Respecting Context: A New Deal for Free Speech in the Digital Era

Respecting Context: A New Deal for Free Speech in the Digital Era

Argyro P. Karanasiou [1]

Cite as: Karanasiou, A. P., 'Respecting Context: A New Deal for Free Speech in the Digital Era', European Journal of Law and Technology, Vol. 3, No. 3, 2012

Abstract

This paper discusses the significance that context seems to be holding for free speech adjudication; realizing its context helps to adjust the right's protective scope in an appropriate manner. More importantly, framing speech within a context determines the balancing act performed in cases of clashing with other rights. As it is argued here, the digital era has framed free speech in a new context, which seems to challenge our present legal approaches. This paper highlights the need to perceive the new digital context and appropriate our current views in the light of digitization. Namely, it is suggested that free speech adjudication should take into account the specific architectural traits of the internet, which are dominant in the digital context. This argument put forth should not be taken to imply further that a hands-off approach should be followed online; on the contrary this paper calls for re-establishing the link between law and context, which seems to have been overlooked online. Highlighting this link will enable a better understanding of free speech in the digital era and will provide proper guidance for deciding the right's trade-offs with competing rights online, predominantly intellectual property and privacy. The paper urges for a new deal for free speech online: a balancing act based on its digital context.

'To exist is to change, to change is to mature, to mature is to go on creating oneself endlessly' - Henri Bergson

1. Introduction

This epigraph by the French philosopher Henri Bergson sets the scene for unravelling the main argument of this paper: reality is to be conceived as a creative evolution, being in constant motion. In this dynamic environment, it is the law's task to follow closely all changes and to adapt to the new reality created each time. For this purpose the law needs to be aware of its context and redefine itself accordingly. This paper discusses the current legal approach with regard to online free speech, assesses its application in the digital era and suggests its adaptation to the right's digital context. To reach this conclusion, the paper is structured in two parts: the first part deals with the conventional legal approach regarding free speech, while the second part examines how this approach is challenged in the digital era.

The paper begins by discussing the importance that the context holds for law in general. For this it relies on some general theoretical views, shared by legal theorists on both sides of the Atlantic. It then goes further and highlights the strong links between context and free speech adjudication. For this the paper uses examples from the ECHR and the First Amendment jurisdiction. Despite their noticeable differences, what is of importance here is the common respect for context that both jurisdictions seem to have developed in their free speech jurisprudence. Having established the importance of context for free speech protection, the paper goes on to discuss some of the most frequently adopted parameters for contextualizing free speech: space, property and state coercion monopoly. Although all these three parameters have been providing useful guidance for outlining the context, within which the regulative framework for free speech is set, it seems that they are now contested in the digital era. Furthermore it is illustrated that not only are the factors of space, property and state coercion outdated online but they are in fact misplacing free speech in the wrong context. As a result, free speech adjudication relying on such old juridical tools seems to be over-restricting for free speech, while it does not necessarily provide adequate protection for other competing rights, such as privacy and intellectual property.

The final section of the paper suggests an alternative view to our conventional approach in terms of offering adequate protection for free speech online: digitization. While rebutting the contested conventional legal approach to free speech, its reiteration in the light of the right's digital context appears to be an attractive alternative. Digitization presupposes a legal approach based on the understanding of the digital context and the embrace of the net architecture. Namely, it is suggested that free speech adjudication should be informed by studying the infrastructure of the internet so as to further respond to this context. In a way it could be argued that digitization seems to be following the Lessig's mantra 'Code is Law', while adding a supplementary parameter: that law should adapt to this new online environment by learning from code and becoming digitized so as to eventually determine a fair trade-off for free speech in a digital context.

2. Why context matters in law: Context as a key theme in the US and EU free speech jurisprudence

The idea of perceiving law as a dynamic phenomenon within a social context is hardly a new concept; legal scholars from both sides of the Atlantic have addressed this issue frequently in the past. [2] Contextualizing law is of course not a mere theoretical product. Take for example the widely embraced legal principles of contractual obligation, fiduciary duty or due process. [3] These are all substantiations of approaching law from a non-formalistic vantage point: through its context. Such legal principles rest on the understanding that context generates norms and expectations of certain influence to law. [4]

The understanding of law within a certain context seems to be deeply engrained in the free speech jurisprudence on both sides of the Atlantic. ECHR's concept of the margin of appreciation furnishes a very accurate example of the acknowledgement that law implementation largely depends on its specific context. In the absence of a common denominator, the restriction of the right to free speech is relatively dependent on its social context and thus lies at the discretion of each state alone. [5] Attempting a contextual evaluation of speech is also an indicator that determines the required level of proportionality and subsidiarity. [6] [7] Although a detailed analysis of modern human rights jurisprudence would fall outside the scope and focus of this paper, it should however be highlighted that both concepts of proportionality and subsidiarity presuppose a certain level of understanding and embracing the right's context. In this vein it could further be argued that contextualizing free speech protection helps the ECHR to facilitate the needs and expectations of a multinational democratic society.

In a similar way, the First Amendment appears to be acutely conscious of this interplay between the free speech jurisprudence and its contextual framework. One can extrapolate this from the frequently evoked principles of community standards and reasonable expectations. [8] Context has always played a significant role in the First Amendment: its absolute wording is to be perceived as a legacy of the past, entwined with the existing historical context during the First Amendment inception. [9] In general the US approach to free speech is to be attributed at large to the prevalent context at the time of its drafting. That said, the main objective of this comparative observation is to stress on 'this existence of a clear cross-jurisdictional consensus on the freedom of speech'. [10] The value of transplanting the First Amendment's interpretation of free speech to the European reading of free expression is not further addressed here as falling outside the remit of this paper. [11] On balance the overall picture seems to be that the free speech jurisprudence widely acknowledges context. Clearly context is an integral part of the free speech architecture: free speech appears to be a right meriting constitutional protection on the grounds of its interaction with its environment and upon ad hoc contextual evaluation.

3. A snapshot of the free speech architecture: The concept of trade-offs as a manifestation of contextualization

Thinking in context appears to be the quintessential factor supporting judicial review in cases of speech clashing with other rights. This contextualization embraced by both jurisdictions, finds its ultimate manifestation in the face of a 'free speech trade-off' with competing interests. By this it is meant the process of deciding about the limits of constitutional protection for a certain type of speech based on assessing its social value in relation to the value of its countervailing rights, both seen in a specific context. The concept of comparing trade-offs is introduced in this section to enhance our understanding on the way balancing works: in the absence of a common metric it involves a contextualization of conflicting rights as it measures them on the possibility of their realization in a given context. [12] [13] To assess this possibility in 'a concrete situation', judicial review takes into account various parameters, which serve as yardsticks for each context. [14] In this paper three such parameters will be examined: space, property and state coercion monopoly.

In the remainder of the paper it will be shown that the parameters frequently evoked for such a contextualization have altered their meaning in the digital era; they are thus no longer helpful in terms of placing free speech in its digital context. Accepting the hypothesis that the digital context matters indeed for free speech adjudication, the failure to properly contextualize free speech will most likely result to the right's inadequate legal protection online. Before discussing this hypothesis though, it is essential to describe how this contextualization takes place in free speech jurisprudence.

4. Parameters of free speech contextualization: Juridical orthodoxies challenged on the digital frontier

As explained, context helps us to determine potential trade-offs of the right to free speech and competing rights/interests and thus to decide on its scope under certain circumstances. In order to contextualize free speech, judicial review employs a series of parameters, which serve as yardsticks for outlining the context framing speech under review. This paper will discuss three such parameters, frequently evoked in free speech jurisprudence: space, property and state coercion monopoly. [15] It shall be argued that although this triptych has been widely adopted for deciding trade-offs in clashes between free speech and other rights, such as privacy and intellectual property, it is now challenged online.

