Berdien B E van der Donk
JUR Juridisk Ph.d.-uddannelse
Karen Blixens Plads 16, 2300 København S, 6B Bygning 6B (Afsnit 3), Bygning: 6B-3-39
Berdien van der Donk is a PhD-fellow at the Centre for Private Governance (CEPRI), University of Copenhagen. She teaches EU Internet Law at Copenhagen Business School and works outside of academia as a legal analyst for trademark and domain name cases at Clarivate’s Darts-IP.
She was a visiting researcher at the Tilburg Institute for Law, Technology, and Society (TILT) at the University of Tilburg (2021), and the Centre for Research in History, Philosophy, and Sociology of Law and Computer Science (CIRSFID) at the University of Bologna (2022). She is a member of the Global Digital Human Rights Network (GDHRNET) and she participated in the Research Sprint on "Takedowns and Transparency: Global Norms, Regulation and the Nature of Online Information” hosted by the Berkman Klein Center for Internet & Society at Harvard University (2022).
Her research focuses on the invalidity of restrictive clauses in user terms on social media platforms, more specifically whether European platform users can claim the invalidity of a clause limiting access to (information on) a social media platform in a way that goes beyond what is prescribed by law. The research is two-folded and assesses the different legal orders applicable to user terms on social media platforms, as well as whether a discrepancy exists between the use of user terms by social media platforms as opposed to the use of user terms by non-platform actors in the EU’s Member States.
When the platform says no.
Resolving disputes on access restrictions through user terms on social media platforms in the European Union (preliminary title)
What happens if a large-scale social media platform (SMP) decides to block access to content in a way that goes beyond what is prescribed by law? Can a platform with more than three billion users decide that euthanasia equals suicide, and thus limit its dissemination? Would it matter if the content is blocked in a country where euthanasia is legal, such as Colombia, the Netherlands, or New Zealand? Well, in principle, the freedom to conduct a business in article 16 of the Charter, and the freedom of contract that is enclosed in the article’s scope, allows SMPs to freely draft their terms of service and to exclude whichever content they want. However, following an analysis of the CJEU’s case-law of the last 50 years, SMPs can only successfully invoke this freedom if a restriction to its user terms would mean the absolute end of the platform. That seems unlikely to be the case.
Since SMPs seemingly cannot invoke protection against restrictions on their freedom of contract, could the platforms’ users then, contrarily, claim the invalidity of user terms that restrict the access to legal content? SMPs must comply with the Unfair Contract Terms Directive (UCPD), and consequently, their user terms are invalid if they create a significant imbalance in parties’ rights and obligations to the detriment of the consumer (art. 3). Though, deciding whether a significant imbalance exist is easier said than done in a virtual environment, because the status quo without the user term is up for debate. Would the consumer, per default, have access to the platform? To find an answer, the access restrictions in the user terms of SMPs are compared to historical access restrictions related to non-platform actors.
My PhD project is two-folded: it assesses the different legal orders applicable to user terms on SMP addressing both the perspective of the platform and the platform’s users and, through comparative research, examines whether a discrepancy exists between access restrictions on SMPs and their offline equivalents. The project covers four Member States (DE, DK, IT, NL).
- Developments in internet criminality
- Digital enforcement (mainly IPR)
- (The effects of) automated content filtering
- The application of human rights in an online context