Litteratur

 

 

 

ANNI CARLSSON,Constitutional Protection of Freedom of Expression in the Age of Social Media — A Comparative Study (ak.avh.), Uppsala universitet. 540 s.

 

Introduction
Anni Carlsson defended her doctoral thesis on 14 June 2024 in Uppsala, and I was the faculty opponent. Carlsson’s dissertation continues the comparative constitutional law traditions of Uppsala University’s Faculty of Law. In her work, the author studies the constitutional protection of freedom of speech on social media. Carlsson has selected different jurisdictions for detailed examinations. Those selected for comparison are Sweden, the US, and Germany, and as two of the selected countries are European, she also analyses European law (European Union law and the European Convention on Human Rights).
    The author addresses and creditably deals with the most obvious question, i.e. why in legal comparisons there is always Germany (EU) and the United States in addition to the author's home country. Germany has a very diverse constitutional doctrine and already years of experience with its own social media legislation. The United States, on the other hand, is the home of social media companies. From a comparative point of view, Sweden also offers a good comparison, because its regulation of freedom of speech with its three different constitutions is unique. Despite the traditional starting point, in terms of the theme of the research, the choices of comparison countries are justified.
    The book is quite massive and even exhausting, full of information and details. However, Carlsson keeps her focus and studies the research questions with merit. This book offers a perspective on both freedom of speech in the age of social media and how different jurisdictions have answered the challenge of social media. The research has been conducted in a disciplined manner, and it produces a snapshot of the challenges created by social media and how law has responded to them in the mid-2020s based on the republican approach to free speech and the comparative approach. It is a very ambitious work and clearly required a lot of time.
    Through the comparative analysis of different constitutional law mechanisms, the author aims to examine how freedom of expression impacts relationships between users and social media platforms. Basically, this relationship is within the realm of private law, but through regulation and fundamental rights, public power is entitled not only to allow social media to operate but also to protect the user’s rights. The key constitutional law doctrines in this sense are the public forum doctrine, the horizontal effect of fundamental rights (drittwirkung), and positive obligations. Consequently, states have the obligation to protect fundamental rights also in private relations. The themes of the doctoral research are related to the current debate on digital constitutionalism. In this discussion, one trend is the power constituted by the internet's own norms, a second trend emphasizes

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digital rights, and a third is the growing role of traditional state law in internet regulation. Carlsson associates herself with the latter of the three and especially aligns with Kaarlo Tuori’s ideas on modern state law. As mentioned above, freedom of speech is understood as the republican model. This and focusing on state law is understandable from the viewpoint of scope and delimitation but creates different kinds of issues which are dealt with later.
    Without intending to spoil the excitement of anyone reading the review, I can sum up the book as a good study of a difficult and very timely subject. The author holds several threads together and produces new information for the research of digital constitutionalism, internet regulation, freedom of speech, and social media. These analyses and arguments can be used as grounds for new research and legislative actions.

 

Presentation
The book is divided into three parts. In the first part, the author presents an overview of the topic and the theoretical basis of the dissertation. The second part is a presentation of the different legal systems from selected perspectives. In the third part, Carlsson uses the materials from the previous sections specifically to deal with the social media perspective and creates a summary of her research.
    The book has nine chapters, which are divided into subsections. In the subsections, the numbering stretches up to the fifth level. Structurally, the book progresses consistently and forms a coherent whole. As a reading experience, the number of sub-level titles cuts off thought in many places. This and the total length of more than 500 pages make reading challenging, even exhausting. This is further emphasized by presenting the researchers in a way that resembles talking heads in documentaries. In some parts, it is difficult to separate the author's own voice from the arguments of the cited researchers. The perspective of the work is an examination of social media regulation from the point of view of constitutionally protected freedom of speech. The selected countries are the usual suspects, which the author herself admits. The special questions selected for examination — the public forum doctrine and the horizontal effect of fundamental rights (drittwirkung) — are quite novel, offering new information and perspectives. The two themes cut through the whole book and give backbone to the study of the details. On the other hand, in this study, transnational human rights regulation is delineated and the focus is on state regulation. Limitations are essential when doing research, especially in a rather massive work. It is true that the supranational human rights system is soft law, just as state regulation is enforceable hard law. However, upon incorporation, international human rights treaties are part of the national legal system and are sources of law. The interpretation of national fundamental rights is in an overlapping relationship and interaction with international human rights treaties. At the same time, it must be stated that global and even transatlantic regulation of social media based on human rights is likely to be based on UN human rights conventions. The minor role of the perspective of human rights treaties and human rights research also produces something of a perspective bias. In the constitutional law approach, positive obligations and the horizontal relationship are keyways of influencing even private law relationships.

