The AOL Huffington Post merger and bloggers' rights

The AOL Huffington Post merger and bloggers' rights

Angela Daly [1]

Cite as: Daly, A., 'The AOL Huffington Post merger and bloggers' rights', European Journal of Law and Technology, Vol. 3, No. 3, 2012

Abstract

This article examines the merger between AOL and the Huffington Post. The broader issues around the merger will be investigated, especially the implications for rights, in particularly free expression, and their conditions for exercise and actual exercise online. One major issue is that of the status of user-generated content and how the existing legal regime reflects the ethical concerns of users over how their content, data and information is used and commodified by the for-profit Internet intermediaries and platforms, especially when they start to merge and form concentrations. The extent to which the current legal regimes, especially human rights, deal with these problems in an adequate fashion will be assessed, along with the presentation of some suggestions of alternative approaches which may be more effective in practice.

1. Introduction

This article examines the AOL Huffington Post merger in 2011 and the context in which the merger took place, from the perspective of bloggers' rights. The merger's implications for the conceptualisation of blogging as an anti-media establishment practice will be discussed, alongside the general commodification and monetisation of online user-generated content by for-profit Internet platforms and intermediaries. Bloggers' rights are engaged by the free expression concerns from new media concentrations such as this one, while privacy and data protection issues are raised from the discussion of the law and ethics around what users put online, especially when they are engaging in 'free labour' (Terranova, 2000) like the Huffington Post bloggers. Whether the proposed right to a digital identity may prove more useful in this situation will be considered. The article will progress to an analysis of media freedoms and protections for bloggers in this environment and the interaction between free expression and corporate control of online platforms. Lastly, non- and extra-legal solutions to the issue of effective user control and autonomy online will be offered as alternatives to pursuing bloggers' rights via the legal channels.

2. Background

A prominent merger in the Internet world happened in early 2011, between Internet services and media company AOL, and the Huffington Post, an influential US-based independent news blog. The merger caused a major media stir at the time, especially given the Huffington Post's characterisation as politically 'left-leaning' in the US media landscape (which is often considered to have a right-wing bias, with critics pointing in particular to the dominance of Fox News), as well as its pioneering use of citizen journalism (a model increasingly followed by more 'traditional' media, such as the UK Guardian's 'Comment is Free' section in its online edition). This latest episode follows various high-profile acquisitions (yet often commercially unsuccessful) by AOL (such as social networking site Bebo) and its demerger from major media group Time Warner after a corporate 'marriage' of just eight years. [2] The merger of AOL and the Huffington Post took place without any intervention from competition and communications regulators.

The Huffington Post is essentially a large news and blogging website, which has offered access to articles on news coverage and comment on news stories from over 9000 bloggers, including its founder, Arianna Huffington herself, as well as a wide array of (predominantly American) politicians, academics, celebrities, policy experts and journalists. In addition to the bloggers, there has been an active online community following the Huffington Post, and commenting on its articles and blogposts. As mentioned above, the Huffington Post has enjoyed a reputation as 'left-leaning' in the content of its news and opinion, in contrast to 'traditional' US media which has tended to have a more right-wing bias, particularly television (Herman and Chomsky, 1988). Thus, prior to the merger, the Huffington Post could be characterised as an 'alternative' source of news and opinion both due to its form i.e. a blog comprising writers from various backgrounds and professions who may well not have found a platform in traditional media outlets, as well as being 'alternative' due to its content in presenting substantive points of view which differ from the those usually found, particularly in the US media, thus enhancing the plurality of available viewpoints circulating.

AOL is a long-standing Internet company, providing early online services from the 1980s onwards, and becoming an Internet Service Provider (ISP) initially in the US in the 1990s, when the Internet as is now known became publicly available. In the 2000s, AOL saw its subscriber base tail off, and it attempted to rebrand itself as more of an online content provider as opposed to an ISP, hence the (ultimately doomed) merger with Time Warner, the launch of various new services for users and several other smaller acquisitions, including recently the popular technology news and analysis blog TechCrunch. As a result of the merger between AOL and the Huffington Post, Arianna Huffington was appointed president and editor-in-chief of The Huffington Post Media Group, which oversees all Huffington Post and AOL content. The Huffington Post was criticised for this buyout by big business, given its 'left-liberal' placing on the political spectrum, as well as its use of blogging, especially posts coming from unpaid bloggers. Indeed, a lawsuit has been filed in the US District Court in New York on behalf of more than 9000 uncompensated bloggers, claiming $105 million in damages from the Huffington Post for using their material without payment (Peters, J, 2011).

