The Internet Balancing Formula. Mart Susi, professor of human rights law at Tallinn University

Introduction

Balancing has swiftly emerged as the dominant discursive practice for reacting to conflicts of

competing fundamental rights in the digital dimension. A discursive practice of stakeholders,

endorsed by international courts and legislators and occasionally by academics, by itself is not

sufficient to conclude thatbalancing is justifiable from ontic or epistemic perspectives. Without such

justifications balancing cannot claim correctness in the digital dimension of the modern society, as

the arguments which have been raised against balancing in the offline dimension – the absence of

morality and the impossibility to avoid arbitrariness – can easily lead to the rejection of balancing as

a universal tool applicable in horizontal Internet relationships and having the potential to bring some

element of order into the predominantly existentialist online realm.Such discursive practice may

have developed independently from any theoretical considerations, being driven primarily by the

political understanding of the need to provide a rational tool against abuses of fundamental rights in

the Internet, or, even more pragmatically, to provide a shield for private online companies against

the claims that they are not concerned with the matter of fundamental rights protection. This article

will explore the question of ontic and epistemic justifiability of balancing in the Internet in horizontal

relationships by private online companies, and thereafter propose a mathematical formula for

balancing conflicting fundamental rights in the digital dimension. This article will demonstrate that

the Internet Balancing Formula, contains certain ontic and epistemic elements which minimize the

strength of arguments usually raised against balancing as a general generic fundamental rights

concept or balancing by private entities in the Internet in particular. Therefore, this Internet

Balancing Formula has the potential to decisively and globally influence the discursive practice of

balancing in the Internet, primarily raising confidence in private balancing by providing a tool to

claim correctness. The article will claim that the Internet Balancing Formula will increase the rational

element of balancing online.

Theoretical background

The rationality aspect

Objections against or acceptance of balancing performed by private online companies is inseparable of objections against or acceptance of content assessment of these companies in principle. This relates to the epistemic dimension of balancing, that is, how the information about conflicting rights is obtained, how it is evaluated and how the outcome is formulated and then implemented in practical terms. There are two principal positions. The first position claims that private companies should not be given the task to assess online content, the second that these companies are best placed to do so. First position is advocated, for example, by the UN Special Rapporteur Frank La Rue’s categorical opinion: “The Special Rapporteur believes that censorship measures should never be delegated to a private entity, … no State should use or force intermediaries to undertake censorship on its

behalf, …1” The concept of “safe heaven” of internet intermediaries is based on similar recognition. The Council of Europe Committee of Minister’s Draft Recommendation C;/Rec (2017x)xx to member states on the roles and responsibilities of internet intermediaries directs in para 1.3.5. “State authorities should not directly or indirectly impose a general obligation on intermediaries to monitor content which they merely give access to, or which they transmit or store, be it by automated means or not”.Most academic authors have the view that private Internet companies should not be trusted the task of protecting fundamental rights, which also means that they should not balance2. Such an absolutist position that the internet companies should never be assigned the task of balancing conflicting rights may have political (private online companies can thereby influence public opinion), economic (if required to perform the task of balancing, private companies cannot rely on artificial intelligence only and would need to hire thousands of network administrators with the task of monitoring network traffic) and constitutional (private online companies have no constitutional authority to balance conflicting fundamental rights) justifications, but it does not have a justification for rejection from the perspective of legal theory.This is so because balancing is an application of the principles theory, which defines principles as optimization requirements demanding “that something be realized to the greatest extent possible given the legal and factual possibilities”.3 The conducting of balancing by private entities is prima facie not against the principles theory, as the digital realm and the necessity of performing balancing by private online entities can be viewed as such concrete legal and factual possibility.

The second position, eg Internet intermediaries are well positioned to balance conflicting rights

online, is gaining strength as recognition of the inevitable. Academic writings are hesitant to accept

this position as justifiable primarily due to the absence of constitutional legitimacy, but international

courts, legislators and the stakeholders do not exhibit similar hesitancy. Both the European Court of

Human Rights4with the statement that balancing by online news portal is an appropriate tool to

1Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, adopted by the UN Human Rights Council on 16 May 2011, para 43 2Coudert and Werkers are critical of the ability of Internet service providers to protect fundamental rights, since these are not binding upon private entities, and of the legitimacy of any balancing conducted by the private entities - Fanny Coudert and Evi Werkers, In The Aftermath of the Promusicae Case: How to Strike the Balance? International Journal of Law and Information Technology, Vol. 18, No 1, 50 - 71. Angepoulus has analysed the efficiency of the notice-and-action systems in the context of the practice of the European regional courts – which in his view support the doctrine of balancing – and concluded that the proper answer to the intermediary liability question must be in the vertical approach, where the states carry the burden of implementing fundamental rights protection formulas and not the private intermediaries - Christina Angelopoulos and Stijn Smet, Notice-and-fair-balance: how to reach a compromise between fundamental rights in European intermediary liability, Journal of Media Law 2016, vol. 8, no 2, 266 – 301, at 300 - 301. 3 Robert Alexy, ATheory of ConstitutionalRights (first publ. 1985), trans. Julian Rivers (Oxford: Oxford University Press, 2002), 47. 4 ECtHR judgment Delfi v. Estonia (Grand Chamber), no 64569/09, 16 June 2015, para 110

react to hate speech in the Delfi case, and the Court of Justice of the EU5 in the Google case with the

statement that data controller (Google as private online company) has itself to conduct the

examination whether to end intrusion into privacy when countering requests for data blocking –

clearly stand behind this second position. The EU new Data Protection Regulation6 includes an

obligation for private entities to balance conflicting rights online.Thereby the judicial task of

balancing is trusted to private entities through the authority of law or courts, which means that the

concern over the proliferation of constitutional adjudication7 within horizontal online relationships is

weakened. The third example is that of global Internet corporations who have taken up the initiative

to establish standards of their own for the purpose of balancing – like Google Advisory Council8 after

the CJEU Google judgment.

