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Nicolas Suzor

Publication Date

3-2012

Document Type

Article

Abstract

As online social spaces grow in importance, the complex relationship between users and the private providers of the platforms continues to raise increasingly difficult questions about legitimacy in online governance. This Article examines two issues that go to the core of legitimate governance in online communities: (1) how are rules enforced and punishments imposed, and (2) how should the law support legitimate governance and protect participants from the illegitimate exercise of power? Because the rules of online communities are generally backed by contractual terms of service, the imposition of punishment for the breach of internal rules exists in a difficult conceptual gap between criminal law and the predominantly compensatory remedies of contractual doctrine. When theorists have addressed the need for the rules of virtual communities to be enforced, a dichotomy has generally emerged between the appropriate role of criminal law for "real" crimes, and the private, internal resolution of "virtual" or "fantasy" crimes. In this structure, the punitive effect of internal measures is downplayed, and the harm that can be caused to participants by internal sanctions is systemically undervalued. At the same time, because the contractual framework does not adequately address punishment, providers are struggling to use various private law doctrines to achieve punitive ends when internal sanctions prove ineffective. This Article addresses this conceptual gap and provides a normative framework for enforcing community rules and imposing punishments for their breach based upon the values of the rule of law. ...

This Article traces a distinction between acts that are deemed to be wrongful by territorial states, acts that merely depict wrongful acts, and acts that are wrongful only when viewed through the interpretative framework of the norms of particular virtual communities. The first category of acts are already proscribed by the state and the second, in the vast majority of cases, should not be. The third category presents the most interesting questions. Enforcement by territorial states of these rules can be problematic-primarily because the virtual community lacks the legitimacy required to create rules whose breach is punishable by the full weight of the state. In the contractual framework, breach of these rules will only give rise to compensatory remedies; there is, accordingly, a fundamental tension between the justified reluctance of states to punish citizens for the breach of private rules and the need for virtual communities to be able to maintain order in situations where participants can avoid punishments for their wrongdoing.

This Article makes several normative arguments about how community rules should be enforced in a way that encourages both autonomy and legitimacy. Part II of this Article examines the way in which rules are enforced within virtual communities and what limits may be imposed on the imposition of internal punishments. I argue that the limits imposed by contractual doctrine should be read in a way that allow providers to enforce legitimate rules that accord with community norms but restrain the enforcement of rules that are not sufficiently promulgated, enforced, or consensual.

Part III examines how providers and participants are seeking to have internal rules enforced in territorial courts and highlights the quest for punishments that extend beyond the bounds of the community. This part considers the interplay between virtual community contracts and copyright, tort, and criminal law and suggests that these doctrines should not be used to impose effectively punitive sanctions for breach of consensual internal rules.

In Part IV, recognizing that providers will sometimes need the assistance of territorial states in enforcing community rules, this Article provides an argument for the use of equitable relief in a way that encourages both legitimacy and autonomy in community governance. This Article concludes that, while territorial states should not impose punitive sanctions for breach of community rules, equitable relief should be available to support legitimate community governance where internal sanctions are ineffective.

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