Well, TBH, while this may be true, there is a questionmark on whether it should be. Europe recognises the horizontal application of fundamental rights in many respects , including with regard to freedom of expression, the right to privacy and equal opportunities/treatment.
“Horizontal” meaning in this case that under human/civil rights rules the state has the obligation to create a legal environment where those rights are also guaranteed in the context of relationships between private actors.
Using the “private organisations can ban you from using their platforms/services” argument to get rid of people you don’t like is dangerous in so many ways because you hand unchecked power to those organisations that can and will ultimately be used against everyone, including you
From Twitter censorship to being allowed to refuse to bake a fucking cake for a gay wedding. It’s a dangerous route to go down and, as we have seen with the gay wedding cakes, only leads to a situation where members of a fragmented society are drawing icing nozzles at dawn.
It does not actually force us to examine whether there should in fact be an obligation on a business to bake cakes for everyone regardless of their sexuality or to apply some universal standards of behaviour on all of its customers/users and what those standards should be.
Would it not be better to acknowledge that certain fundamental rights should indeed have horizontal application and then spend our energy on defining the limits of those fundamental rights and the extent to which they must be balanced against the rights of others?
I just can’t help thinking that by coming on board with this “it’s-only-a-right-against-the-state” narrative we are lured into a Scalia-style originalist trap. And I somehow don’t think that will work out well for lefties/liberals.
Am “happy” to report that a German Higher Court agreed with my assessment in this thread, when it told Facebook that it cannot delete a comment on its site at its discretion for violating its content standards, if doing so violates Freedom of Expression sueddeutsche.de/digital/facebo…
Specifically, Facebook cannot limit user speech any more restrictively than a public body would be able to under FoE requirements.
Am happy because this would make content regulation by private entities subject to compliance with fundamental rights principles rather than allow arbitrary or “outrage-driven” curation that would ultimately give undue power to platforms.
Not so happy because the comment in question was made by an AfD member. But rule of law means one rule for all, right?
I think the decision is not yet legally binding, so this may not be the final word. But the idea of “horizontal application” of human rights standards in private forums is maybe not so far fetched after all - at least not in jurisdictions that are governed by strong HR rules.
