On 12/14/22 at 9:13, the owner and CEO of Twitter Elon Musk Through his personal account, he published a new rule for the use of that social network, reporting that:
Any account that provides real-time location information of anyone will be suspended as it is a breach of physical security. This includes posting links to sites with real-time location information. Posting now where someone traveled with a slight delay isn’t a security issue, so that’s okay.
The same day, a little later, he tried to justify his decision, stating that:
Last night, the car carrying Lil X in Los Angeles was followed by a crazy stalker (thinking it was me), who then blocked the car’s movement and climbed on the hood. Legal action is being taken against Sweeney and the organizations that support the harm to my family.
Jack Sweeney is an American student and programmer who through special software tracked and obtained real-time information on the location of private planes belonging to famous people, all of which was reported through his Twitter account.
Elon Musk made the first interest payment on Twitter’s debt
The next day, alleging that practices of doxingthat is to say, intentionally and publicly reveal personal information about individuals or organizations – specifically that of Musk himself – the accounts of journalists from The New York Times, Washington Post, CNN, Voice of America and other publications were closed, based on the new rule adopted the previous day.
This decision was highly criticized by the media involved and even the speaker of the UN Secretary General, Stephane Dujarric In a press conference, he stated that:
“We are very upset by the arbitrary suspension of journalists’ accounts on Twitter. Journalistic voices cannot be silenced on a platform that alludes to being a space with freedom of expression“.
Trying to justify his resolution, Musk stated through his account that:
If someone posted real-time addresses and occasions of NYT reporters, the FBI would be investigating, there would be hearings on Capitol Hill, and Biden would give speeches about the end of democracy! ( 01:04 · 12/16/22).
Immediately on the same day, Musk will consider network users a survey referring to the duration of the cancellation of those accounts that “…duplicated my exact location in real time”; the alternatives were originally “now”, “tomorrow”, “seven days from now” and “more time”; then the options narrowed down to “now” and “in seven days.”
3,690,639 users voted from Twitter and the alternative “now” won with 58.7% of the votes; consequently, Musk tweeted that:
The people have spoken. Accounts that duplicated my location will now be unbanned. (2:18 · 12/17/22)
The problem to be clarified is whether the suspension of the use of Twitter accounts is legitimate and whether it raises conflicts personal or human rights.
What is Twitter?
Its own home page defines it as “a service that allows groups of friends, family, and co-workers to communicate and stay in touch through quick and frequent messages.”
Strictly speaking, it deals with a service that is described as microblogging — microblogging — or nanoblogging or microblogging, which allows its users to send and publish short messages, generally just text, similar to sending SMS.
In order to obtain a personal account on this network, it is necessary to fully agree, without reservation of any kind, to all the legal and operational conditions set forth.
Twitter is working on its own currency for the platform
In other words, between Twitter and its users, a free contractual relationship, of those canonically called “adhesion” or subject to the contractual clauses predisposed by the provider that impose the user to comply with certain Terms and conditions; For their part, users can terminate the contract without penalty at any time, simply by ceasing to use the services.
Indeed, Twitter does not provide a public service and provides its services in a highly competitive regime, at least in the West. Facebook/Meta, Instagram, Pinterest, Snapchat among others, are social networks that even exceed Twitter in number of users.
between the service provision conditionstacitly accepted by its users, it is established that:
We may suspend or terminate your account, or stop providing all or part of the Services, at any time for any or no reason, including, for example, if we reasonably believe: (i) that you have breached these Terms or the Twitter Rules and Policies or the Periscope Community Guidelines, (ii) that you cause us risk or potential legal liability; (iii) that your account should be terminated due to unlawful conduct; or (iv) that your account should be deleted due to prolonged inactivity; or (v) that providing the Services to you is no longer commercially viable (we own bold).
Twitter, Inc. is an American communications company headquartered in San Francisco, California; in its relationship with users residing in the US and in countries outside the European Union and the United Kingdom, the Terms of Service strengthening the jurisdiction of the federal or state courts of the San Francisco County, California, United States.
