This volume addresses contemporary challenges, enabled by modern technology, that concern upholding freedom of speech where it conflicts with social rights, such as respect for private and family life, and with economic rights, such as the freedom to conduct business or the right to free movement.
In today’s networked world, technological shifts happen faster than most people even realize. Some of these shifts have made us all potentially powerful: media powerful. We used to sit in silence in front of newspapers and TV screens, and the world was explained to us by just a few sources. Today, thanks to the Internet, social media, and Web 2.0, we can not only share our own thoughts with everyone in a more self-determined way, but we can also take part in public debate and even co-shape it ourselves. Of course, the Internet is not a counter-design to the communication (power) structures of the past. Gains in communicative self-determination are threatened due to algorithmisation, platformisation, and value extraction from self-created private markets.
At the same time, the empowerment of the individual challenges the old “grand speakers” who are suddenly detecting “fake news”, echo chambers, and filter bubbles everywhere on the Internet. Internet-based communication allegedly hinders us from the “one truth”; as if newspaper hoaxes, propaganda, and narrow-mindedness were an invention of the Internet. The current heated debate over “fake news”, copyright, and “upload filters” shows that we are unsure of how to deal with the newer and more complex phenomena of Internet-based speech. This is due in no small part to the fact that an important benchmark – our constitutional compass – is still firmly rooted in the past. Constitutions change far more slowly than technologies. Societal changes can drive constitutional changes; but what about normative content control?
Today, there are already demands for “old-school clarity”: truth filters on social media platforms, horrendous sums of liability for platforms that encourage (overly)thorough cleaning up. However, it is equally true that private individuals “regulate”: they decide what is found on the Internet and who may post on a given platform. Accounting for all interests at play and striking a “fair” balance that avoids both a public and private over- and under-regulation is a complex matter. The authors of this volume not only provide reflections in their highly topical contributions, but also share their understanding of what constitutes a fair balance within the larger frame of freedom of speech in a digital age.
Author(s): Steffen Hindelang, Andreas Moberg
Publisher: Springer
Year: 2022
Language: English
Pages: 265
City: Cham
Preface
Contents
Introduction
1 Constitutional Challenges Protecting the Freedom of Speech After the Technology Shift
2 Regulating Freedom of Speech After the Technology Shift
3 Indirect Regulation for the Protection of the Freedom of Speech
Part I: Constitutional Challenges Protecting the Freedom of Speech After the Technology Shift
The Impact of the New Mediators of the Digital Age on Freedom of Speech
1 Introduction
2 The Context of Freedom of Speech in the Digital Society
3 Tech Companies as New Mediators in Communication Processes
4 Narratives Based on False Facts or Alternative Realities
5 Configuration of the Algorithms by the New Mediators
6 Freedom of Speech in the Different Communicative Contexts: Political, Economic and Technological
7 Conclusions
References
The Freedom to Conduct a Business as a Counterargument to Limit Platform Users´ Freedom of Expression