Both positions claim that their conclusion isrational, both surprisingly relying on the matter of the

immediate closeness of the private online companies to the content which is published through their

platforms. The first position claims that because of such closeness balancing cannot be rational, the

second claims the contrary, because of such closeness balancing can be rational.Within the digital

domain it seems justified to speak of balancing vis-à-vis rationality not in absolute, but relativeterms.

Those who state that balancing should never be trusted to private companies mean that such

balancing would be irrational. Consequently, it is a rational choice to deny irrational balancing

online. Those who state that private entities can balance mean that such balancing would lead to

rational outcome.The claim of rationality of balancing online depends on whether balancing can be

justified from ontic and epistemic perspectives. If it can, then it is a rational method. If it cannot be

justified from these perspectives, it remains irrational balancing.In principle, the element of

rationality in online balancing is that of a degree, where at one end is the ideal rationality based on

no contestation of ontic and epistemic aspects or discursive practice under ideal conditions. In the

other end is irrationality due to the absence of ontic and epistemic justification or divergent

discursive practices.

The ontic aspect relates to the relationship between the fundamental rights to be balanced, whereas

the epistemic aspect relates to the question whether in the online dimension these rights can be

properly balanced. The latter is the matter of the capabilities of the actors in the online dimension to

perform the balancing exercise. The proposed Internet Balancing Formula becomes central to

increase the degree of rationality in online dimension when rights collide.

5Google Spain SL, Google Inc. v. Agencia Espaoola de Protección de Datos (AEPD), Mario Costeja Gonzáles (Grand Chamber), C-131/12, judgment of 13 May 2014 6Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) 7 L. Besselink, The Proliferation of Constitutional Law and Constitutional Adjudication, or How American Judicial Review Came to Europe After All, 9 Utrecht Law Review, 19, 2013. 8The Advisory Council to Google in the Right to be Forgotten, published in 2014, available at: http://docs.dpaq.de/8527-

The ontic dimension

The balancing principle rests on the understanding that the rights to be balanced are of equal value,

for example the right to privacy and the freedom of expression. This is the ontic status quo of the

offline world, in the other words the cornerstone of the balancing paradigm. There appears a

rhetorical consensus by key-players within the global human rights community that the rights online

are the same as offline, which would mean that the ontic cornerstone remains the same. Under

rhetorical consensus I mean exactly what the term suggests –the statement of sameness of right

online and offline has not been profoundly theoretically reasoned.

The UN Human Rights Committee has expressed in the General Comment no 34 to the ICCPR article

19 that paragraph 29 protects all forms of expression and the means of their dissemination, including

internet-based modes of expression10. Michael O’Flaherty as one of the key authors of Genera

Comment no 34 has explained that the standards for online media are the same as standards for

traditional media and that the UN Human Rights Committee clearly had this approach in mind11.

O’Flaherty does not provide a reasoning for this approach. The Council of Europe’s Committee of

Ministers has expressed the view that rights in the Internet are the same as offline12. This may

suffice here to make the case of the sameness of rights, albeit this doctrine of sameness of rights is

at this point seems vested upon the general idea of universality of fundamental rights.The Delfi

Grand Chamber judgment13 and subsequent “Hungarian” case14of the Strasbourg courtare built

upon the opinion that the standards do not differ online and offline, the court expressing it as

follows in the sections of preliminary remarks:

Defamatory and other types of clearly unlawful speech, including hate speech and

speech inciting violence, can be disseminated like never before, worldwide, in a

matter of seconds, and sometimes remain persistently available online. These two

9 Paragraph 2 of Article 29 of the International Covenant on Civil and Political Rights guarantees the right to freedom of expression, without explicitly mentioning Internet, since it was adopted in 1966. 10 General comment no. 34 to Article 19 (Freedoms of opinion and expression), of the International Covenant on Civil and Political Rights, adopted by the Human Rights Committee on its 102nd session in Geneva on 12 September 2011, para 12. 11 Michael O’Flaherty, Freedom of Expression: Article 19 of the International Covenant on Civil and Political Rights and the Human Rights Committee’s General Comment No 34, Human Rights Law Review 12 (2012), 627 - 654 12 “Internet users have the right to freedom of expression, including the right to receive and impart information, by using services, applications and devices of their choice, in full compliance with Article 10 of the Convention” (para 1) – see Appendix to Recommendation CM/Rec(2016)1 of the Committee of Ministers to member States on protecting and promoting the right to freedom of expression and the right to private life with regard to network neutrality,adopted by the Committee of Ministers on 13 January 2016, at the 124th meeting of the Ministers’ Deputies. 13Delfi v. Estonia (Grand Chamber), no 64569/09, 16 June 2015 14Magyar Tartalomszolgáltatók Egyesülete and Index.Hu ZRT v. Hungary, no 22947/13, 02 February 2016 – further in this article MTE v. Hungary

conflicting realities lie at the heart of this case. Bearing in mind the need to protect

the values underlying the Convention, and considering that the rights under Article

10 and 8 of the Convention deserve equal respect, a balance must be struck that

retains the essence of both rights15.