3. Aftermath of the merger for blogging

The AOL Huffington Post merger represents a pivotal change in the perception of blogs and blogging with an impact much more profound than AOL's previous merger (and subsequent demerger) with Time Warner. There is a vast amount of literature on blogs (Rodzvilla, J, 2002; Gant, S, 2007; Kline and Burnstein, 2005; Kochan, D, 2006; Woan, S, 2008), as a new kind of citizen/participative journalism, and in particular one which bypasses traditional media structures and presents fresh news, ideas and points of view by new writers who are not necessary employees or owners of large media organisations. In addition, a real innovation of blogs is that they allow users to interact with news and opinion by posting comments or writing their own blog posts in response, thus enhancing users' free expression online, and representing a profound change from their position vis-à-vis 'old media' i.e. either passive TV viewers or radio listeners, or newspaper readers who may at most write a letter to the editor (whether it is published or not is a different matter). Indeed, as part of his more general discussion on 'social production', Benkler (2006) conceptualised this new means of disseminating information as a 'threat' to the traditional media establishment. [3]

Nevertheless, as mentioned above, newspapers have been integrating user-generated content into their online versions, and providing an editorial structure to organise this material. However the editors themselves have expressed doubts as to the added value such content brings and have somewhat acknowledged the 'threat' from user generated content in admitting that some of their motivations in including such material on their websites was to prevent their existing journalists from setting up independent blogs as well as wanting to jump on the blog bandwagon before they are left behind (Hermida and Thurman, 2008). Yet, as Balkin (2008, p. 115) points out (with foresight as regards the scenario under consideration), although new technologies and developments including blogging offer many more possibilities for normal citizens to exercise their right to free speech, 'they also make information and culture increasingly valuable commodities that can be bought and sold and exported to markets around the world', and he identifies this as 'the tension in twenty-first century free speech theory'. Indeed, the commodification of information about users and posted by users is a phenomenon extending beyond blogs and even user generated content - the operations of search engines and Google in particular have been criticised for collecting a vast amount of data about users using their service and the kind of searches they perform and then selling this data to advertisers which are then able to formulate adverts targeted at these same users of the search engine's services. Fuchs (2012) has termed this relationship between search engines and user data 'exploitative', especially since users receive no monetary gain for the sale of their privacy/digital identity, and what happens to this information and data is outwith their control.

Certainly, the AOL Huffington Post transaction shows that blogs are no threat to the corporate world and the ability of blogs, especially successful ones, to be co-opted by the more traditional media establishment, or at least by 'business models that seek to commodify knowledge and control its access and distribution' (Balkin, 2008, p.115). [4] Some blogs, then, are not so 'different' then to previous newsgathering and dissemination inasmuch as they can be easily commodified, corporatised and sold to major multinational companies. The Huffington Post is a very well-resourced and organised blog, which even before the merger had paid members of staff. Evidently there are a variety of blogs on the Internet, some actually already integrated into the websites of existing newspapers, as well as well-resourced stand-alone blogs such as the Huffington Post, with very simple personal blogs runs by one person or a small group of people using free platforms and requiring minimal resources. Interestingly, another category of bloggers has emerged from the recent litigation between Google and Oracle over patents, namely seemingly independent bloggers but who in fact have been paid or 'retained' by either party, including for work not directly related to the case at hand (Arthur, 2012). [5] The merger of the Huffington Post with AOL though shows that the category of well-resourced stand-alone blogs at least is available for integration into a more traditional media outlet or is sufficiently valuable that it merits being bought by a media corporation.

As far as free expression in the wake of the merger is concerned, it could certainly be classified as an archetypal example of Balkin's twenty-first century free speech tension, when a platform which enabled a much wider range of people to participate in the public sphere and have their voices heard was bought by a corporation that has for a long time commodified information online. However, one of the conditions of the merger was that Arianna Huffington was to retain editorial control over all content published on the Huffington Post site (and in fact in addition she gained editorial control over other parts of AOL's news and media content empire) and so in theory keeping this status quo ought not to result in any major change in the kind of material published on the site. In practice, since the merger there is no evidence of a seismic shift in Huffington Post content. Thus the merger does not seem to have in practice substantiated free speech concerns, but that may be due to the post-merger retention of the pre-merger editor. In any event, it demonstrates the paradoxical trend identified by Balkin of the simultaneous growth of participation and commodification regarding information, and consequently expression, online, as well as the use of user information without remuneration.