1 House Rules: The Ability to Draft and Enforce Them All
2 Picking Sides: Differentiating Between Articles 16 and 17
2.1 Discussion on the (Necessity of a) Differentiation
2.1.1 Arguments Against a Distinction Between Article 16 and Article 17
2.1.2 Arguments in Favour of a Distinction Between Article 16 and Article 17
2.2 Telling the Two Rights Apart
2.2.1 The Material Scope of the `Freedom to Conduct a Business´ in Article 16
2.2.1.1 The Essence of the Freedom to Exercise an Economic Activity
2.2.1.2 The Essence of the Freedom of Contract
2.2.2 The Essence of the `Right to Property´ in Article 17
2.2.3 Conclusion on the Differences Between Property and Conducting a Business
3 Running a Platform: Property or Conducting a Business?
4 Defining the Scope: A Closer Look at the Freedom to Conduct a Business
4.1 General Interest and/or Protecting the Rights and Freedoms of Others
4.2 The Measure Must Be Necessary
4.3 Limitations to House Rule Drafting
4.3.1 Comparing Restrictiveness: The Unfairness Test of the UCTD
4.3.2 Is a Less Restrictive Alternative Available?
5 Concluding Remarks: Restrictions Are Permissible, But Will They Solve the Problem?
References
Internet Platforms and Freedom of Expression in Constitution-Making
1 Introduction
2 Internet Platforms and Constitutional Freedom of Expression
3 Constitution-Making and Internet Platforms
3.1 Post-2008 Constitutional Reform: Case Selection and Methodology
3.2 Iceland
3.3 Ireland
3.4 Norway
4 Analysis/Lessons Learned
4.1 Digital Constitutionalism, or Lack Thereof
4.2 The Power of Private Intermediaries
4.3 The Impact of International and Comparative Law
4.4 Time
5 Conclusion
References
Part II: Regulating Freedom of Speech After the Technology Shift
Let the Robot Speak! AI-Generated Speech and Freedom of Expression
1 Machines That Create New Utterances
2 Does ML-Generated Speech Fall Under the Protective Scope of Freedom of Expression (Article 10 ECHR)? A Juxtaposition with th...
3 Limitations: Legitimate Interferences in the Freedom to Machine-Generated Expression
3.1 Is ML-Generated Speech Less Limited by the Rights of Others than Human-Generated Speech?
3.2 ML-Generated Content: Normative Grey Zones for Freedom of Expression?
3.2.1 ML-Generated Child Pornography
3.2.2 ML-Generated Fake News
3.3 Catch Me If You Can! The Arms Race Between Automated Filters and ML-Generated Content
4 Conclusions
References
Legislation, Regulation, and Policy Documents
Case Law
Private Life, Freedom of Expression and the Role of Transnational Digital Platforms: A European Perspective
1 Introduction
2 Private Life, Freedom of Expression and Possible Collisions
2.1 Private Life
2.2 Freedom of Expression
2.3 Balancing Private Life and Freedom of Expression
3 Internet Platforms and Private Life Infringing Content
3.1 UNGP
3.2 Facebook´s Commitment to the UNGP and the Oversight Board
3.3 Assessment - Facebook, the Oversight Board and the UNGP
4 Conclusions
References
The Freedom of speech in the Digital Era: Leveraging Its Constitutional and Social Ramifications
1 Introduction
2 New Medias and Markets
2.1 Role of the (New) Medias
2.2 Role of the Markets
3 The Nature of Freedom of Expression
4 Balancing Case Law
5 EU´s Normative Responses
6 The Role of Constitution and the Contested Constitutionalism
7 Deliberative Democracy and Public Sphere: Towards Peaceful Co-Existence?
8 Connecting the Dots
9 Conclusions
References
Reports, Studies
Who Watches the Watchmen? Social Media and Election Securitisation
1 Introduction
2 The State of Social Media Triangulation
3 Election Securitisation: The History and the Present
4 Election Securitisation in Social Media Policies and Practices Judged by International Election Standards
5 Conclusion
References
Cases Cited
Part III: Indirect Regulation for the Protection of the Freedom of Speech
The Marketplace of Ideas and EU Competition Law: Can Antitrust Be Used to Protect the Freedom of Speech?
1 Introduction
2 The Conceptual Level: Antitrust and Political Values
2.1 The Boundaries of Antitrust Enforcement: Is There Room for Free Speech in Antitrust?
2.2 ``More Political Approach´´
2.3 ``More Economic Approach´´
2.4 The Rediscovery of Political Antitrust
3 The Applicatory Level: Addressing Free Speech Under Antitrust
3.1 Free Speech and Antitrust in the United States
3.1.1 Free Speech and the Marketplace of Ideas
3.1.2 Antitrust as a Facilitator of Free Speech
3.1.3 Free Speech Values Under Antitrust Today
3.2 Free Speech and Antitrust in the European Union
3.2.1 Free Speech Values and a More Political Approach
3.2.2 Free Speech in the European Antitrust Framework
4 The Pragmatic Level: Handling Free Speech Under Antitrust
5 Conclusion
References
Building Surveillance State in a Digital Age and What Export Control Can(Not) Do About It?
1 Introduction
2 The Impact of the ICT Industry and Its Foreign Commercial Activities on Human Rights
3 The Wassenaar Arrangement: Fit for Purpose?
4 The EU in the Forefront of Stricter Control
5 Contours of New Regulatory Framework
5.1 More Human Rights Due Diligence on the Horizon
5.2 International Standards and Private Self-Regulation
6 Conclusion
References
Part IV: Book Reviews
Anil Yilmaz Vastardis, The Nationality of Corporate Investors Under International Investment Law
References
Nicols M. Perrone, Investment Treaties and the Legal Imagination: How Foreign Investors Play by Their Own Rules
References
