The internet has heavily influenced our communicative practices (Kettemann, 2018) and will continue to do so. Platforms that are privately owned communication spaces have become systemically important for public discourse, in itself a key element of a free and democratic society (Hölig & Hasebrink, 2019). Today, a quickly growing percentage of communication takes place online. We will finally show how public and private judicial and quasi-judicial approaches towards reinstatement can interact (Kadri & Klonick, 2019). In comparative case studies of US and German courts we will address the following questions: Can users sue platforms to have deleted posts and videos reinstated? Do they have a right to a Facebook or Twitter account? Do platforms have corresponding duties to treat users equally in furnishing these services as long as users do not violate the terms of service or as long as users do not violate local law? We will also point to a larger issue, namely the differences in the treatment of states and private companies as threats to and/or guarantors of fundamental rights between the jurisdictions under review. 1Īnalysing a selection of US and German court cases on the question of reinstatement of accounts and republication of deleted content, we will draw out the differences in constitutional and statutory law and show why they explain some of the divergences. Put concisely: under what circumstances should platforms be forced by courts to reinstate content? We will address this question by looking at Germany and the United States, two jurisdictions that deal with the issue of ‘must carry’ in a very different way. This paper asks whether and in what way this obligation extends especially to social networks and to the reinstatement of user comments that may have been wrongfully deleted. Companies, as the (international) law and practice of social responsibility of transnational corporations (Ruggie, 2008 2011) demonstrates, have a responsibility not to violate human rights and to offer redress mechanisms, when they do. But states do not only have the negative obligation to refrain from violating the right to freedom of expression and other human rights in the digital environment but also the positive obligation to protect human rights. The private power of platforms is unprecedented and sits uneasily with the primary responsibility and ultimate obligation of states to protect human rights and fundamental freedoms in the digital environment. Platforms and their terms of service have a decisive impact on freedom of expression and communication online (Suzor, 2018). Back up: can users sue platforms to reinstate deleted content?. Keywords: Platforms, Intermediaries, Private spaces, Courts, Indirect application of human rights Citation: Received: MaReviewed: ApPublished: JLicence: Creative Commons Attribution 3.0 Germany Competing interests: The author has declared that no competing interests exist that have influenced the text.
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