and, following that finding, could assess damages based on the impact of the defamation, its reach, its dissemination, and its persistence within the affected individual’s community. A comment made in private at a bar would be assessed differently than one published in the town’s newspaper. But the link between content and damages would be necessary in our traditional approach.

However, it is increasingly recognized that the volume, speed, and accessibility of the Internet are believed to cause harm that is independent of the content itself. This is what happens, for instance, when the accumulation of shocking or disturbing—yet protected—individual pieces of content may amount to a form of harm that is simply greater than the sum of its parts. This is what happens, for example, when coordinated criticism directed at someone creates a chilling effect, or when that person perceives such criticism as veiled threats, and so on. We have yet to find sound legal solutions to these forms of harm, which we might—quite reasonably—wish to see addressed or prevented in one way or another.

Accessibility also poses challenges. The fact that information uploaded to the Internet seems to last forever has created issues that did not exist in the 20th century, when information tended to become harder to access as it grew older. Newspaper archives were accessible to researchers and journalists—in public libraries or private archives—but they were difficult to navigate, and only a few actually consulted them. Therefore, that old news story reporting a bar brawl and naming those involved would soon be forgotten. Now that news story may be the first search result for the unfortunate patron’s name. Although some legal systems have attempted to address this problem through the so-called “right to be forgotten,” by devising a legal solution within the data protection regime, the foundations of this special legal framework were not designed for these purposes, and its extension to these cases creates many new problems and dilemmas—especially from the perspective of freedom of expression, access to information, and democratic accountability.

Speed also creates its own set of problems. Legal processes take time. Assessing legality or illegality and ensuring due process takes time. Critical analysis takes time. Take the pandemic, for example: the fact that a handful of individuals in different parts of the world doubt the usefulness of a vaccine would not be so problematic, except that in the Internet age, their skepticism spreads quickly and—depending on the number of people who share it—may constitute a serious threat to public health.

The legal field has, until now, failed to produce adequate responses to these new challenges. Courts, legislators, and advocates have spent most of their time seeking ways to incorporate speed, accessibility (or permanence), and volume into existing law—or laws—without properly addressing the shortcomings of the existing Western legal framework. It is not uncommon to find court decisions or legislative proposals that tweak and adjust standards to account for these factors, typically addressing them indirectly or obscurely and without considering the potential consequences of these extensions on the pillars of modern constitutional and civil law, as well as the foundations of modern legal philosophy.

This call for papers, to be presented at a workshop at the University of Palermo, seeks to generate novel, critical, and creative approaches that may contribute to a better understanding of the problems and their potential solutions. The following examples illustrate the types of questions we are interested in addressing through this call.

• How do volume, speed, and accessibility relate to the traditional constitutional standards developed regarding freedom of expression during the 20th century? Are these standards challenged or reaffirmed by these new problems; should they be revisited or amended?
• How do these problems affect our philosophical notions of causality, obligations, and responsibility? Do we need further conceptual developments in light of these issues? Liability currently requires causation, attribution, and intent (whether through negligence or willful misconduct). Could there be alternative frameworks for specific scenarios? What might those look like? What questions would that raise from a constitutional and philosophical perspective?
• Does the distinction between blameworthy content and damages still make sense in the Internet age? Could the analysis of damages be separated from the content itself? What would the implications be for freedom of expression or legal certainty?
• So far, the legal field has addressed these issues on a case-by-case basis.
• How should the range of cases affected by these characteristics be defined or assessed? Are there alternative ways to define and structure liability for these cases? What principles could guide us in considering liability without strict causality? How should protected societal values be safeguarded differently to incorporate various types of liability for online content?
• How should the characteristics of volume, speed, and accessibility be safeguarded and distinguished from the potential risks they pose? What kinds of remedies could be devised to address only the latter without affecting the former?

Guidelines for Submissions

Applicants are invited to submit a non-anonymized, fully developed abstract (maximum 600 words), in Spanish or English, in PDF format via email to cele@palermo.edu no later than March 15, 2024. Applicants will be notified of our decision no later than the first week of April 2024. Authors of selected abstracts will be invited to an in-person seminar in Buenos Aires, Argentina, to be held in August 2024. Full papers or advanced drafts—in Spanish or English—are due by early July 2024. Travel support may be available upon request on a first-come, first-served basis.