4. The law and ethics of not paying bloggers

A major criticism of the merger was the alleged injustice suffered by the hitherto unpaid bloggers (Hazen, 2011; Rutten, 2011), in providing their so-called 'slave labour' to a successful site such as the Huffington Post which instead of subverting the traditional capitalist media system in fact contributed to the high monetary value of the company, which was realised when it merged with AOL. Some of the unpaid bloggers after the merger gave their views on what had happened and their positions regarding the fact they received no part of the financial gains coming from it to a team from the Carsey Wolf Center Media Industries Project at the University of California, Santa Barbara (Fuller et al, 2011, pp.1-2). A large majority of the bloggers (96%) believed that their blogposts were 'equal or more valuable' than the contributions of the Huffington Post's paid staff, with over two-thirds (69%) saying that they should have a share in the $315 million that AOL paid for the Huffington Post. Nevertheless, the vast majority of the bloggers (92%) in the sample indicated that they would continue to write for the Huffington Post after the merger, which, if indeed representative of Huffington Post bloggers at large, may well contribute to consistency in the character of the Huffington Post's content post-merger, suggesting that there are no major free expression issues in practice associated with the merger (i.e. the corporate take-over of the Huffington Post has not in fact stifled the expression of its bloggers).

As regards the position of the bloggers themselves, they are however in something of a 'marriage of convenience' with platforms such as the Huffington Post: it is a useful means of gaining exposure for their work especially when they are relatively unknown, as well as for the Huffington Post itself to gain content for free or little cost. Indeed, the research from the Carsey Wolf Center Media Industries Project shows that about half of the sample intends to continue to contribute to the Huffington Post post-merger because of the benefits brought by this exposure of their work such as book sales and consulting jobs. Nevertheless, as mentioned above, bloggers seem aggrieved that they did not receive financial compensation for their work, to the extent a court challenge has been launched. At least at the time of writing, the Huffington Post's user agreement specifically includes an assertion of copyright over material submitted by users. [6] This would clearly attribute ownership to the Huffington Post and thus no right to compensation to the bloggers, and in posting material they accept this contractual term. In the end, the lawsuit against the Huffington Post by its unpaid bloggers mentioned above was eventually thrown out of court in 2012. It was held that the bloggers had already been compensated with visibility, promotion and distribution for their work and it was made clear to them from the outset that they would not receive payment for their blogposts. Thus their claim that the Huffington Post had been unjustly enriched at their expense failed and there were not awarded any monetary compensation from the proceeds of the merger.

Nevertheless, while the Huffington Post may not have acted illegally, the decision did recognise that the contributions from the unpaid bloggers were possibly the Huffington Post's most valuable content since they optimised the Huffington Post's ranking in search engines including Google, which in turn attracted more viewers to the site and they allowed the Huffington Post to keep its production costs low. Since the Huffington Post generates its income through advertising, presumably good articles from unpaid bloggers that attract more viewers are even more valuable to the Huffington Post. The profit that the Huffington Post makes due to the content these bloggers submit could be conceptualised as analogous to the 'exploitative' relationship Fuchs (2012) finds between search engines and their users regarding the users' data. However, one important difference is that from the beginning the Huffington Post was upfront and transparent about the fact the users would not be paid for their contributions to the site, while the situation with Google and its users has been more opaque regarding precisely how Google monetises user data. Nevertheless, the practice by online corporations of 'putting the means of production into the hands of the masses but witholding from those same masses any ownership over the product of their work' is widespread in Web 2.0, beyond Google search for instance and practised by Facebook, Twitter and YouTube to name but a few, and has been termed digital 'sharecropping' (Carr, N, 2006; McFedries, P, 2012).

However, as mentioned above, bloggers may well derive some indirect financial benefit from contributing to blogs such as the Huffington Post, rather than direct financial remuneration from the blog itself, as well as having a more or less guaranteed audience (which may not necessarily be the case if they published via their own blogs, especially if they were not already well-established writers), and this may well constitute sufficient compensation for their activity. The Huffington Post could be characterised as taking a risk on publishing the material of unknown bloggers who are not established journalists with a record of attracting many readers, and so could be totally morally justified in not paying for this material. In any event, this episode should constitute a warning to 'amateur' contributors of content to other online platforms; they should be aware of the possibility that their work may have generated value but that they may not control the entirety of this value (Andrejevic, 2011), which could be monetised in light of the Huffington Post example, and they may have no legal recourse at all regarding payment for work they have already freely placed on these sites.

