A collection of fragments of understanding in the pursuit of deeper questions.
Licra vs. Yahoo! A website hosted auctions for the sale of Nazi memorabilia, prohibited under French criminal law. First Amendment, because the sale of Nazi memorabilia is covered by the First Amendment protection. TGI Paris ordered Yahoo! To prevent access to the website from the French territory. Yahoo! challenged the injunction before US courts: jurisdiction of the French court is appropriate (purposeful availment). In addition to the first amendment there is no protection for expressions likely to pose a threat to other fundamental rights enshrined in Western constitutions. Forum shopping and regulatory arbitrage, the problem is the enforcement. The saga before the US Courts: a right to regulate freedom of expression from outside the US?
What does "Freedom of Expression" mean? The universalization of civil and political rights implies that the free expression rights formally cover all communicative activities by any single citizen. The "Declaration of the rights of man and of the Citizen" - France (1789) stated: "The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen ay, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of the freedom as shall be defined by law"
The Evolution of the Concept States have assumed a more active role in the regulation of free expression (e.g. audiovisual, communication, protection of pluralism). These regulatory schemes go beyond the original liberal idea of lack of state interference, putting in the hands of public institutions the task to create and foster the conditions for a fair and equal access to information by any citizen (pluralism). The digital era and especially the Internet have introduced new kinds of communicative instruments that have continued to change and decentralize the structure of the public sphere as well as the communications market. From State action to a Transnational/Global regulation?
From Atoms to Bits Absence of explicit provisions concerning freedom of expression on the Internet. A matter of balancing fundamental rights. Courts as "playmakers".
Worldwide Differences
U.S. Supreme Court. Supreme Court, Police Dept. of Chicago vs. Mosley, 408 U.S. 92 (1972) - Justice Thurgood Marshall: "The First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content... our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control". Freedom of speech is weighed with other interests such as public order and decency, national security, the rights to reputation, fair trial, ...
Standard of Judicial review:
Restriction to freedom of expression
Hate Speech Insults, slurs or epithets directed to someone within a certain group of people. Supreme Court, Beauharnais vs Illinois, 1952: libel and group libel are not covered under the First Amendment. Supreme Court, Brandenburg vs Ohio, 1969: KKK case, freedom of hate speech unless it is directed to producing an "imminent lawless action".
Reno vs ACLU (1997) The Communication Decency Act (1996) criminalized the online distribution of obscene or indecent materials to any person under 18. The Court ruled it unconstitutional. The restrictions were too vague and lacked the precision required to limit free speech: the concepts of "indecent" and "patently offensive" contents were not appropriately defined.
Ashcroft vs ACLU (2002) Attempt to regulate minors protection online: The Child Online Protection Act (1998). "Material harmful to minors", "any obscene material that, based on community standards, an average person would consider to appeal to a prurient interest". The Court ruled it unconstitutional. COPA failed to meet the standards required to circumscribe free speech limitations.
Ashcroft vs Free Speech Coalition (2002) The Child Pornography Prevention Act (1996) prohibited the diffusion of images that appeared to be minors engaged in sexual activity and any form of speech conveying the impression that the images represented minors involved in sexual conduct. The Court ruled it unconstitutional. The restrictions to the freedom of expression weredisproportionate and overbroad.
Historically, nations on the continent of Europe had a low level of protection for freedom of expression. Ù
Different levels of protection nowadays:
Art. 10 ECHR - Statement of principle (1). Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and idea without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
Art. 10 ECHR - Limitation to the freedom (2). The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in con dence, or for maintaining the authority and impartiality of the judiciary.
Interferences by public authorities are only allowed under the strict conditions that any restriction or sanction must:
No "Hate Speech" in ECHR Although there is no "hate speech" definition, the European Court of Human Rights has established some parameters.
Two approaches to ban hate speech:
Art. 11 EU Charter of Fundamental Rights Freedom of expression and information
Freedom of Expression in the Italian Constitution Art. 21 of the Italian Constitution A new Constitutional right. Applicable to all forms of communication. Only one express limit: Public Morality.
Other implicit limits to protect a different set of rights (e.g. reputation). ECTHR, Pravoye Delo and Shektel (2011) "The risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms is certainly higher than that posed by the press."
"Therefore, the policies governing reproduction of material from the printed media and the Internet may differ: the latter undeniably have to be adjusted according to the technology's specific features to secure the protection and promotion of the rights and freedoms concerned."
ECTHR, Delfi vs Estonia (2015) Imposing an online news portal to pay damages for having failed to promptly remove defamatory comments posted by anonymous users does not amount to a violation of right to freedom of expression entrusted to Art. 10 of the ECHR.
How would the CJEU have decided the case?
ECHTHR, MTE vs Hungary (2016) A violation of Article 10 of the ECHR had occurred through the imposition of liability on the applicant providers: no clearly unlawful speech.
A notice-and-take down system is sufficient for balancing the rights and interests of all those involved in a given intermediary liability dispute: while in *Delfi *this rule was found to be inapplicable, as the contested comments constituted hate speech, thus allowing to impose liability on internet news portals when they fail to take measures to remove clearly unlawful comments without delay, no such utterances were found to be at issue in *MTE, *making the imposition of a stricter standard unjustifiable.
CJEU, Scarlet (2010) and Netlog (2012) Protection of copyright must be balanced with:
Freedom of expression seems to play a secondary role compared to the right to data protection and the freedom to conduct business.
The European Approach As opposed to the US view, European courts took a restrictive approach. Freedom of expression enjoys protection as fundamental right "among the others" (non -- absolute right). A downgrading of the consideration attached to FoE in the non-digital environment.