4.1. Space

Space has always been considered a significant juridical tool, its legal conceptual roots intertwined with the Westphalian sovereignty. [16] As a result, not only international law and interstate relations were shaped on grounds of spatiality but also legal doctrines - especially those regarding jurisdiction- became largely dependent on space. Regarding free speech, space is generally considered to be an egregious conceptual element of this right. Serving as an underlying principle for the right to free speech, space is described 'as a secondary, inert, mostly fungible, and (like other public resources) neutrally distributed backdrop for expression'. [17] Space as a metaphor is also frequently adopted for explaining the various aspects of free speech: judicial review has made numerous references to the essential 'breathing space' needed for the right to survive. [18] Even the metaphor of the 'marketplace of ideas' dominating the First Amendment jurisprudence is indicative of the fact that spatiality is essential for the right to free speech. [19]

Globalization has challenged this conventional concept of territoriality in determining jurisdiction outside strict spatial terms. [20] [21] That said, constitutional protection is nowadays still at large connected to legal spatiality. [22] However, the concept of spatiality has been questioned further in the digital era: not only was state power disconnected from geographical borders making international cooperation essential but also jurisprudence was introduced to a trans-jurisdictional communicatory platform generating common law with transnational impact. [23] [24] On the threshold of the digital era, the judiciary was the first to attempt applying the law to these new circumstances. Not having profound knowledge of the internet infrastructure, judges resorted to the metaphor of cyberspace as a space and property. By adopting the metaphor of space-as-property, the judiciary tried to configure free speech in a yet unknown to them field and define it with their existing legal tools: space and property. [25] A decade later, it seems that the internet related jurisprudence still considers maters in terms of spatiality, property and state monopoly of coercion ignoring the fact that all points of this triptych are now challenged online.

The ruling in LICRA v. Yahoo, noted the overarching challenge to define space online in terms of jurisdiction. [26] The case, which is considered a landmark for IT case-law, involved the legal action of an anti-racist French organization against the auctioning of Nazi memorabilia online hosted in the Yahoo! webpage. When the US Courts discussed the enforcement of the French issued injunctions against the US based Yahoo! they were faced with the question of jurisdiction. The dictum of Justice Fogel that the 'Internet in effect allows more than one to speak in more than one place at the same time' equals to an admittance that the legal assumption of space in terms of a geographical connection to a certain legal sphere could no longer hold online. [27]

Almost ten years later, the WikiLeaks case highlighted this change in the concept of spatiality. When the US DNS provider 'Every DNS' decided to withdraw its services to WikiLeaks and pulled the plug off its website following political pressure, WikiLeaks managed to sustain their online presence in the following ways: Initially WikiLeaks transferred to a Swiss ccTLD, which directed users to a Swedish IP while having their content hosted by a French server. [28] [29] [30] Eventually, they enforced their Swiss domain name with DNS diversification. Namely they set up 14 authoritative name servers in eight different countries pointing to three diversely routed ISPs, in Sweden, France and the Netherlands. [31] [32] To this one could also add the over 1000 additional mirror sites, which voluntarily displayed the WikiLeaks content on their websites. [33] Space as we once knew seemed to be forever lost online.

Such cases illustrate clearly the fact that the internet has introduced a multidimensional aspect of spatiality, which is utterly new and almost estranged to the concept of space used in the analogue world. Or, as Mark Graham has put it:

'The Internet is characterised by complex spatialities [sic] which are challenging to understand and study, but that doesn't give us an excuse to fall back on unhelpful metaphors which ignore the Internet's very real, very material, and very grounded geographies'. [34] [35]

That said, a note of caution should be added for the reader: This is not to imply that cyberspace constitutes a separate jurisdiction being altogether a different autonomous place; the latter argument, although attractive in the past to those favourably disposed to the idea of cyber-exceptionalism, is today almost abandoned. [36] [37] [38]

4.2. Property

Space as a contextualizing parameter for free speech is by itself not enough to outline context and to delineate the rights protective scope. In this task, judicial review seems to be following a public/private dichotomy. Namely activity is divided into multiple private and public spheres, which at times may overlap. In order to determine the speeches' proscribed limits, judicial review takes into account this distinction of space, following the private/public dichotomy. This dichotomy is in fact the manifestation of property; thus ownership of a certain space determines action within this sphere, described as private or public.

This contextualization based on property is well reflected on the 'public forum' doctrine; free speech jurisprudence generally acknowledges a positive guarantee for communicative rights in the face of public forum. [39] [40] Namely, the state is expected to ensure that there are some essential open public spaces reserved for exercising free speech. [41] In addition to all quintessential public forums such as parks and streets that have traditionally hosted public discourse, the state can also decide to make a non-public space available as an expressive platform. [42] [43] This ability of the state to map free speech by determining certain public and non-public forums derives at large from the state's ownership status of spaces. [44] Similarly to space, the concept of property has also been seriously contested online; in fact the internet seems to be based on a rival concept: sharing. Net architecture is mainly built on non-proprietary grounds; its basic structural features of the internet, 'interactivity, mass participation, non-exclusive appropriation and creative transformation' are directly opposed to any proprietary regulating regime. The internet is fuelled by this shared information, which runs through its networks and is being exchanged within its connected nodes. [45] [46] Some of the most innovative and successful projects online owe their creation and development to the participation and collaboration of many users together. Wikipedia, Linux or even the very recent Icelandic Constitution: these are all projects drafted online based on contribution, open source, modification and peer review.

Of course information has become a tradable commodity in the digital era, so in this sense it is not totally detached from property. Nonetheless, the traditional concept of property seems contested as the public/private dichotomy is now blurred in the digital era. Information is no longer just a tool to build an academic open communicatory platform, as it was in the internet's early days. [47] The monetization of information is a fact online; however its proprietorship is constantly evolving and has thus departed from the classic concept of property. It is exactly this flexibility in the concept of property that is a major driving power behind the Internet's astonishing growth. James Grimmelman attributes the Internet's success to its ability to alter the property boundaries in introducing a semi-commons communicatory platform. [48] Property appears to have altered its meaning online. The net infrastructure involves a system that by and large relies on the undeterred exchange of information; for this system to be sustainable, property should be given the necessary flexibility. [49] As a result, the conventional concept of property cannot hold any longer in the digital context and is thus not helpful as a legal tool for free online speech adjudication.

4.3. State Coercion Monopoly

The legal assumptions of space and property described above serve as the main coordinates that frame free speech and determine its trade-offs with other rights. One could further note a third legal assumption that contributes towards placing rights in the proper context while balancing them. That is the concept of the state coercion monopoly. [50] In other words, this legal assumption refers to the general acknowledgement of the state's sole power to enforce its free speech restrictions in the name of protecting a countervailing interest. [51] The trade-off that free speech adjudication entails is guided from this concept as well: Besides using space and property as juridical tools to outline the permissible limits to free speech, the relevant jurisprudence also relies heavily on the understanding that the state is able to do so as it seems to be the sole source of coercion.

The legal assumption of state as the sole ruling deity is also disputable online. In as early as 1996, John Perry Barlow's 'Declaration of Independence in Cyberspace', a libertarian manifesto suggesting a hands-off the net approach, denied altogether 'the governments of the industrial world' and declared void their 'moral right to rule' and to enforce their rules. [52] This argument -although regarded today as a utopia of the early days of internet- it has nonetheless survived in Lessig's famous quote 'Code is Law', which identifies another ruling deity online besides the state: the code. [53] [54] Lessig's argument -that eventually the software is capable of embedding and implementing further regulatory actions online- has proven to be accurate many times in the internet's short history since the nineties. [55] But the code alone did not displace state as the sole governing deity online. Private corporations were also soon among the stakeholders, deliberating for their own share of control online. It became obvious from early on that in the digital era, invisible forces would play their own role alongside the state in online governance. [56] [57] By 2005 a trans-national multi-stakeholder online governance model was widely adopted moving away from any sense of state centrism. [58] In the following years, many online governing online bodies were suggested; ICANN, UN and ITU to name a few. [59] All such developments highlight the displacement of the classic state centric model by a multi-stakeholder online governance model. [60]

In this section it has been claimed that the ontologies of space, property and state coercion monopoly have dominated the free speech trade-offs with competing rights. By acting as descriptive parameters for the context, within which free speech and other rights occur and collide, these legal assumptions help us contextualize speech properly and weigh it against other rights at stake. Nonetheless, this triptych does not seem to hold online. As it was shown, all these three legal assumptions have become relevant in cyberspace. It would not be a hyperbole to say that the three axiomatic parameters of space, property and state coercion monopoly are now shaken to the ground in the internet age. However it should be made clear from the start that it is not suggested that these parameters have altogether ceased to exist online; they have only become inapplicable as such. To avoid any further misperceptions, what is argued here is not that there is absolutely no notion of space, property and state coercion online. Nor is it suggested that -for example- online users interact in an a-spatial continuum. [61] The main argument put forth is rather that all these concepts have been challenged online and they thus could only be useful as legal tools when reconfigured within the digital context. In other words, although they were traditionally considered as unchangeable legal axioms that could outline the given context in which judicial review was to assess free speech, they now appear almost mutated online; as such they seem to be of little help for contextualizing free speech online.

