Consumers on Fyre: Influencer Marketing and Recent Reactions of the United States Federal Trade Commission

 

*Content re-posted from the Stanford-Vienna Transatlantic Technology Law Forum  – Transatlantic Antitrust and IPR Developments, Bimonthly Newsletter, Issue No. 3/2017 (June 12, 2017)

 

Social Media Disruptions

Silicon Valley continues to change our world. Technology-driven innovations that are disseminated with the help of the Internet have met with great success. This success translates into heaps of followers, as one can see in the case of platforms such as Facebook and Instagram. However, it is the followers themselves who continually affect the purposes of these platforms. A good example in this sense is Youtube; what started out as an alternative channel for the sharing of low-resolution home videos soon became a place where users could actually create their own content professionally. If well-received, this content leads to real Internet phenomena, and eventually become monetized, via direct or indirect advertising. Individuals around the world now have access to their own TV-stations where they can attract funders and actually make a good living out of running their channels.

Online content creation raises issues that are similar to those in the sharing economy (e.g. Uber, Airbnb, etc.). On the one hand, online platforms connect individual content providers with viewers, in the same peer-to-peer fashion that AirBnB connects an apartment owner and a tourist. Given the service-orientation of both activities, provided they are monetized, a clear issue emerges: when does an individual stop being a peer? In other words, what does it mean to be a consumer in this environment? Relatedly, what legal standards apply to the process of creating such content?

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When Historic Injustice Meets Tort Law: the Case of the Srebrenica Genocide

In July 1995, thousands of Muslim Bosniak men were deported from the enclave Srebrenica and subsequently killed by the Bosnian Serb army under the command of Ratko Mladić. The UN had declared Srebrenica a “safe area”, but the Dutchbat soldiers were not able to prevent the capturing and killing of the victims by the Bosnian Serb army. Years later, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Court of Justice (ICJ) ruled that the massacre constituted genocide.

Numerous investigations were carried out regarding what happened and why. The reports that were produced suggest that the highly ranked officers within the Royal Netherlands Army withheld evidence, and that the Dutch Ministry of Defense refused to take responsibility or blame for the massacre. And so the growing frustration of the relatives led to lawsuits against the UN, France, the Netherlands, and even an individual officer. Interestingly, Dutchbat soldiers are currently also preparing a claim against the State of the Netherlands.

In a groundbreaking decision in 2013, the Dutch Supreme Court upheld a Court of Appeal’s decision where the Netherlands was held liable for the death of a muslim Boasniak Dutchbat employee and two family members of a mulsim Bosniak UN translator. On 16 April 2014, the court of first instance held that the State was also responsible for the deportation of the 300 (at least) muslim men from the compound that was under the control of Dutchbat. Importantly, the court only held the State responsible for the victims who were deported from the compound – not for the ones who, for example, fled to the forest and who were captured by the Bosnian Serbs. Both the plaintiffs – the ‘Mothers of Srebrenica’ – and the State appealed the decision.

On 27 June 2017, the Court of Appeal held that those in charge of Dutchbat should have known as of 13 July 1995 that the men who were being transported (deported) from the compound were in real danger of being subjected to inhumane treatment. As a result, the State acted negligently by actively facilitating the deportation of those staying on the compound. Additionally, the court decided that the State was negligent for not having offered the option to the male refugees to stay on the compound. Because of this, at least according to the court, the refugees were withheld a 30 percent chance of not being exposed to inhumane treatment.

A combination of reasons explains how tort law can produce such outcomes. First, the individual protection paradigm requires a focus on the interests of individual plaintiffs (or groups of legally comparable plaintiffs). This is why the court distinguished between various types of victims (e.g. those who were on the compound on or after 13 July 1995, those who were not on the compound before or on that date) and different instances of negligence (e.g. facilitating the deportation, allowing men to leave the compound knowing there was a real danger of being subjected to inhumane treatment).

Second, tort law compares the situation the victim is in with the situation it would have been in had the wrong not occurred. Although the 30 percent number is arbitrary, the court does justifiably apply the ‘loss of a chance’ concept by considering that the fate might have been (but not necessarily would have been) different had Dutchbat taken other measures. There was a realistic chance that the compound would have been overtaken and the men would have been deported and possibly killed had Dutchbat offered resistance. Consequently, it is logical from a tort law perspective that the victims are not entitled to the full amount of damages.

