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.
Berdien spent time as a visiting researcher at the Tilburg Institute for Law, Technology, and Society (TILT) at the University of Tilburg (2021, 2022), 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 current research focuses on the invalidity of restrictive clauses in user terms on social media platforms. For her PhD project, she developed a European common framework that addresses all types of access restrictions (on social media platforms), based on both an extensive comparative study of all case-law on physical and online access restrictions in four Member States (DE, DK, IT, NL) and a systematization of the plural legal orders applicable to social media platforms.
Previous publications cover copyright and trademark law, contract law, trade secrets, dynamic injunctions, and fundamental rights law.
Digital Bouncers: A European common framework for online access rights
What happens if a large-scale social media platform 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?
One of the ways to oppose a social media platform’s normative decision to restrict access is through must-carry claims: demanding a court to reinstate content that has been removed based on a social media platform’s normative decision. The discussion on these must-carry claims for social media platforms has been on the rise during the last years. In the United States, all must carry-claims to date have been unsuccessful due to platform’s protection under section 230. In Europe, however, the discussion on must-carry claims in the European Union is far from settled. The legal literature has solely addressed individual Member States or a comparison of the practice in an individual Member State and the practice in the United States. However, the discussions on the national Member States and recent case-law in Germany, Italy, and The Netherlands shows that the ‘European approach’ simply does not exist. Courts in the Member States have reached various diverging conclusions, leading to different implications for users and platforms in different Member States.
This dissertation demonstrates how various legal fields are involved in and applicable to different types of access restrictions on social media platforms. The main goal of this research is to clarify the interplay of European and national rules governing the user term-based relation between the user and the platform operator, and therewith, to contribute to the understanding of how the plural legal orders applicable to access restrictions of social media platforms interact, which laws safeguard users in which situations. The creation of a European common framework to address access restrictions paves the way for a discussion on the role social media platforms play in the creation of norms on the internet and allows for an answer to the question as to whether internet users in different European Member States have (equal) redress mechanisms to (re)claim access to a social media platform.
The research project is two-folded and addresses the practice of must-carry and reinstatement claims in the Member States of the European Union on the one hand, and the pluralism of legal orders that are applicable to the relationship between a social media platform and its users on the other. These two elements are inseparable: without the study of the practice in the Member States’ case-law, the different legal orders would not have drifted to the surface, whilst simultaneously, without the assessment of (mainly primary) European primary law, the practice in the Member States could not have been interpreted sufficiently clear. 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