5. Contextualizing in the digital era: In search of a new deal for free speech online

The main purpose of this paper so far has been to highlight that maintaining our old legal views seems to have problematic implications for free speech online. Its basic argument revolves around the fact that the idiosyncrasy of the internet has challenged some of the most frequently evoked parameters in contextualizing speech and deciding on its trade-offs with other competing rights. As it was explained in the first part of this paper, acknowledging the context is a crucial factor for properly protecting free speech. Next, the contextualizing parameters of space, property and state coercion have been examined online. The findings illustrated that these three juridical tools have been contested in the digital era and do not seem to hold any more online as they are not coherent with the digital context.

Yet, if this is indeed the case and our current legal approaches can no longer contribute towards offering adequate protection for free speech online, what is a suggested alternative? Does this also imply the necessity to make new rights for offering sufficient constitutional protection to our fundamental rights like free speech in the digital era? [62] Before resorting to drafting new rules for existing rights, it would be wiser to explore the option of whether the existing human rights protective framework could still efficiently shield free speech online. As the problem seems to be the disregard of the digital context, then a contrario the answer could perhaps be sought in understanding and embracing this new digital context for speech. In other words, the conventional legal approach to free speech should be digitized: our present views need to be reinforced in the light of its digital context.

5.1. Digitization as respect towards the context: A theoretical enquiry

As it was noted in the first part of this paper, placing the law in context is not a new idea. However, it has already been shown that internet-related policies seem to be ignoring the online context for free speech, the infrastructure they are trying to regulate within. As a result, free speech receives inadequate protection online. A suggested remedy for properly protecting free speech online could perhaps be found in the digitization of the free speech legislative framework online. Taking a closer look at digitizing our present legal approach, one easily understands that this involves understanding the context and embracing its dominant features. Namely, this process of digitization takes us a step further from acknowledging the context to actually showing respect for the context, predominantly for its architecture. Palfrey and Zittrain have recently suggested a similar idea to digitization. In their paper published in Science they observe that:

'… the best approach is neither to make ill-informed decisions based on too little data nor to avoid state regulation simply because of the absence of recent data. Instead, we should begin a concerted push for highly reliable and publicly available forms of measurement of the Internet and the Web … including the flow of information we generate and consume." [63]

To do so, they add, 'we need to know more about the architecture of the network and how it is changing'. [64]

Yet, why is it important to respect context and embrace the internet's architecture? As it was noted earlier, ignoring the architecture can lead to paradoxes, since law is misplaced in a wrong context. Moreover, as Nissenbaum notes, digital context is dominated by certain informational norms, which in turn raise certain expectations as to the regulation of the informational flow online. [65] According to her, respecting these 'context-relative informational norms' offers useful guidance as to deciding the right's trade-offs. For this purpose she introduces the concept of 'contextual integrity': a prescriptive model based on the importance of context for regulating the informational flow online. [66] [67] Even though Nissenbaum is primarily concerned with privacy and discusses context from a different point of view to free speech, her general views as to determining a right's trade-offs 'in the light of contextual ends and purposes' agree with the concept of digitization as a whole. [68]

At this point it should be noted that neither the idea of law reviewed in context nor that of law embracing context are new: The concept of law being informed by its environment and subsequently respond to the stimuli generated within a certain context draws from the relevant theory of Philip Selznick on responsive law. Selznick uses the principle of 'fidelity to context' as a stepping stone for this theory. [69] It is the context that will eventually determine the acceptable limits of law and 'the tradeoffs that must be negotiated'. [70] Even though some rights such as free speech and property have gained a certain level of absolutism that would not easily allow for this flexible contextualization, Selznick suggests their contextual approach in realizing their underlying principles in the context given. [71] This is the logic behind Selznick's 'responsive law', a law that seeks to 'vindicate legal ideals while taking account of opportunities and accepting restraints'. [72] [73] This realization of values underpinning a certain right within a specific context seems to be the decisive parameter for implementing efficient laws. [74] The idea of law responding to its context in order to realize its values could work well with the idea of digitization, namely law responding to its online context in terms of architecture. Taking into account the specific architectural traits of its digital context, the legislative framework for protecting free speech could become more successful in achieving the right's values online.

5.2. The importance of net-architecture and the need for digitization: How no respect for online architecture can lead to paradoxes

Understanding context as a new tool for online free speech adjudication could help significantly where the conventional legal approaches seem to fail. Digitization of the current legal approach to free speech is thus suggested as an effective alternative online to the current outdated practises. Point of departure for this is to gain a clear perception of the net architecture: it is this respect towards the net-architecture that lies at the heart of digitization. Ignoring this aspect, as it will be illustrated soon, could lead to paradoxes and would thus doom relevant internet related legislations to failure. Moreover, it is precisely because of the net's unique architecture that all the above mentioned parameters are challenged online. Taking a closer look at its architectural elements explains to a certain extent why frequently evoked juridical tools such as space and property are not applicable to legal reasoning as to online speech.

The internet itself is essentially nothing else but a suggested architecture for communications networks. As its inventors, V Cerf and R Kahn note:

'In essence, the Internet is architecture, although many people confuse that with its implementation. When the Internet is looked at as architecture, it manifests two different abstractions. One abstraction deals with communications connectivity, packet delivery and a variety of End-to-End communication services. The other abstraction deals with the Internet as an information system, independent of its underlying communications infrastructure, which allows creation, storage and access to a wide range of information resources, including digital objects and related services at various levels of abstraction built on architectural principles and follows a layered design'. [75]

Lacking adequate space in this paper for a detailed technical overview of the net architecture, I will refrain myself to simply highlight its two main traits; this way it will be further explained why our conventional legal approach seems outdated online. Indeed the internet infrastructure has been built on two basic architectural assumptions: the interconnected nodes on an End-to-End basis and the layered design operating on the principle of modularity.

The End-to-End principle suggests the following basic design: keeping the network simple while placing its intelligence at its ends. [76] Namely, the network should only be endowed with transmitting efficiently datagrams; 'everything else should be done at the fringes'. [77] As a result, End-to-End renders the network flexibility and the ability to work with all sorts of data or as Lessig eloquently puts it 'End-to-End codes a kind of neutrality' to the network. [78] This way, the internet maintains a flexibility in its design as all users can contribute to its architecture. Platform configuration depends on the user's ability to create and implement additional software; control over its architecture 'becomes separable from network ownership' granting end users 'non-discriminatory ability to design the architecture of a communication platform' besides those who own and control its infrastructure. [79] It is therefore apparent that the internet's architecture is by default inimical to any sense of property ownership.

Protecting free speech in the digital era would therefore entail showing respect towards its architecture when resolving issues of free speech online. The respect to online architecture is also a point that has been discussed before, with a particular focus on the internet's key architectural features, the End-to-End principle and layered structure. [80] Regarding the latter, it has been argued that internet related policies violating the net's layered structure ultimately damage transparency and innovation. [81] As to the End-to-End principle, Lessig and Lemley argue that this architectural trait has enabled innovative competition online, and as such should be protected by internet-related policies. [82] In a similar vein 'the End-to-End concept animating the versatile and volatile Internet should inform First Amendment doctrine'. [83] This paper takes on a similar yet slightly different approach; it regards digitization as a way to strike up a new deal for free speech online. Adequate protection for online speech seems to rely on informing the existing constitutional framework for free speech and its tradeoffs by studying the net's unique architecture.

In addition, the user is granted a more active role in determining his spatial limitations. Although it is hard to limit the information within the genuine intentions of its initial two communicative parts, both the speaker and the listener can self-outline their communicative spheres beyond the sense of a given jurisdiction. As a listener, the end node can choose to self-filter the information coming from certain speakers. As a speaker, one can choose to join her preferable communicatory channel for imparting information online without having to follow a certain predetermined jurisdiction. [84] It becomes therefore clear that space and property as legal tools for determining certain tradeoffs for speech are no longer helpful.

