PhD thesis: digital constitutionalism and the role of the rule of law in the governance of virtual communities

My PhD thesis is available here: Digital constitutionalism and the role of the rule of law in virtual communities.

Abstract:

This thesis considers one main question: how should we regulate the exercise of private governance power in virtual communities? This question centres on the legitimacy of governance in the way that community norms are created and enforced. This is the project of digital constitutionalism, which seeks to articulate a set of limits on private power that will best encourage innovation and autonomy and simultaneously protect the legitimate interests of participants in these increasingly important spaces. In answering this question, I provide a normative framework based upon the broad ideals of the rule of law through which to conceptualise the tensions about governance that arise in virtual communities.

The rule of law framework provides a constitutional discourse through which to examine the structure and practice of power relations in virtual communities. The standard model for conceptualising disputes between participants and providers of virtual communities has so far generally been based upon a classical model of contractual relations, and this has been supported by normative claims for a hands-off regulatory approach. This contractual governance model slowly replaces the law of the state with the private rules of the providers of virtual communities which mostly do not carry the same expectations of legitimacy. As this process continues over an increasingly wide range of human activity, there is a very real threat that the constitutional principles that we value begin to fade in relevance, leaving participants vulnerable to abuses of power in online spaces.

The contours of private law — and particularly contract law — provide the limits of permissible and legitimate private governance in these communities. The legal framework provides constant support and shapes the boundaries of internal governance. The rule of law legitimises governance in two senses here — it provides justification for the exercise of private power, but it also restrains the exercise of that power to make it more transparent, impartial, and fair. It is for these reasons that the bounds of the legal framework are critically important for the practise of governance; internal governance proceeds entirely in the shadow of the law, and the shape of the law changes the shape of the legitimate, permissible, and conceivable exercise of private power.

This thesis examines the flexibility in private law and argues that modern contractual doctrine should be informed by the values of the rule of law in order to provide a suitable regulatory framework that protects participants from abuses of power whilst remaining sensitive to the need to encourage innovation and investment in the development of virtual communities. This thesis provides a normative argument for the development of contractual doctrine and the exercise of judicial discretion in the resolution of disputes between participants and providers in a way that more accurately addresses the tensions of ongoing community governance. These disputes arise predominantly when either a participant or the provider seeks to enforce the rules of the community against the other; I focus, accordingly, on the way in which territorial states ought to support and limit the enforcement of community norms. I argue that the flexibility in the contractual framework should be exercised in a manner informed by the values of the rule of law. As a primary principle, this suggests that we should introduce appropriate limits on the contractual discretion of a provider to impose penalties and suspend or terminate a participant’s access to the community in line with the norms of the community. Additionally, I argue that providers should, in certain cases, be prevented from relying on contractual clauses that prevent participants from enforcing the rules.

In order to allow a contractual framework to be used to regulate governance in virtual communities, it must develop to more adequately conceptualise the role of punishment in the enforcement of community norms. Rule of law values suggest that these internal wrongs lack the requisite legitimacy to be directly enforceable and punishable by territorial law. This thesis accordingly argues that acts that are not recognisable as wrongs by the state but are only wrongs when viewed through the interpretative framework of community norms ought not to be punishable in territorial courts. It follows that criminal penalties are inappropriate for breach of internal norms, and also that civil remedies that have the practical effect of imposing penalties, like those available under copyright law and computer trespass torts and statutes, should not be available to fulfil a punitive function for breach of internal rules.

Rule of law values, however, also suggest that many virtual communities need the ability to impose punishments to maintain order within the community. I argue, accordingly, that the contractual framework must support the imposition of internal penalties where participants are able to avoid internal punishment, in addition to providing compensatory remedies to recover losses sustained through breaches of the rules. If the contractual framework is to be effective in fulfilling this role, I argue that we must further develop equitable remedies under contract law — specific performance and injunctive relief — to empower communities to enforce their own rules where they would otherwise be unable to. In providing the support that community governance requires, however, we must be extremely careful to differentiate between legitimate rules and enforcement mechanisms and illegitimate ones; both equitable and contractual remedies should accordingly only be available where the rules are clear, well promulgated, accepted and understood by the community, and applied in a fair and just manner.

This thesis concludes by examining the limits of the contractual governance framework, particularly the lack of privity between participants and other participants, and between participants or providers and external actors. The ability of courts to properly address disputes that arise outside of the contractual relationship between a participant and the provider depends predominantly on the evolution of other private law doctrines and the intersection of those doctrines with contract. For wrongs that are recognisable by territorial states, the contract provides an indicia of community norms, which delineate the scope of consent. Participants are accordingly able to enforce their rights in tort or other civil law actions against other participants with reference to the community norms, without necessarily relying on contractual remedies. Rule of law values also suggest that a provider may be liable, in some circumstances, for failing to enforce the rules of the community and, in addition, third party beneficiary doctrine will allow contractual enforcement in a limited but important set of circumstances. Nevertheless, some gaps exist, and participants within virtual communities may need assistance in order to enforce community norms within these gaps.

This thesis concludes that classical contractual doctrines provide an alienating and ill-fitting regulatory framework for virtual community governance, but that it can be significantly ameliorated through a conceptual framework provided by the values of the rule of law. The core problem is largely that community governance involves a set of constitutional tensions that are not able to be recognised in the standard contractual framework. If a contractual framework is to be used to regulate virtual communities, then, it follows that constitutional principles, and particularly rule of law values, ought to be used to inform the application and development of doctrine. If governance tensions can be assessed and addressed through a rule of law framework, then these private law forms may be able to provide a satisfactory approach to the regulation of private governance.