Public-Private .. a hoax?

When a company opens its databases to users, as Amazon, Google, and eBay have done with their Web services, it is encouraging participation at new levels. The corporation’s data becomes part of the commons and an invitation to participate. People who take advantage of these capabilities are no longer customers; they’re the company’s developers, vendors, skunk works, and fan base.
Kelly, Kevin, 08.01.05: We Are the Web; in: Wired
Which is, of course, embellishment. However, there is more to it as an article in The Economist, titled
made recently clear. It raised the question if social media, shutting down websites, that they see as channel for hate speech, are in breach of the law by undermining “free speech”. Of course, it is easy to say that they have the right doing so and even the obligation. However, at second glance it is not as simple as that. In actual fact it turns out to be extremely tricky:
The meaning of the so-called rule of law is primarily protecting citizens against arbitrary action of the state. However, it is obligation of the state as democratic instance to guarantee freedom of speech, but also to agree in this very same function of being a democratic state on the limits of freedom of speech. It is about the limit given in the case of one individual or group infringing the rights of (an)other individual(s) or groups – the latter is the second dimension of the rule of law, namely the protection of individuals against each other. In other words, we are a bit in trouble, not least if we take as point of reference T.H.Marshall’s view on citizenship with the three dimensions: civil, political and socio-economic rights: the state, against which citizens have to be protected by the rule of law in case of unjustified state action has to apply the same rule of law in case of citizens that are in conflict with each other. The problem is that these citizens would, then, have the right to use the rule of law if they feel threatened or wrongly treated by the state. It seems to be an endless circle of recursive applications.

36721749 – wooden gavel on book with golden scale on table

The solution seems – at least in theory – that citizens are actually not simply individuals but already as such “social instances”. Thus, the rule of law can only be meaningful if it is intrinsically conjoined with the rule of democracy – obviously a non-juridically defined matter, to be valued in the same realm of praxis.
This, then, is also the problem when it comes to decisions concerning social media and the (not existing) obligation to publish information that is submitted by third parties: such “institutions” as facebook etc. are entirely private agencies. Thus we are confronted with some far-reaching contradiction: while they are in some way public (namely they are publicly traded), they are equally private and self-referential, defined by the one and sole motive of making business. Legally it simply means:
  • In the business-cases we are dealing with terms of use with reference of an exchange relationship, in principle focused on a mutual interest, namely the conclusion of a contract
  • However, in the case of publicness we are dealing with terms of mutual responsibility with reference of common interest which needs to be negotiated – which includes also the conflict of interest, the result of which is conclude by a treaty.
The kernel is, consequently, to look at the congruence and divergence of private and public. This emerges from business leaving the private realm, becoming public (and suggesting, like facebook’s Zuckerberg in the Washington hering, to be

an idealistic and optimistic company. For most of our existence, we focused on all of the good that connecting people can do. And, as Facebook has grown, people everywhere have gotten a powerful new tool for staying connected to the people they love, for making their voices heard and for building communities and businesses.

And it emerges if publicness claims to fulfill its “mission” by accepting the rules of private business (as we find it in so-called public-private partnerships).
Annunci