Furthermore, the internet's layered structure explains the difficulty for the state to centrally control and enforce its laws. The state coercion monopoly is contestable in this decentralized architectural design comprised by several autonomous layers that interact with each other vertically. Each layer maintains its autonomy and functions strictly on instructions intended for it specifically, without having overall knowledge of the operations in the other layers or of the content itself. As a result, information is routed around freely beyond any limitations of spatial, proprietary or controlling nature. Contrary to the closed centralized model that is dominant in the architecture of the mass media today, the internet's open distributed architecture promotes free flow of information, empowers the user and constitutes a democratic open interactive platform. [85] In the absence of a 'centralized distribution point', independent information sources are given numerous online outlets while the chances of potentially stifling those independent voices are significantly minimized online. [86]

Free flow of information seems to be the main fuel on which the internet runs. As a result, the net architecture is inherently inimical to any sense of spatiality, property or central state control. This observation however, should not be misinterpreted as advocating for a hands-off approach; it rather serves the purpose of stressing that maintaining juridical tools, which have in fact little to do with the net architecture, could actually lead to imbalances with significant implications for online free speech. This failure to embrace the net architecture could lead to major problems in free speech protection: contextualizing as a process for determining the right's trade-offs would be flawed, if the online context is to be fully ignored. If indeed this hypothesis holds, that disrespect for the net architecture misplaces rights in the wrong context, then using the old parameters could lead to a faulty contextualization of free speech. This in turn would further result in a false trade-off, detrimental to the right to free speech. To illustrate this point and examine the validity of this hypothesis put forward, two sets of rights frequently clashing with the right to free speech online will be examined: privacy and intellectual property. As it will be shown next, insisting on ignoring the internet as a special context for free speech ultimately results to an over-restriction of free speech online without necessarily offering sufficient protection to its competing right.

5.2.1. The Net architecture and the clash between free speech and privacy

Examining the controversy between the right to free speech and privacy online, it is generally observed that the balance struck promotes the latter, almost at the expense of free speech. While maintaining a proprietary view of the right to control one's private data and ultimately to 'be left alone', the right to privacy online seems to be gaining ground against free speech. [87] This tendency is reflected rather clearly on the latest legislative initiatives regarding online privacy. The current EU proposal to introduce a 'right to be forgotten' into an EU General Data Protection Regulation provides us with a very good example. [88] Even though it would be admittedly unfeasible to implement such a regulation online, speech seems to be overly restrained. Again, the Commission considers matters in terms of the outdated parameters described above; in specifying that this right cannot be claimed against 'pure hosting services' with 'no ownership and no responsibility' for content posted online, it relies on the notion of 'property' online. [89] Yet, in the era of cloud computing it will be extremely difficult to claim and maintain ownership of data, let alone stop its dissemination. [90] After all, this is a constitutionally guaranteed right, being outside the remit and goals of private corporations. In the same vein to the EU's proposal for the right to be forgotten, the Obama administration announced in February 2012 its plans for a 'Consumer Privacy Bill of Rights, which will introduce a 'Do Not Track' button to all browsers. Although it would be interesting to see how corporations, whose revenue comes from personalizing ads tailored to their users' online habits, would respond to this, such legislations seem to be missing the point: a consumer is not concerned about his freedom of speech; a citizen on the other hand is guaranteed this right. [91]

Thus by failing to contextualize properly the rights at hand, such legislative initiatives appear to be carrying new threats for free speech and question its protection online. Let us not forget that it was Yahoo! that passed to the Chinese government the email addresses of dissidents criticizing them, it was Vodafone that cut their services in Egypt on orders of Mubarak during the uprising and it was the US Blue Coat Systems that has aided the Burmese junta with its censoring and monitoring infrastructure. [92] Honest intentions are not enough to erode such a sinful past; entrusting ICTs with managing data-flow in terms of proprietorship seems to be a questionable policy as to online free speech. Especially in terms of the freedom of the press to inform the public and archive its material for future use, the restrictions of proposed legislations like the 'right to be forgotten' are particularly problematic. Consider for instance the Trafigura case, where the Guardian and BBC reported in May 2009 that the oil trading company, Trafigura, had released toxic oil in the Ivory Coast. At the end Trafigura was convicted and fined for illegally exporting toxic waste to Africa - The details of this story can be found archived online, even though it is quite certain that Trafigura would be very eager to 'be forgotten'. [93] It therefore becomes evident that the balance drawn here is rather unfavourable to free speech. [94] By ignoring the fact that the public and private dichotomy is not that easy to discern any longer online, law appears to be stubbornly insisting on applying online disputable concepts such as spatiality and property. As a result, the relevant balancing act has troubling implications for the right to free speech online.

5.2.2. The Net architecture and the clash between free speech and intellectual property

Unfortunately the same is to be noted for another online competing right to free speech: intellectual property. Most of the latest legislative initiatives in this field have been criticized severely for imposing tremendous restrictions on free speech in order to protect copyright infringement online. Take for example the controversial 'gradual response' regulative model that is adopted in a series of legislative texts implemented worldwide. [95] In June 2012, Frank La Rue, UN's Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, noted his concerns regarding such legislations implemented in France and the UK. In his report to the Human Rights Council he considered the French 'Three-strikes-Act' and the UK Digital Economy Act as legislations that have alarming implications for intermediaries' liability and the freedom of speech in general. He noted further that this kind of arbitrary blocking of content for protecting intellectual property online eventually 'leads to self-protective and over-broad private censorship, often without transparency and the due process of the law'. [96]

Equally problematic and obscure are also other similar measures taken for protecting intellectual property online. Take for example the DMCA Notice and Takedown regime, namely the removal of illegal content directly from the ISPs hosting it upon their notification from users. To highlight the dangers such regimes pose for free speech, the 2004 study by Christian Ahlert, Chris Marsden and Chester Yung run the following experiment: after having uploaded in a US and a UK ISP hosted website the second chapter from Stuart Mill's on Liberty, which symbolically referred to censorship, they then complained to the hosting ISPs about copyright breach; even though the works of Mill is public domain published in 1869, the UK ISP immediately complied with the takedown request and removed the content. [97] [98] In spite of such alarming findings, the relative legislation continues to maintain its parochial views on property and spatiality. The latest example comes from the US: Recently the Stop Online Piracy Act (SOPA) was introduced in the US Senate. Under this Act it was made possible to obtain a court order for the US ISPs to deny access for all their subscribers to absolutely any national or foreign website that would be found to be having copyright material. Although PIPA and SOPA were not enacted due to intense lobbying, the implications for freedom of speech would have been tremendous had these Acts become law.

The examples noted above are indicative of the fact that relying on the traditional legal parameters when balancing online speech leads eventually to the over-restricting this right. At the same time, this does not also mean that in doing so the lawmaker secures a certain level of protection for its countervailing rights. On the contrary, persisting on balancing rights online using outdated parameters, could also lead to the paradox of the under-protection of the competing right at stake while over-restricting free speech.

Returning back to restricting free speech online for the sake of privacy, it seems that it can at times have the opposite result. What is described here is most commonly referred to as the 'Streisand Effect'. [99] Named after the famous American entertainer, it refers to situations where protecting privacy over free speech can lead to augmentation of the public's interest in divulging such information online. In this particular case the attempt of Barbara Streisand to take down photos of her residence from a website in 2003, inadvertently gave rise to the public knowledge of these photos; this was translated into more than 420,000 users visiting this website in one month. [100] Thus, in trying to restrict speech online while ignoring its digital context, not only do we over-restrict speech but we are also faced with the paradox of the under-protection of the other right at stake; in this case privacy.

This paradox of under-protection combined with over-restriction of speech can also be traced in the other set of competing interests examined above: free speech and intellectual property online. In this case, the under-protection lies in the fact that over-restricting speech has a deep impact on the underlying value protected by intellectual property: innovation. It has been argued time and again that in protecting 'the presence of strong exclusive rights in information and culture' the law does not nurture innovation. [101] [102] Moreover, the employment of technological means to enforce intellectual property such as the DRM, eventually leads to monopolies in online publishing, which in turn stifles innovation and creativity. Draconian intellectual property legislation seems to be promoting an unfair trade-off for free speech with undesirable consequences. [103] [104] Namely, in over- restricting free speech for the sake of maintaining old views, it is shown once again that we are in fact led to the paradox of offering insufficient protection to its competing right, intellectual property this time.

Understanding the architecture means realizing the change and the reason why our conventional approach is not valid any longer. Digitization, the process of embracing the architecture and incorporating this to internet related legislation, could be proven to be an effective attitude towards protecting free speech online. The remainder of this paper will explore the potential for digitization, whether this could actually work in practice and to what extent it could promote free speech online.