For the purposes of this article we consider that the doctrine of sameness of rights online and offline can be justifiable. This does not mean, however, that in order to achieve the ontic status quo of sameness, one right may not deserve more protection than another. There are contestations from both sides to the idea that freedom of expression and the right to privacy deserve equal protection online: some think that freedom of expression online deserves more protection, others that the right to privacy does.

The example of the preponderant need to protect the freedom of expression more is evident from

the UN General Assembly Resolution “The promotion, protection and enjoyment of human rights on

the Internet”16, which affirms in para 1 that “… the same rights that people have offline must also be

protected online, in particular freedom of expression …” In academic literature is argued, that the

various legislative initiatives create a mechanism which amounts to private censorship17, meaning

that such private censorship is a threat to freedom of expression. Pollicino and Romeo conclude that

in most European courts case-law, balancing is used to justify limiting the freedom of expression18,

implying that freedom of expression should be protected more.

From the other side, La Rue warns that activities in the Internet “ …can constitute violation of

Internet users’ right to privacy, and undermine people’s confidence and security on the Internet,

thus impeding the free flow of information and ideas online19.” Marsoof calls for privacy specific

legislation in the Internet20. Land predicts that without consideration of international human rights

law and values, governments and industry will drive towards standards on issues of privacy that are

inconsistent with and even undermine international human rights21.

These arguments mapped briefly above do not relate to the ontic aspect of the conflicting rights in

the Internet, but relate to thecapabilitiesand discursive practice of Internet intermediaries when

assessing content online.The distinction between the ontic and epistemic aspects is essential

15Delfi v. Estonia (Grand Chamber), para 110, MTE v. Hungary, para 59 16 UN Human Rights Council resolution A/HRC/32/L.20, adopted on 43rd meeting on 01 July 2016 17 Aleksandra Kuczerawy, Intermediary liability and freedom of expression: Recent developments in the EU notice and action initiative, Computer Law and Security Review 31 (2015), 46 - 56 18 Oreste Pollicino and Graziella Romeo, Concluding remarks: internet law, protection of fundamental rights and the role of constitutional adjudication, 234 – 251, in: The Internet and Constitutional Law: The protection of fundamental rights and constitutional adjudication in Europe (Oreste Pollicino and Graziella Romeo, editors), Routledge Research in Constitutional Law, 2016 19 La Rue report, para 82 20 Althaf Marsoof, Online Social Networking and the Right to Privacy: The Conflicting Rights of Privacy and Expression, International Journal of Law and Technology, Vol. 19, No. 2m 2011, 110 – 133 21 Molly Land, Toward an International Law of the Internet, volume 54 Harv. Int’l L.J. , no 2, summer 2013, 393 – 458, at 394

forclarity, and for concluding whether balancing is a justifiable method for resolving conflicts of

fundamental rights online. Ontic aspect is related to the matter whether the initial weight to the

conflicting rights is the same or not, and epistemic aspect is related to the matter how the balancing

is performed, that is also, whether during the balancing for some reason more weight is given by

implication to either side of the balancing scale. In the other words, whether during the process of

balancing the internet intermediaries are capable of achieving a correct or biased relation.

Convergence of these polarized viewpoints (e.g freedom of expression deserves more protection vis-

à-vis the right to privacy deserves) becomes possible if one develops a theory which sets the relation

of conflicting rights not on the same level, but realises the Internet vulnerability as an ontic

condition which faces anyone who enters the digital domain22. Internet vulnerability realizes that the

traditional means to protect one’s privacy, known from the offline world, cannot be effectively

realized or are considerably weakened in the digital realm. This is so because any information

published in the Internet can stay online forever and the time to react to violations of privacy is non-

existent afterinformation is published. These factors by default diminish the protection of privacy

online. The Internet Balancing Formula therefore proposes that internet vulnerability as an ontic

condition will lead to the shift in the initial relation between the conflicting rights before the

balancing exercise starts, eg the scale is set protect privacy if the relative weight of other factors

against one another would produce an ideal equilibrium.

The epistemic dimension

There are two main concerns related to the epistemic dimension of balancing online, which concern,

first, the way how information is gathered, and secondly, how it is assessed.

The concern related to the way how information is gathered is online-specific, that is, this concern

does not emerge in relation to the epistemic dimension of balancing offline. It is related to the

element of time. Within any framework of judicial balancing the courts have the luxury of utilizing

time as long as needed to reach a correct assessment of conflicting rights and establish a proper

balance. Conversely in the Internet, such luxury to disregard the element of time is non-existent, as

it would lead to non-effective, retrospective recognition that rights were violated and proper

balance not achieved. Effective balancing online depends on swift decision whether certain

information published overrides someone else’s concern about the intrusion into his or her private

domain.Here time is a different concern from the understanding that with the passage of time the

balance of interests may reverse, for example when processing personal data23. The shortness of

time for reasoned decision-making can easily lead to the rejection of the rationality of online

balancing after all. Here the Internet Balancing Formula becomes central, since it is a mathematical

formula with easily established input, leading to immediate conclusion which of the conflicting rights

22Martina Gillen states that the Internet vulnerability of users in cyberspace is an ontic condition, which has been down-played but should allow to lead to the protection of privacy. Martina Gillen, Human versus Inalienable Rights: Is there still a future for online protest in the Anonymous world? European Journal for Law and Technology, vol. 3, No 1, 2012 23Giovanni Sartor, The right to be forgotten: balancing interests in the flux of time, International Journal of Law and Information Technology, 2016, 24, 72 – 98, at 72

in the given circumstances should prevail. Currently the internet intermediaries use artificial

intelligence to assess easier cases and human intelligence to assess more complex situations. The

question how these different intelligences actually assess the cases leads us to the second main

concern –over arbitrariness.