As mentioned above, this is part of a wider issue about the control users have over the information they place online, whether deliberately in terms of uploading content such as blogposts, or indirectly through the data that is gathered about them and their preferences by services such as those of Google. Privacy and data protection, especially in Europe, go some way towards alleviating the consequences and ensuring that this information is not misused in a way which damages users' privacy or data protection (although it can be quite a narrow subset of user data i.e. that which is 'personal' or related to a user's 'private/family life' which is covered by these rights and legal regimes). Indeed, Monteleone (2012) looks at user control of information online in order to uphold these rights, and the extent to which these rights are insufficient and a new right to digital identity is required. The right to digital identity is a broader or fuller right along the lines of data protection and privacy, yet is more appropriate for the more advanced state of the current digital environment. However, in the case of content uploaded to the Internet which is not necessarily of a personal, sensitive nature such as that at hand, but which is potentially or actually lucrative and in which a large corporation is able to make a lot of money due to possessing this information, it is the right to free expression which falls short of facilitating full user control over this information. Something along the lines of full user control over the content may give more recognition to the hitherto unpaid contribution users make to the enrichment of large corporations, and give them more control as to if and how this enrichment should take place.

Free expression goes some way to facilitating user autonomy in terms of permitting the user to disseminate and receive information and express herself as she wishes, but takes a liberal view towards the ownership and control of information, as long as it does not interfere with this characterisation. Appeal could be made to the intellectual property regime to remedy this lacuna of control/ownership/autonomy, but as mentioned above in the case of the Huffington Post, the terms and conditions of web platforms, unless they are explicitly libre/open source, usually involve the user ceding intellectual property rights over the information uploaded to the web platform itself, in a non-negotiable standard contract, and the only rights that might remain with the original author are non-economic moral rights.

The liberal conception of human rights and other property rights does not adequately cover the situation of the economic 'exploitation' of users by for-profit web platforms, and does not give them much in the way of control over the information or their online autonomy. Users could look to publishing their work on non-profit platforms instead, or even on their own site as an alternative, but then the problem of visibility then comes into play, as well as resources (Fuchs, 2011). Although entry barriers in many Internet markets are considered to be low, the resources required for hosting information are not negligible, and of course the more and better resources available, the better the presentation and functioning of the site. Indeed, in some cases such as that of the market for search engines, the amount of data already collected by a successful site and the analysis of this data constitutes an entry barrier for new entrants into the market.

Otherwise, a more radical version of the proposed right to a digital identity may be useful, not merely as a shield against invasions of privacy, but also a sword against attempts to wrestle control from users, especially by for-profit corporations. However, if the right to a digital identity is not susceptible to such stretching, then users should turn to these other, technical, non-legal solutions in order to preserve their control and autonomy where the current legal protections fail them. This approach is definitely a speedier way in which users can assert their autonomy and control online since it does not require them to wait for the enactment of a new right, which may not for a number of reasons come to pass, and empowers them to act immediately to deal with threats to their data and information online. However, this approach may still face the aforementioned obstacle of sufficient resources, or at least enough to compete with the offerings of for-profit platforms, but this may prove a necessary trade-off in order to give users control over their online presence.

5. Consolidation, pluralism and expression online

Additionally, what may well be lurking in the shadows of this merger is the spectre of media pluralism, a concept from 'traditional' media regulation, and one which may have been thought to be obsolete in the context of the Internet, with its vast array of information and opinion available. However, as early as 2003, Gans (2003) observed that old media still remains 'dominant' on the Internet, despite the rise of 'participatory' journalism. The Huffington Post certainly did not start off life as an 'old media' entity; however, by the time of the merger, the research from the Carsey Wolf Center found that 'many of the most-read bloggers on HuffPo are former journalists' (Fuller et al, 2011, p.2), and certainly post-merger the site more closely resembles a traditional corporate media outlet.

Whilst Internet regulation in developed liberal democracies thus far has not concerned itself with matters of plurality per se, it is true that competition and communications regulators are increasingly turning their focus to issues of consolidation and anticompetitive behaviour in online markets. While mergers between Internet companies have usually been approved without conditions by regulators, [7] the European Commission is currently investigating alleged anticompetitive conduct of Internet search and advertising giant Google, which would seem to have a dominant position at least on the market for Internet search. The result of that investigation is still pending at the time of writing, but the very fact that Internet markets are being investigated for anticompetitive behaviour would suggest that there is at least the possibility of a single entity or group of entities dominating online markets in inter alia an economic fashion.