6. Digitization in action: Towards a New Deal for Free Speech

Digitizing our current views is a task that presupposes understanding of the main infrastructure of the internet. Of course, it is not easy to escape metaphors and change the conventional legal approaches when dealing with free speech online. The wide use of words such as 'cyberspace' or 'web-site' with obvious references to spatiality tended indeed to be rather misleading in our first legal encounters with this new technology. The prefix cyber, coming from the Greek word 'κυβερνώ' meaning 'to rule', implied a spatial-centric system, where space and property could be its main components. Yet, in spite of the attractive metaphors, the internet has never really been a separate jurisdiction, a distinct public sphere or even a technology premised on spatial and proprietary grounds; it has always been a network of inter-connected machines exchanging bits and bytes.

Nowadays, the Internet's initial networking architecture is gradually embracing a designing principle of an info-centric system, its priorities being to increase trust and accountability online. [105] [106] This info-centrism lies at the heart of the net architecture. The limited scope of this paper would not allow for a more detailed technical analysis of how the internet is structured. However the point of departure in terms of digitizing the current legal approach as to online free speech should be the following: The first step towards understanding the net architecture is to realize that it feeds on abundant information being routed around its nodes. Through this lens, the task to perform trade-offs between free speech and competing rights, such as intellectual property and privacy seems somewhat easier. Supposing that the abundance of information in an open ended interconnected system is the main mechanism supporting the internet, it could be argued that privacy and free speech are actually complementing and not competing rights. If the main priority is the abundance of information, then this could be achieved by securing privacy and free speech. Keeping all data private by encryption methods would also mean eliminating chilling free speech cases in fear of identifying who the speaker is. Many online initiatives are already offering such services. A good example in this respect is the Tor project: an open network protecting online free speech by bouncing online communications around a distributed network of relays run by volunteers all around the world. [107] This way data can then be routed around freely so that its message is widely disseminated. [108] Should our current legal approaches become digitized, it then becomes more easy to decide on a trade-off: under this view free speech gains additional importance as a structural element of the net architecture. Therefore a threat to the architecture would also mean that both free speech and privacy would be threatened as well.

Examining the other set of competing rights through the lens of digitization, i.e. free speech and intellectual property, again negotiating a fair trade off seems to be gaining more chances of success. Supposing that the net architecture is premised on the economics of abundance whereas intellectual property relies on the economics of scarcity, protecting free speech over intellectual property online seems to gain added attention due to its importance for the digital infrastructure. [109] To bring this paper to a close, it is suggested that understanding better this new environment, within which human rights function, clash and interplay can contribute towards striking a new deal for free speech online. This involves trading our old legal approaches for new; spatiality for multidimensional reality, property for quasi-commons and state coercion monopoly for multi-stakeholder division of powers. Although we could still utilize the existing free speech protective framework, we need to learn from the net's structure. Its understanding will help us contextualize online speech properly and eventually come up with a new deal for the right's protection in the digital era. In the words of Professor Joel Reidenberg, regulative problems in cyberspace -like the ones described earlier- 'will absolutely continue to come up, until one or two things happens: Either the technology companies begin to build architectures that enable compliance with existing law, or the law begins to change'. [110]

7. Concluding Remarks: Is there light at the end of the tunnel?

Recent policies adopted by ICTs and legislations proposed in national and international level appear to be distanced from the online context they operate within; it seems that we are still miles away from the idea of digitizing our current approaches. Unfortunately the current legislative attempts and policies appear to be deconstructing the structural elements of internet instead of trying to preserve them and regulate along these lines. [111] The recent internet related policies not only ignore the internet infrastructure they are regulating within, but they also threat its architecture altogether; as a result, the dangers posed for free speech are multiplied. Take for example the legislative framework introduced by the much opposed SOPA bill, which has also been accused of affecting the net architecture by causing harm to the DNSSEC deployment tools. [112] At the SOPA hearing for the House Judiciary Committee CCIA Chairman Ed Black noted that the bill 'will fail to actually stop trafficking to infringing sites and will balkanize internet traffic, sending the real pirated to foreign DNS servers that can't easily be monitored'. [113]

In a similar manner, the ICTs integrating policies in a quest to gain control over the informational flow are seeking to change the internet's current ecosystem. A notable example of this kind is the Kindle Fire, Amazon's latest venture. Amazon has total control over its hardware, operating system and the user's internet connection; the turn from the fragmented structure of the internet with control at the fringes to a 'feudal' system of centralized control at the centre is undeniable. [114] Subsequently, informational flow can be adjusted to the likes of the corporations controlling the platform. [115]

Although the most recent legislative attempts regarding online privacy and intellectual property seem to continue disregarding the internet's ubiquitous and collaborative nature, there are also notable exceptions. [116] The very recent ECJ ruling in Scarlet v SABAM is an encouraging development in succeeding to strike a new deal for online free speech. In this case the ECJ ruled that a court order to a Belgian ISP to monitor all electronic customers for preventing illegal file-sharing was overbroad and impeded -among others- on their right for free expression. Noting that this could potentially result in over-blocking and not lead to a fair balance, the ECJ made an interesting remark on the transnational implications of enforcing this court order:

'It is not contested that the reply to the question whether a transmission is lawful also depends on the application of statutory exceptions to the copyright which vary from one member state to another. Moreover, in some member states certain works fall within the public domain or can be posted online free of charge by the authors concerned'. [117]

The ability to digitize the concepts of spatiality, proprietary status and state power by realizing the structure of the digital environment is apparent in this ruling. Hopefully, it will provide the basis for more similar rulings to come in the future.

Digitizing the present legal approaches for free speech on the internet, namely showing awareness and respect for the digital context of free speech seems to be offering a fair trade-off for the right under review. Even though the current internet-related legislative framework seems to be ignoring the crucial parameters of context and net architecture, many technologists are trying to fix this negligence by offering technical ways to restore respect to the architecture. Take for example the Freedom Box, a community project led by the Columbia Law Professor, Eben Moglen. Freedom Box seeks to create 'a personal server running a free software operating system, with free applications designed to create and preserve personal privacy'. [118] In other words this is a system designed beyond the parameters of property, space and central control. As Moglen notes, this project will make 'freedom of thought and information a permanent, ineradicable feature of the net that holds our souls'. [119] In response to Moglen's call for a decentralized open operating system, a group of NUY students launched an alternative social network called Diaspora*. [120] Their vision according to their blog is to build 'A new social web model where users are not the product, but wilful participants who are creating new modes of communication'. [121] Another such example is the Retroshape, a decentralized encrypted network that allows for anonymous, private file sharing among its users. [122] The list of such initiatives undertaken by technologists is endless. [123] It is true that technical means can be employed to maintain the archetype of the structure upon which internet was born and flourished: a fragmented, multi-layered and interconnected network beyond the notions of property, control and space. Yet, this by itself is not enough. As this paper argues legislation should follow the same path and protect free speech online acknowledging the importance and idiosyncrasies of its digital context.

On February 29th 2012 an international panel consisting of international human rights officials and other stakeholders held a meeting at the United Nations in Geneva. This was the outcome of the UN Human Rights Council's Decision 18/27, adopted in September 2011 decision seeking 'to convene, within existing resources, at its nineteenth session, a panel discussion on the promotion and protection of freedom of expression on the Internet, with a particular focus on the ways and means to improve its protection in accordance with international human rights law." [124] In this meeting discussions were facilitated regarding the need to provide sufficient protection for free speech online and ideas were sought on how to achieve this goal. Markus Kummer, ISOC-Vice President for Public Policy pointed to the direction of digitization and highlighted this vital link between the internet's infrastructure and free speech in noting:

'The core values of the internet pioneers are deeply rooted in the belief that the human condition can be enhanced through the reduction of communication and information barriers (…). These unique enabling qualities of the internet should be preserved'. [125]

In other words, a modernized approach of free speech oriented towards embracing the unique net architecture seems to be the optimal solution for safeguarding the right to free speech online. The digital era calls for adaptation of our old views resulting to the reiteration of the legal equilibrium regarding free speech; failure to understand and respect the online context for free speech makes this equilibrium seem as fragile as ever.

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[1] © 2012 Argyro P. Karanasiou is Lecturer in Law (Business School, Bournemouth University) and PhD Researcher (Centre for International Governance, University of Leeds). The author would like to thank Professors Ian Cram, KH Ladeur, Clive Walker and Dr Subhajit Basu as well as the anonymous reviewers for their valuable comments and gratefully acknowledge the support from the Sir Richard Stapley Educational Trust. Any errors or omissions remain the sole responsibility of the author.