The objection of arbitrariness raised against the balancing method in offline dimension is formulated

by Habermas: “Because there are no rational standards for this, weighing takes place either

arbitrarily or unreflectively, according to customary standards and hierarchies”24. Alexy’s response is

that the weight formula provides the rational standard. The objection of arbitrariness and the

response to this objection via a mathematical formula are applicable towards balancing in the online

dimension as well. Therefore, it is not necessary to address this more general matter here. The novel

objection against balancing in the Internet via private entities, related to the objection of

arbitrariness, is related to the lack of transparency. This objection involves the aspects of who is the

decision maker (artificial or human intelligence), which standards are applied and what is the

argumentation.

The Council of Europe has called that “Internet service providers should put in place appropriate,

clear, open and efficient procedures to respond within reasonable time limits to complaints from

Internet users alleging breaches of the principles included in the foregoing provisions …”25 The

United Nations “Calls upon all States to consider formulating, through transparent and inclusive

process with all stakeholders, and adopting national Internet-related public policies that have the

objective of universal access and enjoyment of human rights at their core.”26Similarly, La Rue “…

encourages corporations to establish clear and unambiguous terms of service in line with

international human rights norms and principles …”27 These examples may suffice to demonstrate

the concern about arbitrariness and lack of transparency.

The current discursive practices of the internet intermediaries when balancing conflicting fundamental rights are against the principle of transparency. It is an issue of capability – the online corporations simply are unable to provide reasoned decisions each time they have to balance conflicting rights, moreover, sometimes these arguments are not even in need of articulation. This limited capability to provide a transparent decision-making process is a factual reality. The practical response has been to make at least some information about the decision-making process publicly available - not in relation to individual cases but as a matter of principle. Two examples illustrate this. The Article 29 Data Protection Working Party adopted the guidelines on 26 November 201428 reflecting upon the CJEU Google judgment. The Working Party encourages the search engines to publish their own-delisting

24 Jürgen Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy (first publ. 1992), trans. William Rehg (Cambridge: Polity Press, 1996), 259 25Appendix to Recommendation CM/Rec(2016)1, para 6.1 26UN Human Rights Council resolution A/HRC/32/L.20, referred above, para 12 27 La Rue report, para 48 28 Available in the Internet at: http://www.dataprotection.ro/servlet/ViewDocument?id=1080

criteria and make detailed statistics available29. Google Advisory Council30 was established to formulate guidelines for the practical realization of the right to be forgotten. Although some experts suggested that Google should provide detailed explanations of its decisions, the recommendations limit the request for transparency for making guidelines publicly available and providing anonymized statistics31.

The Internet Balancing Formula can become a generic instrument to overcome the objections

related to arbitrariness and lack of transparency of private online balancing of fundamental rights.

Application of this formula overcomes the objection related to arbitrariness due to the reliance on

the same standard formula in all circumstances. The objection related to the lack of transparency is

avoidable by the knowledge of the internet users that the outcome of the balancing exercise

originated from the application of the formula. The assessment criteria used are provided by the

formula and the argumentation is a mathematical calculation. These replies to the objections justify

the Internet Balancing Formula, which in turn means that the outcome of solutions in individual

cases can claim correctness.

The Internet Balancing Formula

The assumptions

The Internet Balancing Formula (named hereafter the IBF) has to include sufficient degree of

flexibility, so that its input elements and their relation to one another can be altered in response to

the future changes in the digital environment. The capability to respond to the changes, which may

not be known today, allow to refer to the IBF as a living instrument of fundamental rights protection.

The current assumptions are the following. First, the mathematical formula of IBF should not enable

the blocking of information which is of vital importance for the whole nation. Secondly, the IBF is

inspired by the Weight Formula developed by Robert Alexy32, especially since the Weight Formula

has introduced mathematics as an ordering tool into human rights adjudication framework. Third,

the input elements of the IBF are based on the criteria usually identified by courts, especially the

European Court of Human Rights, for balancing conflicting rights offline, and on the additional

criteria due to the ontic and epistemic considerations inseparable from the online dimension of

human rights. Fourth, the IBF should allow application by everyone - in the other words, assigning

concrete value to different input elements should not require any professional legal training and

should be based on empirical experience.

29Ibid, page 10 30 The Advisory Council to Google in the Right to be Forgotten, published in 2014, available at: http://docs.dpaq.de/8527-report_of_the_advisory_committee_to_google_on_the_right_to_be_forgotten.pdf 31Ibid, page 21 32 Robert Alexy, “The Weight Formula”, in: Jerzy Stelmach, Bartosz Brożek, and Wojciech Załuski (eds.), Frontiers of the EconomicAnalysis of Law (Krakow: Jagiellonian University Press, 2007), 25

The IBF is a quotient of the relative numerical value of two fundamental rights – the numerical value

assigned as a result of input elements to right to privacy divided by the numerical value assigned to

freedom of expression as a result of input elements. Some numerical values are on the scale from

zero to one, some are on the scale from one to three, representing in the latter case the values of

light (numerical value 1), moderate (numerical value 2) and intense (numerical value 3) interference.

