Should we cancel “cancel culture”?

-- By JurriaanVanMil - 5 February 2019

This paper discusses the sensitive topic of sexually transgressive behaviour, and allegations thereof. This paper does not intend to discredit anyone’s feelings and story, but it nonetheless actively incorporates contingencies, such as “accusations”, “allegations” and “supposedly”, if the judiciary has yet to irrevocably rule on a matter. Moreover, the author apologies for any insensitivities from the outset.

1 Introduction

A Dutch television presenter and YouTuber? was recently “cancelled” because of his alleged sexually transgressive behaviour towards pubescents and teenagers. The women concerned disseminated their revelations via Twitter; their tweets gained traction quickly. BNNVara and RTL, Dutch television broadcasters, and the Red Cross’ chapter in the Netherlands promptly cut all ties with the celebrity. The celebrity responded to the accusations by issuing a statement in which he apologies for his behaviour, and he points out that not all allegations are true. The women concerned have yet to file a report with law enforcement; the celebrity has, however, already engaged an attorney-at-law. Time must tell whether the criminal investigations and subsequent proceedings will be instituted against the celebrity, and whether public opinion will allow him to prolong his fifteen minutes of fame. This paper analyses “cancel culture’s” implications under freedom of expression law, procedural criminal law, and tort law from a European perspective.

2 Backdrop: democratic empowerment via social media?

Social media is a double-edged sword. It can empower individuals and undergird fundamental rights by providing a forum for information exchange and participation, on the one hand. Recent instances and research, however, show that those possible pros do not come without cons. For instance, “fake news” and “filter bubbles” likely exist on social media platforms, such as Facebook. Additionally, such platforms can abuse users’ personal data to push them personalised advertisements, which can subsequently influence users’ decision-making in economic and political contexts. Again, this paper analyses cancel culture in the context of social media.

3 Problem: Cancel culture

Before analysing cancel culture’s legal implications, this paper first provides a conceptualisation of the phenomenon. It refers to Urban Dictionary, an online slang dictionary, in this regard, which describes it as:

“_A modern internet phenomenon where a person is ejected from influence or fame by questionable actions. It is caused by a critical mass of people who are quick to judge and slow to question. It is commonly caused by an accusation, whether that accusation has merit or not. […]._”

Boycotting is not a new phenomenon, and participating in cancel culture can even been seen as an expression of agency. The internet has, however, amplifies and exacerbates the morally questionable conduct of boycotting, calling out or cancelling: individual appear to quickly cancel whoever for whatever on the world-wide platforms that social media are. Furthermore, as this paper discusses in the following paragraph, cancel culture also has serious legal implications.

4 Framework: the legal implications of cancel culture

4.1 Freedom of expression law

Pursuant to the European Convention on Human Rights (*ECHR*), everyone has the right to freedom of expression, which also covers expressions that offend, shock and disturb. Furthermore, the allegations regarding the celebrity’s sexually transgressive behaviour likely contribute to the current public debate regarding the #MeToo movement and may, therefore, service the public interest. Besides, the celebrity can be subjected to more scrutiny if he indeed qualifies as a public figure.

The right to freedom of expression is, however, not absolute. In the present case, that right of the women concerned must be balanced against the celebrity’s right to privacy, among others. Furthermore, the exercise of the former human right is subject to duties and responsibilities. For instance, journalists must adhere to journalistic ethics and standards, and whistle-blowers must first disclose perceived wrongful conduct to competent authorities. The present accusations are severe, and it is unlikely that the women concerned conducted adequate due diligence before speaking out on Twitter. More importantly, the women have yet to file a report with law enforcement.

Could the women concerned have approached disclosing their experiences differently? For instance, Dutch news outlet NRC conducted adequate due diligence before publishing an investigatory report on the alleged sexually transgressive behaviour of a former Professor of Law of the University of Amsterdam, at least according to the Court of Appeals Arnhem-Leeuwarden.