[2] In the words of Justice Holmes, law 'should correspond with the actual feelings and demands of the community' and is thus a constantly evolving non-static discipline, estranged to the stability that characterizes science (Oliver Wendel Jr Holmes, The Common Law (Little, Brown and Co 1881) 41. See also Oliver Wendel Jr Holmes, 'The Path of Law' (New York) 10 Harv L Revp. 457. US scholars Roscoe Pound and Karl Llewelyn further highlighted the link between law and society and referred to the perennial need of the former to constantly evolve and adapt to the latter. The British 'Law in Context' movement is one of the few notable examples of the European response to the American realism. For more on this see William Twining, Law in Context: Enlarging a Discipline (Oxford University Press 1997). Notable in this field are also the works of Guenther Teubner and Karl-Heinz Lauder who both discuss the strong connection between law and society offering a variety of neo-evolutionary models. See Guenther Teubner, 'Substantive and Reflexive Elements in Modern Law' 17 Law and Society Review; Karl-Heinz Ladeur, 'Verrechtlichung der Ökonomie - Ökonomisierung des Rechts' in Volkmar Gessner and Gerd Winter (eds), Rechtsformen der Verflechtung von Staat und Wirtschaft (Westdeutscher Verlag 1982)

[3] Phillip Selznick, 'Law in Context Revisited' 30 Journal of Law and Society 179

[4] As such 'law in context' may seem as a broad and vague concept. For the purposes of the present paper, focus is put mostly on the ability of the context to generate social rules that are to be combined with the current legal rules. Although these new social rules are not studied per se, the paper seeks to explain the disparity between the new context and the current legislative framework. I am particularly grateful to Professor Karl-Heinz Ladeur for bringing this point to my attention.

[5] The court in Handyside highlighted the necessity for the states to do their own readings of article 10 ECHR: "[It] is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals. The view taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterized by a rapid and far-reaching evolution of opinions on the subject." Handyside v. United Kingdom, App. No. 5493/72, at paras. 48-49 (Dec. 7, 1976)

[6] The European legislation generally acknowledges that the importance of the context for free speech derives from the general principle of law responding to a 'pressing social need' in taking action that is deemed 'necessary in a democratic society'.

[7] Expressed in Article 5 of the Treaty on European Union

[8] In Miller v California the Supreme Court introduced an understanding of obscene speech based on the judgment of 'the average person, applying contemporary community standards'. (Miller v. California 403 US 15 (1973).

[9] The First Amendment is generally understood as a response to the repressive legislation imposed on free speech by the English Crown, which although had ceased to exist before the First Amendment, had already left its strong imprint on the American society; seditious libel, the prior restraints dominating the licensing system or the doctrine of constructive treason offer some good examples of this oppressive regime. For an account on the history of First Amendment and freedom of speech and press in the US see L Levy, Emergence of a Free Press (Oxford University Press 1985)

[10] Ian Cram, Contested Words: Legal Restrictions on Freedom of Speech in Liberal Democracies (Ashgate 2006) 16

[11] For a discussion on this see I Cram (n10) 11-15

[12] The word balance is sometimes interchangeably used to mean either an actual balance - which is mostly the case in the ECHR- or a trade-off in the manner of a prioritization of values undertaken by the First Amendment jurisprudence. Although the two jurisprudences have distinctive approaches as to how they examine such clashes, they both seem to rely on certain parameters for contextualizing free speech. It is this point that I want to stress rather than give a general account of their similarities in adjudicating free speech protection.

[13] For an overview on the relevant debate regarding an acceptable common metric see St Tsakyrakis, 'Proportionality: An Assault on Human Rights?" [2009] 7 International Journal of Constitutional Law 470. Schauer considers the issue of a common measurement value in his work: although he does not embrace common metrics based on monetary or commoditory grounds and suggests utility as a common denominator. Frederick Schauer, 'Commensurability and Its Constitutional Consequences' 45 Hastings Law J 785

[14] Drawing from Alexy's theory of principles, Da Silva further describes this balancing act as a comparison 'among concrete alternatives and not among abstract values'. He regards this as a comparison between 'trade-offs'; namely, the weighing between the realization of competing rights 'in a concrete situation'. VA Da Silva, 'Comparing the Incommensurable: Constitutional Principles, Balancing and Rational Decision' [2011] 31 Oxford Journal of Legal Studies 13-14

[15] Contrary to other parameters, such as the prevailing norms in a given context, this triptych has been commonly accepted across multiple jurisdictions as all these three notions are eventually factual indisputable elements. Although there are other contextualizing parameters, such as time, manner etc for the purposes of a coherent analysis this paper will discuss the three factors of space, property and state coercion and their applicability online.

[16] Kal Raustiala, 'The Geography of Justice' [2004] 73 Fordham L Rev; Thomas Schultz, 'Jurisdiction, Legal Orders and the Private/Public International Law Interface' [2008] 19 EJILT 800-801.

[17] Timothy Zick, Speech Out of Doors: Preserving First Amendments Liberties in Public Spaces (Cambridge University Press 2009)

[18] Justice Brennan in New York Times Co v Sullivan 376 U.S. 254 (1964) at 271-272. This introduction of the space metaphor in the free speech jurisprudence is mentioned by Timothy Zick, 'Space, Place and Speech: The Expressive Topography' [2006] 74 Geo Wash L Rev 1754

[19] This point is mentioned by Zick (n 18) 1754.

[20] For an account of the transformation of territoriality in the era of globalization see Alexander Aleinikoff, Semblances of Sovereignty: The Constitution, the State, and American Citizenship (Harvard University Press 2002); M Kahler and B Walter (eds), Territoriality and Conflict in an Era of Globalization (Cambridge University Press 2006); Raustiala (n 16). For an alternative view, note KH Lauder's argument that "[t]he pressure for change under which the political and legal institutions of post‐modern societies are emerging is not produced primarily by globalization processes, but is instead connected with the basic transformation of the economy into the 'knowledge society'", Karl-Heinz Ladeur, 'Globalization and Public Governance: A Contradiction?" in Karl-Heinz Ladeur (ed), Public Governance in the Age of Globalization (Ashgate 2004)

[21] In Reid v Covert Justice Black upheld the strict territorial conception of jurisdiction calling it 'a relic from a different era' - Reid v Covert 354 US 487 (1956) at 12

[22] The US Courts grant constitutional protection relying on a combination of physical presence in national territory and deep ties with the US state. See for example, Johnsons v Eisentrager, 339 US 763 (1950); United States v Verdugo-Urquidez, 494 US 259 (1990). K Raustiala refers to the current legal doctrine of legal spatiality as 'both anachronistic and incoherent' (n 16) 2554-2555

[23] Some notable attempts for such international cooperation have taken place in the past, regarding mostly areas that different jurisdictions find common ground, such as child pornography and xenophobia. In this vein, Kleinwaechter sees an emergence of an intergovernmental soft law in the form of proposed internet principles. Among the examples he uses to demonstrate this are the ten strategic principles suggested by President Obama in May 2011 and the seven principles proposed by the EU Commissioner Neelie Kroes in her 'Internet Compact' in July 2011. W Kleinwaechter, 'Internet Principle Hype: How Softlaw is Used to Regulate the Internet " (http://news.dot-nxt.com/2011/07/27/internet-principle-hype-anon) accessed 10/11/2011

[24] 'The future may also depend on the extent to which the context, approach, institutional structures and common principles will underlie decisions concerning cyberspace and legislation relating to it' Frankel Tamar, 'The Common Law and Cyberspace " ( Boston Univ. School of Law Working Paper No. 01-21. Available at SSRN: http://ssrn.com/abstract=292614 or http://dx.doi.org/10.2139/ssrn.292614 , November 2011) accessed 10/3/2012

[25] Metaphors are generally useful as a legal tool in that they support analogy in legal reasoning. In this case however, applying the space-as-property metaphor online has perhaps imposed our previous notions on a field that was operating regardless of both space and property. See also K Olson, 'Cyberspace as Place and the Limits of Metaphor' (2005) 11 Convergence.

[26] For a report and a case analysis see Yaman Akdeniz, 'Case Analysis Against League Against Racism and Anti-Semitism (LICRA), French Union of Jewish Students v Yahoo! Inc USA, Yahoo! France, Tribunal de Grande Instance De Paris (The County Court of Paris), Interim Court Order, 20 November 2000' [2001] 1 Electronic Business Law Reports. See also J Reidenberg, 'The Yahoo Case and the International Democratization of the Internet' [2001] Fordham Law & Economics

[27] Yahoo! Inc v Law Ligue Contre le Racisme et L'Antisémitisme , 169 F Supp, 2d 1181, 1192 C.N.D. Cal. 2001

[28] The services a DNS provider offers are a valid IP address associated with a specific domain name. In the case of Wikileaks for example, their DNS provider would be responsible for supplying the user with the hexadecimal IP number 88.80.13.160 to each query for http://www.wikileaks.org. Eventually the DNS provider deciphers the long IP numbers to easily remembered web addresses. In the absence of such services, the users can still access the requested page by typing in the full IP address themselves instead of the more memorable websites address.