The explanation of the different scales will be provided below.

Current human rights global landscape has prohibited in absolute terms hate speech in the Internet,

including incitement to violence and any forms of hatred. It is sufficient to note for the purposes of

this article, that according to this established consensus balancing is precluded when hate speech

occurs. The availability or absence of concrete criteria to establish hate speech remains outside of

the focus of this article. Therefore, the IBF becomes applicable after the assertion of hate speech is

excluded. In the other words, step no 1 is to answer the question whether the matter concerns hate

speech. If not, then we proceed to step 2.

The right to privacy

The following elements make up the side of the right to privacy.

First, the element of Internet vulnerability, which has constant numerical value 1. This element is

represented by capitol letter “V”. It cannot be excluded, that if in the future the capabilities of digital

realm develop towards minimizing the consistent threat to privacy, this numerical value can

transform into one of a degree, or be eliminated.

Second, the element of interference into privacy. There is no abstract weight, but the numerical

value will depend on the intensity of the interference. Three level scale will be used, where the

intensity of interference can be assessed as “light” (numerical value 1), “moderate” (numerical value

2), and “intense” (numerical value 3). The weight of interference is this relative, dependent not on

the subjective perception of the person who alleges or might allege violation of privacy rights, but it

is of objective character, that is, the weight originates from the perception of a neutral onlooker. By

means of this scale, the second element of interference into the right to privacy will be determined,

represented by capitol’ letters “PR”, whereas the level of intensity is represented by small letter “x”

– designated to measure more significant elements - having the numerical value 1, 2 or 3. So far the

side of the right to privacy has the following mathematical formula: V (1) + PR (x).

Third, the element of time. This element is based on the assumption, unchallenged by courts33 and

academia34, that with the passage of time the interference into privacy by some information or

33For example, the Google judgment of the CJEU introduced the element of time in understanding “the right”, as time may change the relevance of information - Google Spain SL, Google Inc. Vs Agencia Espaoola de Protección de Datos (AEPD), Mario Costeja González, judgment of the CJEU from 13 May 2014, case no C-131/12, para 93 34Korehof and colleagues have devoted an entire essay to the exploration of the element of time in the context of the right to be forgotten. They conclude by stating that “Taking the passing of time

opinion will diminish, since the relevance of information or opinions decreases. The influence of time

upon balancing is a matter of degree, which calls for, at first sight, arbitrary assignment of numerical

value to the years which have passed. Time will be represented by capitol letter “T”, whereas the

level of intensity is represented by small letter “y” designated to measure less significant values 0,25

(passage of time more than 3 years and less than 7 years) and 0,5 (passage of time more than 7

years and less than 10 years) and 0,75 (passage of time more than 10 years and less than 13 years)

and 1 (passage of time more than 13 years). If less then 3 years have passed from the event subject

to balancing, the element of time will be 0. So far, the side of the right to privacy has the following

mathematical formula: V (1) + PR (x) + T (y).

Freedom of expression

The following elements will be entered into the side of freedom of expression.

First, the level of public interest in the subject matter, which, in the way it is published, raises

someone’s concern about intrusion into privacy. The numerical value will depend on the level of

public interest, which again is an objective criterion and not a subjective criterion through the eyes

of the person who claims realization of the freedom of expression. Public interest level is related to

the impact the respective information may have upon the recipients. Three level scale will be used,

the element of public interest will be represented by capitol’ letters “PI”, whereas the level of public

interest is represented by small letter “x” – designated to measure more significant elements -

having the numerical value 1, 2 or 3. Minor public interest (1) is the level of interest for local

community matter or of an issue where importance is time-sensitive, connected to particular event.

In the other words, the subject matter is limited by space and/or time. Medium public interest (2)

concerns matters of interest for larger communities, which may not have immediate direct impact

upon the lives of the majority. Significant public interest (3) concerns matters which are important

for the entire nation, or which may have direct effect upon the lives of the majority. For example, a

matter whether to reconstruct a community centre has public interest level 1, the ranking of

nation’s best public universities in international rankings has public interest level 2, but the

government proposal to introduce tuition fees in public universities instead of free education has

public interest level 3. The level of public interest may also be “0”, when, for example, the

publication of information or opinions serves the goal of curiosity satisfaction.

Objections against the Internet Balancing Formula from the aspect of justifiability of the numerical

value of intensity (intrusion into privacy or level of public interest) in the context of Alexy’s weight

formula transform in the digital domain due to the non-availability of the element of time, which is

into consideration can help assess the information landscape at issue for the RTBF and account for the changing values of information as it ages, establishing the balance all rights must find with other interests”. Paulan Korenhof, Jef Ausloos, Ivan Szekely, Meg Ambrose, Giovanni Sarto and Ronald Leenes, Timing the Right to be Forgotten: A Study into “Time” as a Factor in deciding About Retention or Erasure of Data, Part of the Law, Governance and Technology book series (LGTS volume 20), Springer 2014, 171 – 199, at 199

usually associated with the possibility to articulate reasons for deciding about intensity. In the

context of the weight formula, Alexy has countered the objections related to intuition35,