Third, tort law defines wrongs and losses in a particular way. The damages that some of the plaintiffs will receive are damages for pain and suffering due to the inhumane treatment of their relatives. Awarding monetary compensation for pain and suffering is common in tort law. Relief that consists of obliging the State to take responsibility for its military decisions and for the State withholding information and evidence are, however, not. Such needs are not recognized as legally relevant interests and are consequently neither claimed by plaintiffs nor ordered by courts.

Cases like the Srebrenica case illustrate that tort law is not designed for repairing historic injustice like the Srebrenica genocide. Who was and was not on the compound at the ‘right’ time is to a large extent based on coincidence and consequently irrelevant from a plaintiff’s perspective, but highly relevant from a wrongdoer’s perspective, particularly concerning the amount of damages that would need to be paid if the number of those entitled to damages increase. Furthermore, it is unlikely that the plaintiffs were looking for a correct application of the concept of ‘loss of a chance’, or that they were in any way seeking to restore the situation had the wrong not occurred – no relief will make their relatives return or undo the pain and suffering. Instead, and as empirical research indicates, plaintiffs were likely to have been seeking recognition, an acknowledgment, information about what happened and why, and the opportunity to have a voice.

Repair of historical injustice calls for a different application of tort law, or perhaps a different tort law. However, an alternative that performs better at addressing victims’ and relatives’ needs while balancing their interests in a fair way is not readily available. Developing such an alternative would not only be a good research project, it could also improve the handling of claims involving historic injustice. Until then, plaintiffs will need to be explained why tort law can produce, for them, incomprehensible outcomes.

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Is a Facebook account inheritable under German law?

 

By Katja Zimmermann

 

For most of us, the use of Facebook has become a daily matter of course. But have you ever asked yourself what will happen to your account after you have passed away?

The pivot of the Facebook case is the tragic death of a 15-year-old girl in Berlin. Although it is known that her death was caused by a fatal collision with a train in a local metro station, the exact circumstances surrounding her death could not be revealed to date. It is thus uncertain whether the collision was the result of an accident or suicide. On the quest for answers, her parents tried to access her Facebook page. Although they possessed the required log-in details, which their daughter provided them with in exchange for their permission to use Facebook, their log-in attempt proved unsuccessful. This was due to the fact that their daughter’s Facebook page had been memorialized by one of her Facebook friends. It should not be forgotten that access to the account is not only vital for the processing of the loss. Connected herewith is a claim of compensation for non-pecuniary damages and loss of salary that was put forward by the metro driver; a claim that is based on the assumption that the girl committed suicide and thus acted negligently towards him. Nevertheless, Facebook has rejected all requests by the parents to unlock the account. Therefore, the parents began court proceedings against Facebook to demand access to the account on the basis of succession law. The court was thus confronted with the question whether a Facebook account is inheritable.

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Comparative Legal History: It is Time to Speak of an Autonomous Discipline?

 

By Agustín Parise

Comparative legal history can be deemed an autonomous discipline, even when legal history and comparative law are its two interrelated building blocks. Already in the nineteenth century, Édouard Lambert acted both as a legal historian and as a comparatist in France; while, in Spain, Rafael Altamira advocated for the teaching of foreign history and comparative legislation. In Italy, since the second half of the twentieth century, Rodolfo Sacco has averred that “the comparative perspective is historical par excellence.” These bi-dimensional studies no longer belong exclusively to the domain of comparative law or legal history. Researchers who follow the comparative legal historical path can claim independence from the two building blocks.

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A Book on Legal Books at the Dawn of the Digital Age (and its Price)

 

By J. (Pim) Oosterhuis

Half a year ago, The Formation and Transmission of Western Legal Culture – 150 Books that Made the Law in the Age of Printing came out with Springer (http://www.springer.com/la/book/9783319455648), the fruit of an ambitious project on legal books in the age of printing. The appeal of the work is that it not only contains entries on 150 groundbreaking legal books, but also introductory essays placing developments in context. Three periods are distinguished, namely Law Books During the Transition from Late-Medieval to Early-Modern Legal Scholarship (chapter 2), Legal Books in the Early Modern Western World (chapter 3) and Law Books in the Modern Western World: Nineteenth and Twentieth Centuries (chapter 4).

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Is there such a thing as ‘European Private Law’?

 

By Professor Jaap C. Hage

Is there such a thing as ‘European private law’? In my opinion there is not, just as there is no Dutch, French, English, or Chinese private law. Let me explain. Legal rules, including rules of private law, have many characteristics. They have a content, a scope, many of them were created by some agent, and many of them are applied and enforced by law-enforcing agents, with a prominent role for the judiciary. None of these characteristics can be used to classify some legal rules as rules of European private law.

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