[29] ccTLD is the acronym for country code top level domain and it is the final part of a web address corresponding to a specific state, for example .com, .co.uk etc. WikiLeaks used the Swiss ccTLD ".ch'

[30] J Wakefield, 'WikiLeaks Struggle to Stay Online' (http://www.bbc.co.uk/news/technology-11928899) accessed 10/03/2012

[31] Name servers (or Domain Name Servers) are servers that help the user reach a requested website. Their task is to match the user's query to a specific IP; essentially name servers associate all IP addresses to user-friendly addresses so that the users will not have to remember the exact IP number of the website they want to reach each time. For more technical details on how DNS works, see J Saltzer and M Frans Kaashoek, Principles of Computer System Design (Morgan Kaufmann 2009) 175-184

[32] J Cowie, 'WikiLeaks: Moving Target' (http://www.renesys.com/blog/2010/12/wikileaks-moving-target.shtml) accessed 10/12/2011

[33] J Cowie (n 32)

[34] On metaphors as a bad idea for cyberspace see D Hunter, 'Cyberspace as Place, and the Tragedy of the Digital Anticommons' (2003) 91 Cal L Rev 439; D Burk, 'The Trouble with Tresspass' (2000) 4 J Small & Emerging Bus L 27; J Koppell, 'No 'There' There: Why Cyberspace Isn't a Place' ( http://www.theatlantic.com/past/docs/issues/2000/08/koppell.htm, August 2000) accessed 10/3/2012. For the opposite view, see D McGowan, 'The Trespass Trouble and the Metaphor Muddle' (2005) 1 JL ECON & POL'Y 109; A Epstein, 'Intel v. Hamidi: The Role of Self Help in Cyberspace?" (2005) 1 JL ECON & POL'Y 147

[35] (http://www.zerogeography.net/2011/11/cyberspace.html) accessed 10/03/2012

[36] Although the internet is not considered as a separate jurisdiction, its idiosyncratic spatiality has been noted by many legal scholars. Its 'borderless' nature has sparked further debate; some argue that current laws are inapplicable online (D Post and D Johnson, 'Law and Borders: The Rise of Law in Cyberspace' 48 Stan L Rev 1367) while others dismiss online anarchy yet still acknowledge the problematic implications cyberspace has in terms of jurisdiction (M Geist, 'Is There a There There? Towards Greater Certainty for Internet Jurisdiction' (2001) 16 Berkeley Tech L J;J Reidenberg, 'Technology and Internet Jurisdiction' (2005) 153 U Pa L Rev)

[37] Mostly to be found in the writings of scholars, such as D Johnson and D Post and early cyber-enthusiasts, such as Mitch Kapor's and J P Barlow's manifestos. See for example, M Kapor and J P Barlow, 'Accross the Electronic Frontier' ( https://w2.eff.org/Misc/Publications/John_Perry_Barlow/HTML/eff.html) accessed 10/3/2012;DG Post, 'Anarchy, State, and the Internet: An Essay on Law-Making in Cyberspace' 1995 JOL art.3 par.1; David G Post and David R Johnson, 'Law in the Virtual World (The Great Debate)" (2006) 11 First Monday; David G Post, 'Against 'Against Cyberanarchy'" (2002) 17 Berkeley Technology Law Journal 1365. For a general discussion on cyber-exceptionalism see Tim Wu, 'Is Internet Exceptionalism Dead? " in B Szoka and A Marcus (eds), The Next Digital Decade - Essays on the future of the Internet (TechFreedom 2010) 163-236

[38] Recent Court rulings show times of increasing disenchantment with the spatial metaphor online. In the Irish case of EMI Records & Others v Eircom Ltd, Mr Justice Charleton described the internet as a mere communicatory means and not 'an amorphous extra-terrestrial body', distancing his ruling from adopting any spatial metaphors. ([2010] IEHC 108, High Court of Ireland (Charleton J), 16 April 2010, at para.9). Similarly, on the other side of the Atlantic, the Supreme Court in California held that the use of Intel's server by a former employee to send emails to his colleagues criticizing the company was not punishable for the tort of trespass (Intel Corp. v. Hamidi, 30 Cal. 4th 1342 (2003)). Accepting the claim for trespass would mean embodying the spatial metaphor to the juridical approach of the internet.

[39] This argument is raised by Zick, who sees public form as an indication of the interrelation between space and property in the First Amendment.T Zick (n 18) 1713.Zick further notes that the First Amendment jurisprudence is built on the conception of place-as-property. T Zick (n 18) 1723

[40] See also J Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (MIT Press 1998); J Habermas, The Structural Transformation of the Public Sphere: Into a Category of Bourgeois Society (MIT Press 1991)

[41] In Appleby the Court admitted that the state has a positive obligation under art 10 to make available public land for nurturing freedom of expression. According to the court "[g]enuine, effective exercise of this freedom does not depend merely on the State's duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals." However, it did not consider such a state obligation in the case of privately owned land. Case of Appleby and Others v.The United Kingdom (Application no. 44306/98 [2003]).

[42] Ark. Educ. Television Comm' n v. Forbes , 523 US 666, 677 (1998) at 678. See also Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 963, 83 L.Ed. 1423 (1939)

[43] Flint v. Dennison , 488 F.3d 816, 830 (9th Cir. 2007)

[44] T Zick (n 18) 1713. See also an excellent analysis on the interplay between private property and public speech in M Ammori, 'Private Property and Public Speech' (http://www.concurringopinions.com/archives/2012/02/private-property-and-public-speech.html, 2012) accessed 10/03/2012

[45] J Balkin, 'Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society' [2004] 52 NY UL Rev 1-55

[46] A recent study by the New York Times Consumer Insight Group has shown that people have the need to share content online for a number of reasons, predominantly so as to foster creative deliberation and enhance their understanding of ideas shared. 'The Psychology of Sharing' Study conducted by the New York Times Consumer Insight Group in association with Latitude Research (http://nytmarketing.whsites.net/mediakit/pos/) accessed 10/03/2012

[47] This shift becomes rather noticeable once we compare the following Presidential remarks: In July 1997 President Clinton had declared internet a 'free trade zone' in an attempt to boost e-commerce (http://clinton4.nara.gov/WH/New/Commerce/remarks.html, accessed 10/03/2012). In February 2012, fourteen years after Clinton's proposition, President Obama unveiled plans for a 'privacy bill of rights' to protect consumers online. (http://www.whitehouse.gov/the-press-office/2012/02/23/we-can-t-wait-obama-administration-unveils-blueprint-privacy-bill-rights, accessed 10/03/2012).

[48] J Grimmelman, 'The Internet is a Semi-Commons' (2010) 78 Fordham L Rev 2799-2800

[49] 'The focus of the policy concerns that have traditionally justified structural media regulation should, at this time, be focused on assuring that the digitally networked environment evolves into a stable system for peer users, rather than towards a system in which commercial producers and passive consumers are the primary players'. Yochai Benkler, 'From Consumers to Users: Shifting the Deeper Structures of Regulation Towards Sustainable Commons and User Access' (2000) 52 Fed Comm LJ 561 579

[50] Max Weber considers this monopoly of the state to use legitimate violence as a necessary precondition for statehood. Max Weber, The Theory of Social and Economic Organization (Free Press 1964)154.The state coercion monopoly is addressed here in a broader sense, following Hayek's viewpoint of accepting that violence is only a form of coercion, the latter consisting of non-violent actions as well (FA Hayek, The Constitution of Liberty (Univ of Chicago Press 1960)135

[51] The power of the state to implement its decisions to restrict one right for the sake of protecting another is noted in Hayek's definition of 'coercion': 'Coercion occurs when one man's actions are made to serve another man's will, not for his own but for the other's purpose' F.A. Hayek (n 50) 20-21

[52] J Barlow, 'A Declaration of the Independence of Cyberspace' (http://editions-hache.com/essais/pdf/barlow1.pdf) accessed 12/12/2011

[53] L. Lessig, Code and Other Laws of Cyberspace: Version 2.0 (Basic Books 2006)