decisionism36 and arbitrariness37 with the argumentation thesis, which says, that the propositions

about intensity of interference and degrees of importance lend themselves to rational

justification38.Rational justification offline implies articulation, but not online, because of the

element of time, which requires immediate reaction. Therefore, the meaning of rational justification

regarding propositions about intensity and degrees of importance must be given online a narrow

interpretation. This means, that the usage of the scale and numerical value to identify intensity is by

itself a rational approach. The majority of neutral observers are likely to identify the level of intensity

of interference into privacy or the level of public interest on the three-level scale in the same way,

given that they have the same information to start with. The Internet Balancing Formula thus

assumes that the one who is making the assessment about the level of intensity belongs into this

group of majority. Even if she does not, it has to be assumed that the person’s (either physical or

artificial) overall approach is rational - assessment of various situations can be described via a curve,

be it platykurtic or normal or any other distribution, which means that the same curve would appear

in the assessment of colliding elements in the IBF. In this case the potential bias from distribution

would be cancelled out, because it is applied in the same way on both sides of the formula.

A separate line of research, calling perhaps for mixed methods approach using the quantitative and

qualitative methods in combination, which is not possible in this article, is to study whether the

results of rationality in the narrow and wide sense are by and large the same. Whether the

assessment about the levels of intensity reached by courts, formulated after the possibility to gain

more information and take time for consideration, are comparable to the ones reached by human

and/or artificial intelligence, which operate in the conditions of non-availability of time. In the event

of similarities, conclusions may be drawn for the process of judicial assessment. The opposite – the

similarities are absent or non-significant – does at the same time not lead to the rejection of the IBF,

since it does not claim overall correctness, but correctness at the given time when assessment had

to be conducted.

The element of level of public interest in the side of expression is thus represented by PI (x).

35Robert Alexy, A Theoryof ConstitutionalRights (n. 9 above), 82-4; see also Robert Alexy, A Theoryof LegalArgumentation (first publ. 1978), trans. Ruth Adler and Neil MacCormick (Oxford: Clarendon Press, 1989), 212 - 220. 36 Bernhard Schlink, “Freiheit durch Eingriffsabwehr – Rekonstruktion der klassischen Grundrechtsfunktion“, in: Europäische GRUNDRECHTE-Zeitschrift 11 (1984), 462. 37 Jürgen Habermas, Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy (first publ. 1992), trans. William Rehg (Cambridge: Polity Press, 1996), 259. 38 Robert Alexy, A Non-Positivistic Concept of Constitutional Rights, in: Human Rights and

Controversy About the Nature of Law - Susi, Mart; La Torre, Massimo; Niglia, Leone (editors), Edward

Elgar Publishing 2019 (forthcoming)

The second element is whether the information concerns a public figure. Capitol’ letters “PF” will be

used to represent this element. This is a significant element in the offline balancing of right to

privacy against freedom of expression according to established consensus, thereby the level of

public figure is represented by small letter “x” – the individual holding significant public power is

given numerical value “3”, the person who voluntarily has entered public domain is given the

numerical value “2” and the person who involuntarily appears in the public domain is given the

numerical value “1”. The majority of persons, when asked, would be able to assess, that the

government minister holds significant power, that the member of the parliament has voluntarily

entered the public domain, and the wife of a famous football player has involuntarily entered the

public domain. Case-law of European Court of Human Rights regarding the status of a public figure

can serve as a source of inspiration. The ITB on the side of freedom of expression so far is thus: PI (x)

+ PF (x).

The third element is related to the way how information was obtained. The rationale for this

element originates from the need for differentiation in the protection of freedom of expression

online depending on the origin of information. This element is represented by capitol’ letters “OI”.

Since its significance for the overall assessment is lighter, narrower scale of 0 to 0,75 will be used,

therefore small letter “y” is applicable. This element has a negative impact, therefore illegally

obtained information is represented by “-0,75”,information obtained in morally unacceptable yet

legally acceptable way is represented by “-0,5”, information obtained in morally questionable way is

represented by “-0,25”. The division between morally questionable and morally wrong criteria is that

of a degree and may change in time. The assessment regarding this division, which could be reached

by the majority of individuals in a group, represents the rational choice as manifestation of societal

values.The criterion of illegality in turn has objective character, which does not depend on the

opinion of the majority. The side of freedom of expression so far is: PI (x) + PF (x) - OI (y).

The aspect of empathy

All the elements above in relation to the right to privacy and freedom of expression can in principle

be assessed by human or artificial intelligence. It has to be assumed, that the majority of individual

decisions regarding online content in the present and foreseeable future are made by artificial

intelligence for major online companies. Smaller and medium online enterprises and citizen

journalists make these decisions by humans. It does not mean that the outcome would be irrational.

In order to retain the ‘human’ touch of online content assessment, the element of empathy will be

used in the IBF. Whereas the other elements are in principle subject to rational argumentation, the

numerical value of this element of ‘empathy’ is the result of moral evaluation of the colliding rights.

As far as known today, artificial intelligence is not yet capable of moral evaluation. This element of

empathy will thus guarantee, that the task of online assessment will not remain the exclusive

domain of artificial intelligence.

The element of empathy is represented by capitol letter “E”, and the relative maximum weight for

the whole formula is 1, with numerical values 0,25; 0,5; 0,75 and 1. Small letter “z” is used to signify

this value where the sum from both sides cannot exceed 1. This means, for example, that when for

privacy the element of empathy is set at 0,25 and for freedom of expression 0,75, then the

numerical value remaining from this element for privacy is 0,5.

