Juridical Approaches to New Forms of Publicness

Berlin.
The next speaker in this session at the Berlin Symposium is the Hans-Bredow-Institut’s Wolfgang Schulz, whose focus is on the impact of social media in changing the public sphere. Social media combine two key aspects: they articulate the social graph (providing social networking functionalities), and they lower the barriers for user-generated content (providing communicative and content sharing functionalities).

Uses of social media are governed by various rules: legally protected interests include copyright, personal data, communication transparency, protection of the private sphere, protection of minors, prohibition of hate speech, etc.; governance, though, takes place through technological means (software design and code), crowd-originated social norms, and other processes.

Also, what is the public (or the public sphere) in this context? The approach here cannot be Habermasian, but instead follows Luhmann: things are public of follow-on communications take them as known facts. This is a relative concept, of course: how public, and to whom? There are two major types of public spheres here: media publicness, and encounter publicness. (Wolfgang himself uses the term ‘publicity’, but I think ‘publicness’ is actually more appropriate here.)

Of these, ‘media publicness’ means that information is generally assumed to be known; there is a journalistic-editorial selection process; and selection used to operate from a monopolistic position which saw media facilitate the self-observation of society. But now, these traditional journalistic functions are diminishing; there is an accelerated fragmentation into several diverse public spheres. Indeed, new forms of publicnesses are forming: a search engine publicness, for example (where information is passively – on demand – rather than actively – by default – distributed, assumed to be known only in certain contexts, but also available for algorithmic selection).

Further, private public spheres are now emerging: public spheres including only a specific in-group of friends on social networking platforms, for example, where information is assumed only to be known within this community. Here, selection takes place according to private motives, and network effects apply. This may also lead to ‘flash publicness’, however, where through network effects previously limited information becomes generally known (by articulating from social media into mainstream media, for example).

So, the overall public sphere now consists of a central core of the remaining mass media, augmented by search engines, social media spaces, and other elements. This is difficult for legal frameworks to deal with, as recent cases in Germany show – the Spick Mich platform for anonymously rating teachers was sued by teachers, for example, and this case raised divisions between personal data protection and privacy law, as well as questions of what forms of content can be considered to be journalistic/editorial content. The case also shows different conceptions of public spheres – is the classroom the public sphere in which statements are made (and for which they are intended), is it the school as a whole, or even (through the Internet) the whole world?

Similarly, where videos uploaded to YouTube contained copyrighted content, is the platform provider not only required to respond to take-down notices, but also liable for damages? This may depend on the editorial selection processes on the platform, and the quality of their responses to issues identified by copyright holders and others. The structural consequences of all of this are important: what does it mean to make something ‘publicly available’ – when is information ‘public’; how far does ‘private’ copying go?

So: policy makers have to identify different basic types of information and communication services (taking into account fundamental structural changes). Judges require more concrete criteria for their rulings to be provided by legislators, and need better mechanisms for developing a more detailed understanding of the media technologies they are asked to rule on. Both need more interdisciplinary research to investigate the spaces between private and public.