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From a human rights perspective, a more precise division of the state's obligations to respect, protect, promote, and fulfill human rights obligations could have brought a different analytical perspective to the research.
    In Europe, the European Convention on Human Rights and the European Court of Human Rights, which interprets it, have their own special status as part of European law. In part two, this human rights system of the Council of Europe is examined as its own legal order. Similarly, the European Union receives its own chapter. At this point, the book's organization is problematic, because the EU's digital regulation — i.e., in this context especially the DSA (Digital Services Act) and the DMA (Digital Markets Act) — plays a central role. The EU Commission is responsible for monitoring the DMA, but the DSA is implemented as part of national legal systems. The DSA includes the new EU approach to the extent that there is national margin for regulation. Paradoxically, the EU functions in practice like a nation state, in which case the limitation of the implementation perspective also limits one key mechanism of digital constitutionalism.
    Part two is the actual comparative section, where all the legal systems selected for comparison are discussed with regard to the same questions and specifically with the regulation of social media at the center. The selected viewpoints differ from the traditional viewpoints of internet regulation research. The comparison has been carried out consistently and with discipline. Due to the novelty of the viewpoints, the study presents new information on the compared legal systems even for experts. In particular, there is not much comparative research on the regulation of social media in this scope.
    It is interesting to follow the argumentation of how the public forum doctrine has changed in the United States. At one stage in its development, it was adopted as part of the practice of the European Court of Human Rights. Correspondingly, in Germany, a similar doctrine has been implemented with a horizontal effect on fundamental rights. In Sweden, on the other hand, there is no similar doctrine. The perspective opens a view of the mechanisms by which constitutional law doctrines can turn into legal implants. On the other hand, as the case of Sweden shows, the national constitution with its doctrinal structures is still a key determinant of the implementation of the protection of fundamental rights. This part is full of details but selected perspectives from the horizontal effect to the public forum doctrine create the structure for all the chapters. Especially the view of private places as public places is a novel and innovative approach to social media platforms. However, the question remains open as to whether social media platforms can be considered public due to the doctrine or if such an idea of public places/forums is applicable in the social media context.
    Another key theme is positive obligations and the horizontal impact of human and fundamental rights. In this regard, the difference between the fundamental rights systems brings out the different level of development of the doctrines and even some kind of impossibility in their own context. The construction of this approach would have benefited the most from the current structuring of human rights research. Illustratively, in the final phase, there is an interesting suggestion that the constitution in Ireland — the home country of practically all social media companies registered in Europe — would recognize the horizontal effect. In terms of the

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completion of the book, it is probably good that Ireland is not discussed but is left to further research.
    In part three, Carlsson summarizes her arguments and presents her own conclusions. Her arguments are based on the viewpoint arrived at in parts one and two. This part has two chapters that deliver new viewpoints and even de lege ferenda style suggestions. The most interesting aspect is the idea of free speech as a square. Jack Balkin has stated that free speech is a triangle, and many constitutional law lawyers still hold the idea that free speech and other fundamental rights have a two-part relation. The idea of the square opens up the analytical possibility of looking at the different relationships of the actors in a new way. This would be an excellent place to refine the observation into an article.

 

Opinion
In Finland and internationally, the scope and length of dissertations have decreased over the past decades. The traditional extensive monograph is disappearing in many countries. The Finnish style of criticism is often very direct. I hope this is taken into account when reading the review.
    Carlsson's dissertation is a good study of a difficult topic. Scientifically, it is excellently executed. In the book, the idea is visible throughout all the chapters, the conclusions answer the research question, and the doctoral candidate really claims something. There is a lot of information and detail in the research. It provides a good source for other studies and an example of a disciplined legal comparison. It would be excellent for the book to have a wide audience in the field of digital constitutional law, social media, and internet research.
    From the perspectives of social media legal research and freedom of speech research, the book is very interesting. It is a significant addition to the analysis of digital constitutionalism and presents several interesting perspectives. As a reading experience, dissertations always require a lot of work. At the same time, the author of the dissertation must demonstrate her/his reading in the field of the dissertation, be original, and justify her/his argument. As a result, the book is massive and even exhausting. The book contains a lot of information and references to other researchers, among which it is sometimes difficult to find the “plot”. On the other hand, the effort is rewarded. The book contains the ingredients for several new books and the basis for new studies.

 

Riku Neuvonen