However, the concept of pluralism does not just concern economic pluralism; there is also a 'qualitative' element to it as well. In the old media context, particularly regarding broadcasting (television and radio), pluralism required not only a lack of economic concentration in these markets, but also that that a diversity of opinions or tastes/genres is represented on these mediums. One reason to have such an obligation over content was due to the scarcity of frequencies over which television and radio could be broadcast, which meant there was a limited number of channels, and thus a limited amount of material that could be broadcast at any one time. Broadly speaking the Internet does not suffer from this problem of scarcity of capacity, or at least not to the same extent as analogue television and radio did (although opponents of net neutrality may beg to differ, and the rise of mobile Internet may again put pressure on the availability of frequencies). This general availability of the capacity to send and receive information, and the huge diversity of content available on the Internet seemed to render the concept of pluralism wholly obsolete in this new environment.

Nevertheless, although it is not advocated here that now is the right time to introduce some sort of reworked enforceable regulatory concept of pluralism, the principle may well resurface as a theme in debate and policy in the coming years. However, it could be argued that pluralism remains more of a problem in the US, which could be thought of to have less (economic and qualitative) choice when it comes to the media landscape compared to Europe, which is considered to have more competitive markets for e.g. Internet service provision, less resistance to regulation of the media due to the absence of the strong First Amendment conception of free expression in the US, and in which public service broadcasters still possessing 'old media'-style mandates to ensure content plurality have made the transition to an Internet presence, with the British Broadcasting Corporation (BBC) being a prominent example especially for its online news coverage which also has a wide readership outside of the UK. Nevertheless, Internet corporations are often transnational, or at least many of the same corporations are operating within Europe and North America, and so a lack of plurality or competition in one jurisdiction may well have overflow effects in another in which the actors are based. In addition, there are parts of the Internet ecosystem in which the situation in Europe has been alleged to be less competitive/pluralistic than in the US, for instance regarding the market for Internet search, in which Google has a dominant position in Europe, whereas the US market for Internet search is considered to be more competitive, with Bing and Yahoo search having larger market shares and so more able to compete with Google. Thus, the issue of online plurality and competition, with the associated effects on free expression, concerns Europe as well as the US.

Furthermore, in addition to events on the Internet such as the vertical integration of supposedly 'alternative' blogs such as the Huffington Post with content and Internet service provider giants such as AOL, there are also developments in other areas, such as the desire (and practice) of such Internet Service Providers (ISPs) to 'manage' the information passing through their networks using deep packet inspection technology, which has given rise to the 'net neutrality' debate, as to whether ISPs should be allowed to manipulate or even block the information in transit. Some motivations for ISPs to do so are economic i.e. favouring the content of a vertically integrated subsidiary content provider over that of a competitor (which would constitute anticompetitive behaviour) but also 'ideological' e.g. blocking controversial (yet legal) content. The latter motivation evidently raises free expression concerns for users and content producers, and even the former could be also be conceptualised as posing an additional threat to free expression, especially if free expression is thought to include the right to access information. The more severe practice of blocking (as opposed to the 'mere' slowing down of information), regardless of the motivation for employing it, would seem to be an outright violation of free expression, absent a robust justification. Increased concentration on the Internet, especially vertically, increases the possibility and ease by which such discriminatory behaviour can happen. Indeed, AOL has been accused of engaging in non-net neutral behaviour, specifically in 2006 when it was alleged to have blocked its subscribers' access to emails containing a link to a website called DearAOL.com, which contained a petition against AOL's proposal to introduce a certified mail programme (Olsen, 2006). AOL claimed subsequently that the emails were blocked due to a 'software glitch' rather than admitting to a deliberate campaign against the site.

