International law in the age of digital media: Reflections on history, the neoliberal communication sphere, and race

Abstract

In his new monograph, Informed Publics, Media, and International Law, Daniel Joyce sets out to explore the role of the media both as an object of international legal regulation and as an influence on international law’s development and structure.1 Given the obvious connections between the media and international law, one might have expected the topic to have already garnered extensive interest within the existing literature. Yet, as Joyce observes at the outset, ‘[f]or all its ubiquity and power, the media has to date been the subject of surprisingly limited attention within international legal scholarship’.2 In this context, the publication of Joyce’s text may be viewed as part of a recent wave of literature that signals growing interest in the subject amongst international legal scholars, whether due to rising concerns over the use of international law in public debates,3 or as a result of the exponential growth of new channels of communication, most notably digital media platforms.4 In tackling the multi-dimensional relationship between the media and international law, Joyce’s approach is historical and critical, illustrating both ‘the resilience of existing international law frameworks, but also their significant silences’.5 The historical perspective is particularly valuable in surfacing interesting continuities between present-day controversies and earlier eras. For example, Joyce reveals how contemporary concerns about the relationship between international law, populism, and social media,6 find echoes in a range of formative debates about the relationship between international law, public opinion, and the press in the early twentieth century.7 The drawing of historical parallels is particularly important given the fast pace of developments in the sphere of communication in the digital age. In particular, as the notion of Web 3.0 (or Web3)—the much-hyped third generation of the Internet premised on ‘decentralised’ technologies, touted to follow static webpages (Web 1.0) and social media and user-generated content (Web 2.0)—begins to enter the public consciousness, adopting a historical perspective may help nurture what Elizabeth Renieris recently termed an outlook of ‘informed skepticism’.8 As Renieris explains, similar to its predecessors, ‘Web3 is imagined as being apolitical, open, decentralized and inclusive’, seemingly oblivious to the fact that ‘[t]his ethos—characterised by free speech absolutism and free market ideals—has enabled all manner of online harms, including rampant mis- and disinformation, racism, discrimination, hate speech and harassment, concentrations of power, toxic business models and limited accountability’.9 In this context, Joyce’s text is particularly useful in situating the shifting contemporary communication sphere along a broader historical trajectory, tracing the neoliberalisation of public communication across different time-periods and settings, and shining a spotlight on the role performed by international law in the process. Beyond its critical and historical orientation, at the centre of Joyce’s text is the concept of ‘informed publics’, characterised as ‘a more inclusive and messier picture of the social and connective tissue of international law’ than the notion of ‘international community’.10 If claims made in the name of the latter are often merely ‘attempts to translate the particular into a language of self-serving universalism’,11 Joyce advances the notion of ‘informed publics’ as ‘a model of international civil society which allows for greater variety of forms of association’, both by ‘contest[ing] the state-centrism of international law and better reflect[ing] a system which involves not a single participatory democracy but a range of regional, domestic and local polities’.12 For Joyce, ‘international law depends on informed global publics to function and to address the complex global problems which we face’.13 In this way, the concept of ‘informed publics’ emerges as a ‘normative goal’ for international law, one which ‘remains critical to any future conception and realisation of a multilateral system of global governance’.14 It is the concept of ‘informed publics’ that draws into view the dual inquiry at the centre of Joyce’s research:15 first, the role of international law in regulating the media, including new forms of digital media; and second, the reliance of international law on the media in communicating its objectives and norms as well as in its functioning as a system. In reflecting on Joyce’s work, this review follows the book’s structure, with a particular focus on the text’s discussion of the relationship between digital media and international law. In the first half of the book, Joyce examines a range of international law frameworks applicable to the media which adhere to different regulatory models—each recognising and foregrounding certain values and interests to the marginalisation and exclusion of others. In Chapter 2, Joyce examines the regulatory vision of free publics, encompassing the ways in which human rights law (particularly freedom of expression) has sought to protect media freedom from State intervention, as well as how international trade law has sought to ensure free markets for the global media economy.16 Both areas of law emphasise media freedom—with human rights law focused on protecting the media’s societal watchdog function, and trade law focused on deregulation and market access.17 Yet, as Joyce explains, this emphasis comes at the expense of addressing ‘the power of the media itself and its own connections with violence and the abuse of rights’.18 In Chapter 3, Joyce turns to the regulatory model of endangered publics, encompassing the ways in which human rights law (concerning incitement, hate speech, and propaganda), international criminal law (concerning atrocity speech), and international humanitarian law (concerning media activities in armed conflict) address the connections between the media and violence.19 While these areas of law counter the reductively positive image of the media that underpins the regulatory vision of free publics, Joyce observes that they nonetheless ‘configure the dangers of media power as being exceptional rather than structural’ and thereby contribute to ‘a failure to connect media violence with its economic and political power’.20 Finally, in Chapter 4, Joyce discusses the regulatory model of digital publics, encompassing forms of Internet, data, and platform governance, which are characterised by ‘an absence of international law’ and an investment of faith in the promise of ‘self-regulation, market-driven