4.2 Procedural criminal law

Cancel culture also has implications under procedural criminal law. The presumption of innocence, a principle of customary international law, prescribes that everyone has the right “to be presumed innocent until proven guilty”. Even though that principle operates in the context of adjudication, coverage in the media and on social media can have an impact on criminal cases. Caution is, therefore, needed. Again, the women concerned have yet to file a report with law enforcement. Moreover, cancel culture raises the question of how victims perceive justice. A recent study coined the term kaleidoscopic justice: “justice as a continually shifting pattern”. The study identifies several key justice themes, including consequences, which covers more than mere punitive action. Perhaps the design of established legal systems diverges from the perception of justice of victims of sexually transgressive behaviour, especially when the perpetrator is experiencing his fifteen minutes of fame. One of the women concerned stated that “it had to come out” (“_dit moest eruit_”).

4.3 Tort law

Lastly, cancel culture can lead to defamation lawsuits. In the present case, the allegations of sexually transgressive behaviour encroach upon the celebrity’ reputation. Companies which the celebrity used to work for quickly let him go once the controversial tweets went viral. Again, this paper raises the question of whether the women concerned could have approached disclosing their experiences differently. Besides, damages can be proper when the Dutch Public Prosecutor refrains from prosecution or the judiciary acquits the celebrity. Are the women concerned ware of the de jure tortious nature of their revelations, and of the possibility of subsequent civil law litigation?

5 Conclusion

By and large, cancel culture has serious legal implications. This paper does not propose a quick fix; the topic is very complex, and it easily concerns delicate and sensitive matters such as sexually transgressive behaviour. In correspondence with a central message of the course, this paper does stress the importance of making individual aware of their actions on social media and the (legal) consequences thereof through education. Education should be provided in multiple contexts, including: at home, by primary caregivers, and family and friends; at school, by teaching staff and – to some extent – peers; and on social media platforms, by the platforms themselves. Moreover, this paper stresses the need for further interdisciplinary research into social media ecosystems: why do people participate in cancel culture, and are they familiar with the legal implications thereof?

I don't know how it looks from where you sit, because this draft doesn't actually show you or your own personal ideas in the map it is drawing. From where I sit, however, it's a plea against irrevocable change. MLATs weren't some mechanism dreamed up in the primordial forests of Germanic folk-democracy. They too were diktats of the American Empire, meant to bring the bank secrecy of the hardy Swiss to heel, and in other respects to gratify the requirements of legal globalization. No doubt the Luxembourgeois could have done without them too, but they hadn't any choice then and they haven't any choice now.

It would be helpful if instead of vague reference to the shortcomings of the CLOUD Act, which are repeatedly mentioned but never actually described, you described them. In particular, why process requirements that "may go further than what international human rights obligations require" would be objectionable, and what this "may go further" actually boils down to. When governments are preparing to share the outcome of real-time mass surveillance with one another, using local and multi-national platform operators as their acquisition agents, why would arrangements no more sensitive to individual rights than the minimum global consensus be wrong to impose? Why are the agreements negotiated between governments under the CLOUD Act less bilateral than the ones negotiated between the same governments with respect to non-real-time data access, called MLATs? If you have personally been involved in either form of negotiation, it would be helpful to have the benefit of your personal observations and conclusions. If not, you might want to check the nature of your speculations against the experience of those who have.

The opposition between the CLOUD Act and data localization is evident and direct, but maybe a little less of each than appears at first sight. Certainly it is reasonable to assume that any state that manages to keep all the data concerning its own citizens within its borders will need fewer arrangements for gaining access to data stored elsewhere. But there will b e no such states, and no state's investigative and enforcement activities can be fully conducted without data located outside its borders. Data localization is evidently sub-optimal whether you are in the cloud IT business or you believe in human development and freedom. You can readily find public commentary by me and my law partner, Ms. Choudhary, making these points at least solemnly enough and probably too often. But the problem with MLATs is that their time-scale is archaic. The US government is hardly the only one that would like to make arrangements for real-time access to global data flows. Your assumption that "non-Western" governments will not be interested in CLOUD Act arrangements is demonstrably at odds with the current state of international diplomacy. So it might be more useful to discuss what the arrangements for multi-national real-time listening ought to be than to expect it can all be put back in the tube.

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