The merger with the Huffington Post prompted some debate about net neutrality, at least on the rhetorical level, since in the US the Huffington Post had prior to the merger been strongly in favour of the Federal Communications Commission (FCC) enacting enforceable net neutrality rules, while AOL had been considered anti-net neutrality, primarily due to its behaviour over blocking emails mentioned above. There has been speculation about the extent to which this may affect the Huffington Post's stance on the issue (McCann, 2011), and indeed, the Huffington Post last year published an article arguing against net neutrality rules (Ehrlich, 2011). Net neutrality is also an issue in Europe, where ISPs have also been found to be slowing or blocking specific kinds of Internet traffic, and policy has been developed on the issue at the European as well as domestic level in some Member States. [8] From the net neutrality debate, there are a few relevant points for the current discussion on consolidation, pluralism and free expression. Firstly, the claim is made from ISPs that there is scarcity of bandwidth in the network and so they must be allowed to act in a non-net neutral fashion in order to deal with problems of blockages, and by charging a premium to certain content providers, be able to raise funds in order to invest in better infrastructure with the hope of easing the problem of blockage. If there is indeed an issue over the scarcity of bandwidth, then this is reminiscent of the situation with broadcast media, since a limited amount of available channels justified media pluralism obligations. Furthermore, the vertical integration of Internet companies contributes to the problem of concentration, and the development of DPI allowing one part of a vertically integrated company to discriminate in favour of another part could entail that users lose more control over what information they receive on the Internet on the one hand, and again make an obligation of plurality depending on the intensity of this favouring seem appropriate again in this context. In addition, if a market, such as that for Internet provision is competitive, and there is demand from consumers for services which are net neutral, then a provider should respond to that demand; however, in markets which are more concentrated (which is usually the case with at least wholesale Internet provision markets, and sometimes also retail), if all of the few providers act in a non-net neutral way, then users have nowhere to turn. Thus, less competitive, more concentrated markets online have a corresponding effect on the conditions for pluralism and free expression, making such spheres less pluralistic and limiting the scope for free expression.

6. Implications for the conceptualisation of free expression and other relevance rights

6.1 Media freedoms and protections for blogs

When it comes to blogs, there is the issue as to whether the freedoms and protections (and corresponding responsibilities) of the 'old media' are also available to blogs and bloggers. Some blog platforms, such as the Huffington Post, with a substantive editorial role played by the site's administration, would seem to resemble print newspapers inasmuch as there are various contributors managed and vetted by an editorial team. Thus, it may be argued by analogy that similar rules and regulations should apply to them as for print newspapers, that the editors and writers should have the same rights and responsibilities as their offline counterparts. Such a move may be significant in protecting the freedom of expression and freedom of the press of such actors, and in avoiding similar uncertainty to that surrounding the right of online new media organisation WikiLeaks to publish the leaked US embassy cables in late 2010. [9] However, this is a two-edged sword, since in demanding the same protections that the traditional press has, such blogs may also be subject to the same responsibilities as print media, for example accuracy in reporting facts. Furthermore, the Huffington Post is at one extreme of the scale of type of blogs and blogging platforms as being a large, well-organised corporation; it may well still be highly inappropriate to equate all kinds of blogs and blogging platforms to print media especially those which are small, personal non-profit operations, and thus may not have the capacity to fulfil such regulatory obligations. Interestingly, an Oregon District Court recently decided that state legislation containing protections from litigation for the media did not apply to an individual blogger due to inter alia the fact she was not affiliated with any official media organisation (Chirgwin, 2011), which may show an emerging judicial tendency to distinguish between different types of bloggers for the purposes of media protections and privileges. Yet, since there are no official distinctions made between different types of blogs in law or regulation, as well as no official register of journalists in some jurisdictions, it may be difficult for a blogger to know what an official media organisations is, and whether the place she blogs constitutes one, in order to enjoy the protections and privileges of the media. Some jurisdictions such as the US at the federal level do not explicitly have a right to the freedom of the press, and instead what protections there are derived from the freedom of expression contained in this case in the First Amendment. In such instances, it would be difficult to see why, constitutionally speaking, bloggers should not enjoy the same rights as other parts of the more established media.

6.2 Free expression online and corporate control

The increasing consolidation on the Internet in both Europe and North America, particularly in a vertical direction as the AOL Huffington Post merger exemplifies, tied to the fact of Internet intermediaries being able to manipulate the information passing through their point of control, is concerning for the plurality and diversity of information being sent and received over the Internet, as well as for online free expression. The large Internet corporations have increasing power to determine what the average user sees and interacts with on the Internet, what happens to data about the user and information they place online, along with the ability to assert economic as well as cultural/ideological dominance over the medium. The fact that much user-generated content is uploaded to corporately-owned, for-profit websites also reduces some of the liberating aspect of this development, due to the aforementioned 'exploitation' of this content in order to provide revenue for the platform owners (Fuchs, 2011; Fuchs, 2012; Fuster Morell, 2011).