The law of the United States understands that freedom of contract is a part of the freedom of enterprise and both form an indelible part of the spirit of freedom that presides over the Union to such an extent that the contract clause is set forth in Section 10 of art. I of the Constitution of the United States.
Argentine legislation also contemplates the “binding effect” of contracts, by establishing in art. 959 of the Civil and Commercial Code that “…every valid contract entered into is mandatory…”
Therefore, it would seem that to the extent that the suspensions are based on the “Twitter Rules and Policies”that is to say, both the new and specific one notified by means of the Tweet of 12/14 as well as the generic one mentioned above, they would find their legal support precisely in the norms that protect the autonomy of the will in the execution of contracts: contracts are law between the parties and must be fulfilled.
However, this should point out that article 19 of the Declaration of Human Rights establishes that:
Everyone has the right to freedom of opinion and expression; This right includes the right not to be harassed because of their opinions, to investigate and receive information and opinions, and to disseminate them, without limiting borders, by any means of expression (bold font belongs to us).
Likewise, the American Declaration of the Rights and Duties of Man provides in its Article IV that “Every person has the right to freedom of investigation, opinion, and expression and dissemination of thought by any means.”
Although it is true that the companies that provide services such as those described have the power to establish the limits and conditions for their use in their virtual “territory”, it might seem that the suspensions ordered by Twitter would matter a little. breach of international agreements cited, posing a conflict between the right to apply the conditions of an accepted contract and the exercise of the right of freedom of expression, which entails the right to access information by network usersto the extent that the journalists affected by the suspensions cannot express their opinions within the scope of that Agora.
Now, within the framework of an honest discussion, and considering the motivations that Musk gave justifying the suspensions in which “…Last night, the car carrying Lil X in Los Angeles was followed by a crazy stalker (thinking it was me ), who then blocked the movement of the car and climbed on the hood….” It did not seem absurd to suggest that what that attempt to achieve is protect your own rights to security and privacywhich also enjoy equal recognition in the aforementioned Declaration of Human Rights, articles 3 and 12 respectively.
If what is involved is a conflict of rights (autonomy of will, security, privacy, freedom of expression, access to information), the solution could be given by establishing whether one of them is ontologically or axiologically superior to the other.
That is the view, among other authors, of Carlos Nino who, from a liberalism based on moral discourse, maintains the need to prioritize certain goods, those that give content to certain rights that the author considers fundamental.
German Bidart Campos is also a defender of the thesis of the staggered hierarchy of values, notwithstanding the difficulties that finding a fair solution can cause in some “difficult cases”, to use Dworkin’s language.
In this order of ideas, Bidart Campos recalls that, obviously, the right of a subject cannot be exercised at the expense of the right or rights of another or others and that a correct hermeneutic imposes correlations and concordances that are harmonizing.
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In this order, it would seem necessary to define whether or not the exercise of the suspension right exercised by Twitter was abusive; That is, whether or not the adopted measure has a real correlation with the eventual risk that Elon Musk or her family would run in relation to their personal safety or privacy.
On the other hand, although it is evident that the obligation to ensure the exercise of the right to freedom of expression and its correlate, the right to receive information and opinions, since it constitutes a recognized human right as such, is high on the heads of the States that recognize them as such either in their own Constitutions or in the international Treaties that they sign, the existence of the criterion followed, among others, by the professor at the University of Seville Vázquez Alonso, where it is argued that “the large Internet platforms could no longer be considered as mere private companies, but, in certain contexts, as forums of a public nature”; If this is true, they also affected being guarantees of the exercise of the aforementioned rights.
In this order of ideas, I think that rather than raising unproductive discussions regarding axiologically superior positions between conflicting rights, it would seem more interesting to propose the rational and non-abusive exercise of the same, in the terms of the harmony and coherence that Bidart Campos marks, in exchange for proposing ranges of priorities that, in general, may be contaminated by political ideology.
Just as there are no absolute rights, only in Schopenhauer’s pen is the will absolutely free and insatiable; in the real world and in the legal world, it is always subject to the limitations imposed by the rules of life in society; In order to arrive at rational conclusions, it is necessary to start from particular analyzes for each specific case and, especially, always seek the application of the wise Aristotelian phronēsis.
Lawyer.
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