BigTech may well be the new BigPharma where local, national, or regional human rights-based litigation and human rights-based regulation is concerned. While the recent exchanges between US presidential candidate Senator Elizabeth Warren and Facebook’s Mark Zuckerberg signal a looming antitrust showdown, recent regional judicial and local legislative developments concretely demonstrate the human rights-based trajectory of future tech regulation. Both the 3 October 2019 Judgment of the European Court of Justice in Eva Glawischnig-Piesczek v. Facebook Ireland Limited (hereafter, ‘ECJ Facebook Judgment’, see reported summaries of this Judgment here, here, here, and here),and the recent passage of California’s new law (based on Assembly Bill 5 and taking effect in January 2020) – which limits the use of independent contractors on which the business models of the “gig economy” are based – significantly demonstrate that the freewheeling, thinly-regulated, and largely-unrestrained era of “creative freedom” and “digital disruption” for tech companies and online platforms may well be over. What is most interesting from these recent developments is that they are distinct legal paradigms now originating from courts and legislatures, whereas the explicit application of international human rights law to the specific issues and idiosyncracies of BigTech thus far has often remained more a matter postulated by interdisciplinary academics, legal scholars and civil society advocates.
In this post, I highlight key features both from the ECJ judgment and California’s new law, signaling three key strategies that possibly herald the future of international, regional, and/or local human rights-based regulation for BigTech. First, both the ECJ judgment and California’s law explicitly shift burdens of proving legal exemptions to BigTech, suggestive of some sensitivity towards the asymmetries and inequalities of circumstances between human rights victims and BigTech. Second, both the ECJ judgment and California’s law seek to widen the range of applicable legal entitlements and human rights-based protections, whether for workers in the gig economy under California law or for those seeking injunctive relief against the storage (and or risk of disclosure) of illegal content by Facebook anywhere in the world. Finally, both the ECJ judgment and California’s law recognize possible spaces where international human rights law can evolve or become more explicit in its application to BigTech issues, and thus do not foreclose future deepening of human rights-based regulation with respect to BigTech.