The traditional conception of freedom of expression in both Europe and the United States has been as a right enforceable against the Government's attempts to censor speech, and the formulation of the derived legal rights (Art 10 of the European Convention on Human Rights [ECHR] and the First Amendment to the US Constitution) has reflected this. However, the Internet context in the scenarios outlined above has involved private actors, often corporations, which prima facie do not have a general obligation to respect the freedom of expression of inter alia Internet users (indeed, in the US these actors, albeit not natural persons, may be entitled to exercise their own right to free expression). Although Art 10 of the ECHR has been found to have some positive, horizontal effect (for example, in Khurshid Mustafa and Tarzibachi), and in certain jurisdictions ECHR rights can be invoked in certain circumstances in disputes between private parties (such as in the United Kingdom due to the Human Rights Act 1998), under the ECHR apparatus itself corporations cannot be directly censured for their rights-infringing behaviour. [10]

This lack of formal human rights protection for Internet users vis-à-vis the private Internet actors which own and control much of the Internet apparatus (whether physical or virtual) in developed jurisdictions such as Europe has raised the issue of whether further law and regulation is appropriate in order to safeguard users' rights. Although there have been no serious proposals for a wide-ranging right to free expression for individuals, enforceable against online private actors, there have been some more specific suggestions for particular circumstances, for instance regarding net neutrality. The European Commission has been considering the net neutrality debate for the last few years since the conclusion of the 2009 Telecoms Package, and has championed an 'open and neutral Internet' (2011), but so far has made no formal commitments to that principle, such as forbidding non-net neutral behaviour (e.g. blocking content, prioritising certain types of data over others). Nevertheless, in individual Member States more progress has been made, in particular the Netherlands, where in June 2011 the Parliament voted to prohibit ISPs from restricting or charging users for specific services, making it the first country in Europe to mandate net neutrality (Van der Kroft, 2011). The explanatory memorandum accompanying the legislation explicitly stated that its aim was to maximise choice and freedom of expression for Internet users. [11] France may well be heading in a similar direction, with communications regulator ARCEP publishing its ten recommendations on net neutrality in 2010, the first of which provides some guarantee to Internet users to send and receive the information of their choice over networks such as the Internet.

Furthermore, leading human rights bodies have recognised these issues for online free expression. Indeed, the Council of Europe's Committee of Minsters issued a non-binding declaration on net neutrality in September 2010, committing itself to the principle based on freedom of expression considerations. Moreover, in May 2011 the Special Rapporteur to the UN Human Rights Council on the promotion and protection of the right to freedom of opinion and expression presented his report on free opinion and expression on the Internet (LaRue, 2011). He recognised that the importance of the Internet for individuals in realising their right to free expression, and recognised restrictions of that right in inter alia 'technical measures to prevent access to certain content, such as blocking and filtering' (at pp. 6-9). In concluding the report, he recommended that 'there should be as little restriction as possible to the flow of information via the Internet, except in few, exceptional, and limited circumstances prescribed by international human rights law' (at p. 19).

Yet, in the continuing absence of much in the way of robust free expression protection from international, European and national laws against private entities online, other options must be considered, such as joint civil society-corporate ventures. The Global Network Initiative is a prominent example, with major Internet companies Google, Yahoo and Microsoft among its members. It has a dual aim of preventing Internet censorship by authoritarian governments and protecting the privacy rights of Internet users. Participation in such projects is voluntary, but if members sign up to protect values such as free expression and actually do so, then it could be an effective interim solution for rights protection.

6.3 Beyond the law: alternative solutions to the inadequacies of rights for user control

As mentioned above in the more radical narrative outlined in the first part of this section on user control and autonomy over information online, the human rights in operation as well as economic rights are limited in how they can be deployed especially vis-a-vis corporate entities to facilitate full user control, including economic control, over the material they place online and the data they deliberately or inadvertently impart in using these services. The limits of free expression, privacy, data protection and intellectual property rights were exposed above, and it may be suggested in order to fully liberate users, either a new kind of right, such as a stretching of the current idea of a prospective right to digital identity to cover a much larger scope of management and control over a user's activities online.

However, in the meantime, users may wish to take matters into their own hands when it comes to content and information generated by them, and use non-legal methods of protecting themselves. This ideally would be the true Internet embodiments of Benkler's 'commons-based peer production initiatives' which are not-for-profit, non-hierarchical and do not assert traditional intellectual property rights over the content and information contained therein. In this way, users would be protecting their rights using a technical solution without having to wait for the legal structures to protect them instead. Examples of such technical solutions are the Diaspora social network which is open source, not-for-profit and is designed to permit users to retain ownership of their data, and WordPress, an open source blogging tool.