The inclusion of empathy into assessment of colliding online rights is not compulsory and may occur

in two situations. First, when the quotient of the sum of elements of right to privacy divided by the

sum of elements related to freedom of expression is 1. Secondly, when the situation itself calls for

distinguishing it from comparable situations for certain moral reasons, primarily when the principle

of equality deserves derivation from due to some specific contextual reasons which may not be

connected to the collision at all.

The Internet Balancing Formula

The above input elements lead to the following formula:

V (1) + PR (x) + T (y) + E (z)

IBF =

PI (x) + PF (x) - OI (y) + E (z)

When the quotinent is larger than 1, the right to privacy prevails and the information in questions

should not be published or should be blocked. When the quotinent is smaller than one, the situation

is opposite, eg the freedom of expression prevails. This result produced by formula is not open for

future argumentation, as several input elements change in time and are dependent on the way how

something is assessed in a given context. This means, that when applied after some time due to

some new need, the IBF may produce a different result.

The interest in historical truth

The starting point of the application of the IBF, as explained above, is after the matter of hate

speech is excluded. The application of the IBF ends at the gates of historic truth. In the other words,

the IBF should not become, in principle, an instrument to block information about a matter which is

at the relevant time in a given society defined as historic truth. What is defined as interest in

historical truth may change in time, that is, there exists a threshold which allows to define interest in

some matter as interest in historical truth. La Rue has expressed the significance of historical truth in

the context of online realm as follows: “In the case of human rights, one of the fundamental

principles to eradicate impunity is to establish the truth of human rights violations when they exist,

and this is recognized as the right to truth of the victims and their families but also to society as a

whole to reconstruct historical memory, to memorialize the victims of the past.39 The purpose of this

39Google Advisory Council report, La Rue opinion, page 31

article is not to venture into exploration of the concept of historical truth, neither its contextual

dependence on concrete time and space. It suffices to note that, for the purposes of the IBF, this

formula becomes non-applicable once it has been established that the matter at hand concerns

historical truth. One can state, therefore, that the IBF as a mathematical formula is bordering from

one side at the concept of hate speech and from the other side at the concept of historical truth.

Testing the Internet Balancing Formula

In order to test the workability of the formula, the IBM is below applied towards two real-life cases

of the European Court of Human Rights: the Delfi case40 and the Egill Einarsson case41. I will also

apply this to two hypothetical cases.

The Delfi case

The case concerned anonymous comments posted in Estonia’s largest online news portal Delfi

concerning an article about the destruction - by the ferry company providing monopoly service - of

an ice road leading from the mainland to the largest island. About 20 comments were insulting

towards the main owner of the ferry company, a few among these were categorized as hate speech

by the ECtHR. On the basis of the comments constituting hate speech, the ECtHR established that

there was no violation of the freedom of expression when the online company was found to be in

breach of its obligation to safeguard privacy.

This is a situation where the IBF is not applicable due to the matter of hate speech. Had there been

no hate speech comments, the Court would have upheld the freedom of expression.

The IBF would indicate the following regarding comments not constituting hate speech.

From the side of privacy:

- Internet vulnerability as a constant value: V = 1; - Insult in relation to business operation – minor intrusion into privacy: PR = 1; - There was no issue of time, since the comments followed immediately: T = 0; - The owner of the enterprise would not most likely merit any empathy: E = 0.

From the side of freedom of expression:

- The matter of destruction of an ice road is significant for the whole state, but not essential for its well-being: PI = 2;

- The owner of a major enterprise is certainly a public figure: PF = 2; - The information was obtained legally: OI = 0; - And likely no empathy issue in relation to the matter from the side of expression as

well: E = 0.

40Supra note 13 41Egill Einarsson v. Iceland, no 24703/15, 07 November 2017

The outcome of the IBF for the Delfi case without the matter of hate speech would be:

V (1) + PR (1) + T (0) + E (0) = 2

IBF =

PI (2) + PF (2) - OI (0) + E (0) = 4

The IBF is 0,5, which means that the freedom of expression prevails. The conclusion of the IBF is the

same which the ECtHR would have reached, had there been no issue of hate speech.

Egill Einarsson case

The matter concerned the posting on Instagram comments towards Mr. Einarsson, alleging that he is

guilty of rape, after he had been acquitted by the court just a few days before. Mr. Einarsson sought

protection of privacy from Icelandic courts, but lost as these courts considered the comments to be

value judgments towards an individual, who himself through his communication with the public at

large had become a public figure. The IBF would produce the following result regarding the question

of posting comments on Instagram.

From the side of privacy:

- Internet vulnerability as a constant value: V = 1; - Calling someone a rapist against the judicially established facts is major intrusion

into privacy with the value: PR = 3; - There was no issue of time, since the comments followed immediately: T = 0; - Mr. Einarsson would not most likely merit any empathy: E = 0.

From the side of freedom of expression:

- The public interest regarding matters of violent crimes has to be assumed. At the same time, it is significant for the whole state, but not essential for its well-being: PI = 2;

- Mr. Einarsson had actively communicated with the public on his own initiative- therefore he was a public figure: PF = 2;

- The information was obtained legally: OI = 0; - And likely no empathy issue in relation to the matter from the side of expression as

well: E = 0.