innovation and techno-libertarianism’.21 Joyce suggests that while international law and the media are often depicted as being ‘existentially threatened by technological disruption’, at least part of this ‘crisis’ concerns ‘the ongoing failure of international legal frameworks to address the rise of information capitalism in the form of digital media monopoly’.22 Across these chapters, Joyce offers a compelling analysis of the international regulatory landscape applicable to the media, traversing a diversity of contexts to critically surface both the blind spots and biases identifiable within a range of fields of international law. In an era of specialisation, where scholarship is becoming increasingly siloed, Joyce’s ability to bring diverse fields of international law into conversation with one another is particularly valuable. At the same time, by adopting such a broad perspective some level of detail and nuance is inevitably sacrificed. In exploring the relationship between international law and new forms of digital media in particular, Joyce’s text unveils many of the challenges that have arisen in attempting to reign in the power of today’s leading digital media companies. However, to some extent, I would argue, Joyce understates the significance of both the state and the law in both enabling the neoliberalisation of the contemporary digital communication sphere and in continuing to legitimate various repressive practices undertaken within it. Whilst acknowledging that the Internet ‘evolved in collaborations between governments, the military and academic institutions’,23 the role of both the state and legal frameworks in the Internet’s historical trajectory remains somewhat marginalised in Joyce’s account. The influence of the state on the shape of the contemporary online environment is well documented. Monika Zalnieriute, for example, discusses the dominance of the ‘US Information-Industrial-Complex’, which ‘catalysed the rapid growth of information and communication technologies within the global economy, while firmly embedding US strategic interests and companies at the heart of the current neoliberal regime’.24 Support from the US government took at least two forms. First, the US government provided significant amounts of funding and awarded a range of procurement contracts to US technology companies—a fact that not only undercuts the neoliberal myth that private wealth accumulates because free markets are kept distinct from public expenditure, but also provides important context for the Edward Snowden disclosures which revealed close ties between the US National Security Agency and a number of US technology giants.25 Second, the US government also supported its largest US technology companies by promoting an ‘Internet Freedom’ agenda abroad, premised on ‘globally “normalised” strong legal protections for intellectual property rights, advertising-based consumerism and the commodification of information and personal data’.26 And it is here that both domestic and international law become part of the story of the neoliberalisation of the contemporary online environment. As the works of Julie Cohen and Amy Kapczynski, amongst others, have demonstrated, ‘rising platform power, monopoly power, and the power that technology can give capital over workers and governments over the governed … are mediated at every moment by law’.27 At the domestic level, fields such as contract, trade-secrecy, intermediary immunities, privacy, and the First Amendment helped anchor the rising power of online platforms, while at the international level, trade agreements have prohibited the restriction of cross-border online information flows and forbidden data localization rules.28 As Kapczynski argues, ‘a wave has rippled through our law … [which], intertwined with the architecture of digital networks, has enabled the creation of the vast new firms that wield new forms of surveillance and algorithmic power, … [and] delivered us a form of neoliberal capitalism that is inclined toward monopoly, concentrated power, and inequality’.29 By placing emphasis on the absence of international law in the digital domain,30 Joyce’s account understates some of the ways in which both domestic and international law have helped shape the neoliberal communication sphere that characterises the contemporary online environment. Beyond shaping today’s online environment, international law also performs a role in legitimating certain repressive practices within it. Joyce’s account is alive to law’s legitimation function, particularly in the context of discussing the co-option of the vocabulary of human rights law by social media companies ‘not as binding legal norms, but as available ingredients to enable corporate self-regulation and marketing’, as well as ‘to minimise the damage to their reputations’.31 Yet, the legitimation function of international law extends beyond this corporate context. Consider, for example, the recent majority judgment of the Grand Chamber of the European Court of Human Rights in the bulk surveillance case of Big Brother Watch and Others v UK.32 The judgment endorsed the legality of bulk surveillance operations as in principle ‘valuable’ and of ‘vital importance’ for states seeking to identify threats to their national security,33 provided such programmes contain sufficient ‘guarantees against abuse’ and are subject to a set of ‘end-to-end safeguards’.34 By adopting this approach, the majority judgment adhered to a form of ‘procedural fetishism’,35 which has been characterised as nothing less than ‘a grand, definitive normalization of mass surveillance[,] by a virtually unanimous Grand Chamber[,] for decades to come’.36 In his concluding remarks, Joyce suggests that ‘it is important to reconsider the value and resilience of existing international media law frameworks including, most significantly, the human rights model, but also to be realistic about the failures and problems associated with that system’.37 Yet, while Joyce acknowledges the limits of the vocabulary of human rights law in general terms—including how the human rights system ‘struggles with controlling private power, individuates and simplifies collective and highly complex issues, and often underplays their structural dimension’38—a more detailed exploration of the ways in which human rights law has legitimated and struggled to reign in particular forms of private and state power in the digital domain would have helped prepare the ground for assessing the extent to which it is equipped to address the accountability deficits associated with the contemporary online environment.39 In the second half of the book, Joyce turns to examine how the media is coming to shape various