Nevertheless, as mentioned above, these initiatives can face problems in constituting adequate alternatives to their for-profit counterparts, mainly due to a relative lack of resources, which can have a knock-on effect on functionality and user experience. Thus users may have the difficult decision in trading control for comfort in terms of establishing an effective online presence and making good use of the free expression opportunities that the Internet and especially Web 2.0 gives with one hand, while its 'other hand' grabs at other aspects of their online autonomy.

7. Conclusion

There are a few main points that the above discussion of the AOL Huffington Post merger and its relationship to bloggers' rights has generated. Firstly, increasing consolidation online as exemplified by the AOL Huffington Post merger may reawaken the issue of media pluralism, especially coupled with the ability of ISPs to monitor and interfere with the flow of information in and between their networks. It can be seen that less competitive, more concentrated online markets, especially those that are vertically integrated, lessen pluralism and limit the scope for the exercise of free expression.

Secondly there is the issue of the commodification and monetisation of user-generated news and content by the for-profit media - rather than such user-generated news and content being a subversive force, it has been integrated into these capitalist structures. This suggests that new ways of generating news and content such as blogging are less different from old media methods than was once thought. Seen in the wider context, this commodification and monetisation form part of the general trend of financial exploitation of user data by the owners of for-profit internet intermediaries and platforms. Thus, amateur, unpaid contributors to such platforms ought to be aware that their content/data/information may be financially valuable but they may not be able to control this value. Furthermore, it is unclear which if any of the legal protections for traditional media may also be enjoyed by blogs and bloggers, especially if this form of content and news gathering and dissemination can be equated (positively and negatively) with or in fact is part of the functioning of traditional media outlets.

Thirdly, human rights such as free expression, data protection and privacy, intellectual property rights, and even a future right to a digital identity are insufficient to give users full control over the content/data/information they place or generate online. This is also due to the fact that there is a reduced protection of human rights vis-a-vis private entities such as Internet intermediaries and platforms compared to public/State bodies. Alternatives to relying on the incomplete legal manifestations of these rights which aim to provide more protection for users on the one hand can be self-regulatory joint civil society/corporate ventures, and on the other hand users themselves can build and use (commons-based peer produced) online platforms designed to preserve their privacy, autonomy and control.

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[1] Angela Daly is a PhD candidate in the Department of Law of the European University Institute in Florence, Italy. A version of this paper was presented along with Shara Monteleone at the Human Rights in the Digital Era conference at the University of Leeds on 16 September 2011

[2] Indeed, an uncharitable Guardian article termed AOL's acquisitions 'the kiss of death for the victim' (Kiss J, 2011).

[3] In fact, recent events (Arab Spring, UK student protests and riots, Mexican #YoSoy132 movement) seem to show that social production in the form of social networking sites such as Facebook and Twitter bear more of a 'threat' at least to the political establishment in both authoritarian, liberal democratic regimes, if not also the corporate establishment.

[4] If AOL can be termed as such - it may be an Internet company but is one which predates the participative Web 2.0 - a year is an epoch in the Internet context.

[5] The significance of this group of bloggers was that the trial court ordered their disclosure by Google and Oracle in order to ensure that the jury was not influenced by anything they read during the case.

[6] http.//www.huffingtonpost.com/terms.html

[7] With the MCI WorldCom merger in 1998 being a notable exception, since the US Department of Justice required MCI to divest its Internet business as a condition of clearing the merger. However, the US merger authorities in particular have been criticised for being too lenient with vertical measures, leading to large concentrations in technology and communications markets (Franken, 2012). Furthermore, the European Commission's non-horizontal merger guidelines have also been criticised as being too lenient on horizontal concentrations (Cave and Williams, 2011).

[8] At the time of writing, the ECJ had recently issued an important decision regarding the ISP filtering system ( Scarlet Extended/Belgacom Group v SABAM). In this case of 24 November 2011, the Court ruled that injunctions requiring ISP to use systems for filtering and blocking electronic communications are inconsistent with European law. The decision states that a fair balance should be struck between Intellectual Properties rights and other fundamental rights, among which the Court explicitly mentioned, privacy, free speech and freedom to conduct businesses.

[9] For more on WikiLeaks and its legal situation in publishing the leaked embassy cables, see Benkler (2011).

[10] Khursid Mustafa and Tarzibachi v Sweden [2008] (Application no. 23883/06)

[11] An unofficial English translation from Dutch is available here: https://www.bof.nl/2011/06/27/translations-of-key-dutch-internet-freedom-provisions/