The outcome of the IBF for the Einarsson case is:

V (1) + PR (3) + T (0) + E (0) = 4

IBF =

PI (2) + PF (2) - OI (0) + E (0) = 4

The IBF is 1, which means that the freedom of expression and right to privacy are equally protected

in the given situation. The European Court of Human Rights was not anonymous in the case: 5 out of

7 Chamber judges voted for the finding of the infringement of the right to privacy, while other 2

expressed in a dissenting opinion that the freedom of expression deserved more protection.

Hypothetical case of fatally ill prime minister admitting the country will go bankrupt soon

This is a hypothetical case, where a fatally ill Prime Minister of country X discussed with his Cabinet

the imminent perspective that the Government will be unable to pay out public salaries and meet

other financial commitments as of next month. After making the announcement, the PM instructs

the members of the Cabinet to keep this information secret at least for another two weeks. During

this instruction, the PM is hit by strong pain and he interrupts his instruction by mumbling “Here

comes the pain from the cancer again which means that I have not more than a few months to live”.

The Cabinet meeting is recorded. Journalist Y obtains against a bribe this recording and online media

enterprise considers whether to make the whole recording public. If to cut out the part where the

PM admits of having cancer and dying soon, the public may easily think that the media enterprise

conceals something. The main editor of the media enterprise now turns to the Internet Balancing

Formula for guidance.

From the side of protecting the privacy of the prime minister:

- Internet vulnerability as a constant value: V = 1; - Allowing the entire population to know that someone is dying on cancer is major

intrusion into privacy with the value: PR = 3; - There was no issue of time, since the publication of the recording would follow

immediately: T = 0; - The prime minister is deeply respected by the majority in the country, he is widely

seenas a person with high moral character, which could bring the empathy criterion to full: E = 1.

From the side of freedom of expression in relation to the publication of the recording:

- The matter of country’s possible bankruptcy is without doubt significant for the entire population and essential for its well-being: PI = 3;

- The prime minister is a public figure of significant power: PF = 3;

- The information was obtained illegally: OI = - 0,75; - The criterion of empathy is fully used for the side of privacy: E = 0.

The outcome of the IBF for the hypothetical case is:

V (1) + PR (3) + T (0) + E (1) = 5

IBF =

PI (3) + PF (3) - OI (0,75) + E (0) = 5,25

The IBF result is 0,95, which means that prime minister’s privacy is less protected. This reminds the

attentive reader of one of the assumptions presented above regarding the IBF – namely, this formula

should not become a tool to block information which is essentially important for the entire nation.

One can see that, with passage of time, the outcome may shift towards protecting privacy more.

After eight years the element of T at the privacy side would be 0,5, leading to outcome of 5,5 / 5,25

= 1,05, provided all other elements remain the same. Therefore, the online company would be

precluded from publishing the information, unless there is a strong argument that the interest in the

prime minister’s illness is an interest in historic truth.

Case of who would be the new authoritarian leader?

In August 1991, a political coup to overthrow Michael Gorbachev, the President of the Soviet Union,

failed. There are talks that plans were in place to put into key positions in the so-called soviet

republics new figures who would be extremely loyal to the coup leaders and perhaps take repressive

measures towards previous independence-minded local leaders and the intelligencia. Mr. Arnold

Rüütel was at that time one of the top leaders in Soviet Estonia, he later was elected President on

independent Estonia as well. It is believed that he knows who was supposed to become the new

leader if the coup was to succeed. In this hypothetical case Mr. Rüütel is giving an interview to online

media enterprise and when asked about this name, mentions Mrs. Z. This Mrs. Z. is unknown to the

public, she is in her 70s and living peacefully in a smaller town. The main editor of the media

enterprise now turns to the Internet Balancing Formula for guidance whether to publish this name.

From the side of protecting the privacy of Mrs. Z:

- Internet vulnerability as a constant value: V = 1; - Allowing the entire population to know that someone was supposed to become the

new leader of an oppressive regime is major intrusion into privacy with the value: PR = 3;

- The events referred to happened more than 25 years ago: T = 1;

- The aspect of empathy cannot be assessed for Z., since she is not known at all: E = 0.

From the side of freedom of expression in relation to the publication of the information about Z.:

- The matter is without doubt significant for the entire population: PI = 3; - Z. is not a public figure yet: PF = 0; - The information was obtained legally: OI = 0; - The criterion of empathy may be irrelevant: E = 0.

The outcome of the IBF for the hypothetical case is:

V (1) + PR (3) + T (1) + E (o) = 5

IBF =

PI (3) + PF (0) - OI (0) + E (0) = 3

The outcome of the IBF for this hypothetical case is 1,67, which means that the privacy of Z. clearly

calls for more protection. However, if this matter is considered to concern historic truth, then the

result of the IBF is not relevant.

Conclusion

The Internet Balancing Formula presented above is capable of maximizing in private online balancing

the element of transparency and minimizing arbitrariness. It is therefore a tool which brings

optimized order into the online dimension of conflicting fundamental rights. The formula can be

justified from ontic and epistemic perspectives, which means the ability to claim correctness in a

given time-space related context. It is a rational, mathematical and living instrument.

The practical application of the formula will depend on the willingness of stakeholders to abide by

the growing international consensus calling for clear standards and transparency in decisions

regarding online content assessment.

Research into the question whether the results reached by the formula would be close to the results

of judicial balancing may be of interest, but not inevitable for the formula’s application.