dimensions of international law. In Chapter 5, Joyce explores publicity as a technique utilised by international courts and actors to claim legitimacy and signal their authority. Joyce focuses in particular on the fields of international criminal law and human rights law, observing how ‘mediatized trials have public relations benefits, but also present the now familiar dangers of media spectacle’, whilst ‘human rights witnessing promises connection but can also deliver commodification and simplification’.40 Reflecting on these tensions, Joyce concludes that while adopting media forms and engaging in public relations may be understood as ‘the international legal system … responding to demands for greater transparency, accountability and participation’, ultimately ‘publicity cannot act as a substitute for informed publics who are so often kept at a distance from the levers of institutional power and influence’.41 In Chapter 6, Joyce considers the broader critique of the communicative capitalism that underpins international law’s reliance on the media and its increasingly digitalised form. To this end, Joyce examines ‘not only the media’s role in bringing issues to public consciousness, but also its implication in the preservation of silences and the maintenance of obsessions and anxieties’,42 and reveals the ways in which the growing reliance of international actors on digital media platforms ‘further entangles the field with neoliberal ideologies embedded within the infrastructure of Silicon Valley’.43 The result, Joyce concludes, is that ‘publicity promises participation, but delivers digital media monopoly, corporate “values” as structuring norms and increasing private power on the international plane’.44 Joyce’s analysis in these chapters is again impressive, drawing on a diversity of disciplinary perspectives ranging from political theory to communications studies to reveal how the turn by international actors to mediated techniques of publicity has produced ‘effects of both visibility (for one or a group of victims or a theme) and invisibility (for other forgotten victims, contextual analysis and different or competing claims and causes)’,45 whilst masking and facilitating ‘the broader privatisation of the public sphere’.46 Where the text might have delved deeper, however, is in surfacing the ways in which the contemporary online environment enables the reproduction of inequalities, for example along gender and racial lines. In discussing mass atrocities in Myanmar, for example, Joyce points to the failure of Facebook to prevent its platform being used as a tool to incite violence against the Rohingya community.47 However, what is omitted from Joyce’s account is any exploration of the reasons behind Facebook’s passivity in this context.48 Reflecting on the contrast between Facebook’s de-platforming of Donald Trump following the US Capitol riots and its general passivity in Myanmar, Rebecca Hamilton has reflected upon ‘the role that economic and political power—coupled with cultural affinity, and distributed unevenly across and within States—plays in the decisions of major [social media companies] about what content stays on their platforms’.49 According to Hamilton, global inequities behind how content is moderated on digital platforms are partially a reflection of capitalism, calculated in the advertiser revenue that a platform derives from an American user compared to a user in Myanmar, and partially a reflection of unevenly distributed political power, with ‘years of local activism, coupled with international reporting and a United Nations Commission of Inquiry [being required] to finally get Facebook to take the kind of de-platforming action [in Myanmar that] it did in the United States’.50 But another part of the story concerns systemic racial bias. As Hamilton notes, major social media companies ‘continue to default to the cultural assumptions and political and economic incentives held by their predominantly white American male founders’.51 This ongoing ‘diversity crisis’ in the digital technology sector is significant since, as UN Special Rapporteur on contemporary forms of racism, E Tendayi Achiume, recently observed, ‘technology … that disproportionately excludes women, racial, ethnic and other minorities is likely to reproduce these inequalities when it is deployed’.52 Joyce also critically discusses ‘platform humanitarianism’, encompassing the turn within the human rights movement towards ‘commodified forms of advocacy, fundraising and competition for attention and power between NGOs’, initially drawing on the emergence of global media, but today increasingly reliant on digital media platforms ‘to communicate its messages, seek publicity and engage in digital witnessing in the attempt to capture audiences motivated by humanitarian concerns’.53 One example that Joyce explores in this context is the notorious Kony 2012 campaign, in which an organisation called Invisible Children distributed a video across various digital media platforms calling for the capture and arrest of the leader of the Lord’s Resistance Army, Joseph Kony, by the end of 2012.54 As Joyce notes, the aim of the video was ‘to engage the American people to place on their government to the of military in to the in its to capture In this way, the video sought to a by the International Court into a in to his Joyce the Kony 2012 for the of the political in and to its whilst also to the broader that the focus of such may attention from social in the Yet, as the of has recently a to this story is how the a example of by as ‘the of social and economic value from the racial of another only is the Kony 2012 video with racial but by the US of the may also be within a broader historical in which international law has performed a role in the of value from the in international such as the or and military as For the of this form of global is the of and the of form of between the wealth and the of While Joyce acknowledges the that media may audiences and publics from for the of the racial dimensions of digital are at but not In Informed Publics, Daniel Joyce has made a valuable towards the complex and diverse connections between international law and the the end of the book, Joyce observes its ‘the media is not given the significance or in international legal which it has in other such as international political and social It is that with the publication of Joyce’s book, this to at a when international actors are to on the future regulation and use of digital media platforms, they would well to on the critical and historical in this The is to the and in the of International discussion on Daniel Joyce’s Informed Publics, and International Law, as well as the for their are the