Aspects of Regulating Freedom of Expression on the Internet

Abstract

It is common knowledge that the internet has profoundly affected the manner in which people communicate, obtain information and express themselves. What is less explored is exactly how freedom of expression and the internet interact, and what may be the legal consequences of the special features of the new medium. The long-proposed idea of a virtual space of ultimate freedom, not subject to any regulation, is now virtually abandoned. The issue is no longer whether to regulate online behaviour, including expressive one, but how to do that in a manner observing to the greatest extent all competing interests. The present research aims at determining methods of analysis and criteria for recreating online a “fair balance” (to cite the European Court of Human Rights (ECHR)) between freedom of expression and other rights and interests involved. The focus is, therefore, on the human rights’ aspect of internet regulation, recommending the limits of such regulation in view of excessive effects on freedom of expression. The starting point for the research is not any specific feature of the internet, which is so diverse and vast that its analysis would be virtually unmanageable without specific criteria in mind. It started, rather, from the theory of harm, according to which freedom of expression can be limited only and to the extent in which it violates the rights of others. Analysing the legislation and court practice of several countries from this perspective in the three areas taken as an example (hate speech, adult speech and defamation), as well as the theory and case-law of the ECHR, the research identifies common reasons for limiting freedom of expression, described here as a “mechanism of harm”. The same analysis identified types of reaction to such mechanism of harm, named here as “response mechanism”. It is these elements which were looked for in analysing the internet, which proved a useful means of focusing only on those features of the medium which are truly relevant for determining the need and extent of limiting freedom of expression. The main result here is not so much the list of criteria for analysing the internet, which is an illustration and does not claim to be exhaustive, but rather the method of determining such criteria, which hopefully allows any future analysis and is not limited to the internet alone. Necessarily, the research deals with the most challenging property of the internet – its global nature and the resulting lack of a single legal system, and enforcement authority, to regulate the medium. The main conclusion here is that, rather than any technical feature of the internet, the only real obstacle to consistent regulation is the lack of a system of substantive norms regulating expressive behaviour online, resulting from the diverse legal and moral traditions in various communities, sometimes with opposite views on the same issue. Pending a global agreement, the criteria developed in the research may allow international and domestic courts to better deal with the subject of regulating cyberspeech.