[54] 'The regulator is what I call the 'code' - The instructions embedded in the software or the hardware that makes cyberspace what it is'. L Lessig (n 53) 121

[55] The most striking example for this was in January 1998, when Jon Postel, IANA's Director, redirected more than half name servers to another root zone server. Leaving the technical details aside, what should be noted here is that his action resulted in taking power away from the US government and transferring it to IANA, which at the time was an operating in the Information Sciences Institute in the University of Southern California. See also Milton Mueller, Ruling the Root: Internet Governance and the Taming of Cyberspace (MIT Press 2002) 94-95, 142; David G Post,In Search of Jefferson's Moose : Notes on the State of Cyberspace. (Oxford University Press 2009) 154-155, Jack Goldsmith and Tim Wu, Who Controls the Internet? : Illusions of a Borderless World (Oxford University Press 2006) 29

[56] This 'invisible handshake' between the state and gatekeepers seems to be involved 'in the information environment' in a way which appears to be 'different in various aspects from ownership or regulation previously undertaken by the State' based on national security grounds. M Birnhack and N Elkin-Koren, 'The Invisible Handshake: The Reemergence of the State in the Digital Environment' (2003) 8 Va JL & Tech

[57] Centuries before the internet, Theodore Roosevelt had noticed that 'behind the ostensible governments sits enthroned an invisible government owning no allegiance and acknowledging no responsibility to the people'.

[58] International cooperation was the WSIS 2005 main conclusion, which further facilitated discussions over an online governance model away from the state-centric model

[59] This governance model, described by Milton Mueller as 'stewardship', is currently under discussion. Following the recent denial from the National Telecommunications and Information Administration (NTIA) for ICANN to renew its contract for managing the root zone file, political pressure is now exercised to establish an intergovernmental online governance model by delegating all powers to the UN's ITU. See Milton Mueller, 'Stewardship and the Management of Internet Protocol Addresses' ( http://www.cyberdialogue.citizenlab.org/wp-content/uploads/2012/2012papers/CyberDialogue2012_Mueller.pdf) accessed 15/3/2012; Milton Mueller, 'Our Vaunted Multistakeholder Institutions Spring Into Action' ( http://blog.internetgovernance.org/blog/_archives/2012/3/1/5008119.html) accessed 13/3/2012; R McDowell, 'The U.N. Threat to Internet Freedom " (http://online.wsj.com/article/SB10001424052970204792404577229074023195322.html?mod=WSJ_article_comments#articleTabs%3Darticle) accessed 15/3/2012

[60] Although it is outside the remit of this paper to evaluate the effectiveness and impact of all the models suggested, these developments are mentioned in the light that the state has admittedly lost its monopoly of exercising power online.

[61] This should not be perceived as generating the much discussed debate of whether the online users physically occupy a space or not. Although the relevant discussion is interesting, it takes the focus off the main argument of the paper, which is not about the disparities between physical and digital space (if there are any at all) but deals mostly with the fact that frequently evoked notions of space, property and state power should be seen through the digital lens when dealing with free speech online.

[62] For such an approach suggesting creating a Bill of Rights for Cyberspace, see Fr Musiani, 'The Internet Bill of Rights: A Way to Reconcile Natural Freedoms and Regulatory Needs?" 6 SCRIPTed: A Journal of Law, Technology and Society; D Casacuberta, M Senges and JM Duart, 'Privacy and the need for an Internet Bill of Rights: Are there new rights in Cyberspace?" (Paper presented at the GigaNet Second Annual Symposium, Rio de Janeiro, Brazil, November 11, 2007); D Casacuberta and M Senges, 'Do We Need New Rights in Cyberspace? Discussing The Case of How to Define On-Line Privacy in an Internet Bill of Rights' (2008) [4] Enrahonar 99

[63] J Palfrey and J Zittrain, 'Better Dara for a Better Internet' (2011) 334 Science 2 1210-1211

[64] J Palfrey and J Zittrain, 'Better Dara for a Better Internet' (2011) 334 Science 2 1210-1211

[65] 'Context relative informational norms function descriptively when they express entrenched expectations governing the flows of personal information, but they are also a key vehicle for elaborating the prescriptive (or normative) component of the framework of contextual integrity'. Helen Nissenbaum, Privacy in Context: technology, Policy and the Integrity of Social Life (Stanford University Press 2009) 129

[66] 'contextual integrity is defined in terms of informational norms; it is preserved when informational norms are respected and violated when informational norms are breached' Nissenbaum (n 64) 140

[67] Similar views have also been expressed in Karl-Heinz Ladeur, 'Toward a Network Oriented Law of the Internet! The Necessity to Find a New Balance between Risk and Opportunity in Network Communication' (2009) 10 German Law Journal 1201.In the same vein, Vaios Karavas introduces the concept of digital integrity: he refers to 'technodigital normativity', namely a mixture of digital expectations and norms, which need to be protected by constitutional rights online. See V Karavas, 'The Force of Code: Law's Transformation Under Information Technological Conditions' (2009) 10 German Law Journal 463-481. See also Ch Graber, 'Internet Creativity, Communicative Freedom and a Constitutional Rights Theory Response to 'Code is Law' " (2010) 3 i-call Working Paper

[68] Nissenbaum bases her concept of 'contextual integrity' on Walzer's pluralist theory of justice, namely that societies consists of numerous social spheres each pursuing a different social end. Nissenbaum (n 64) 190.

[69] Phillip Selznick, 'Law in Context Revisited' 30 Journal of Law and Society 179 at 181

[70] Phillip Selznick, 'Law in Context Revisited' 30 Journal of Law and Society 179 at 181

[71] Phillip Selznick, 'Law in Context Revisited' 30 Journal of Law and Society 179 at 184

[72] For a more detailed account on responsive law, see Ph Nonet and Phillip Selznick, Law and Society in Transition: Toward responsive Law (Octagon Books 1978)

[73] Phillip Selznick, 'Law in Context Revisited' 30 Journal of Law and Society 179 at 186

[74] As Robert Eli Rosen notes 'For Selznick, what tests actions is the realization of values, not legitimacy'. R E Rosen, 'Endogeneity and Its Discontents: Teubner and Selznick on Legal Pluralism' (2008) 9 Theoretical Inquiries in Law Forum 54

[75] V Cerf and R Kahn, 'What Is the Internet (And What Makes It Work)" in M Cooper (ed), Open Architecture as Communications Policy: Preserving Internet Freedom in the Broadband Era (Center for Internet and Society, Stanford Law School 2004)

[76] Lawrence Lessig, 'The Architecture of Innovation' (2002) 51 Duke L J 1789

[77] B Carpenter, 'Architectural Principles of the Internet " (1996) Network working Group Request For Comments (RFC 1958)

[78] Lawrence Lessig, 'Symposium: Cyberspace and Privacy: A New Legal Paradigm?" (2000) 52 Stanford Law Rev 991

[79] F Bar and G Sandvig, 'Rules From Truth: Post-Convergence Policy for Access' (Paper presented at the 28th Telecommunications Policy Research Conference (TPRC) on Communication, Information and Internet Policy, (2000) Alexandria, Virginia, USA )22

[80] For an account of papers touching on the general link between free speech and the internet architecture see RSR Ku, 'Open Internet Access and Freedom of Speech: A First Amendment Catch-22' (2000) 75 Tul L Rev 87; Lawrence Lessig, 'What Things Regulate Speech: CDA 2.0 vs. Filtering' (1998) 38 Jurimetrics J 629

[81] 'The fact that layer violating regulations damage transparency combined with the fact that Internet transparency lowers the cost of innovation provides compelling support for the principle of layer separation: public Internet regulators should not violate or compromise the separation between layers designed into the basic architecture of the Internet'. L Solum and M Chung, 'The Layers Principle: Internet Architecture and the Law' (2003) Public Law Research Paper No. 55 U San Diego 52

[82] 'This principle of the initial internet should guide the government in evaluating changes to the internet's architecture, or acquisitions that threaten to change this effective architecture' Lawrence Lessig and M Lemley, 'The End of End-to-End: Preserving the Architecture of the Internet in the Broadband Era' (2001) 48 UCLA L Rev 971

[83] J Chen, 'Conduit Based Regulation of Speech' (2005) 54 Duke L J 1454

[84] Yet, as Tim Wu notes, this freedom of choice can be seemingly wide as corporations nowadays act as informational monopolies dominating the markets online. For more see Tim Wu, The Master Switch: The Rise and Fall of Information Empires (Knopf 2010)

[85] For a comparison of the decentralized open access model of the internet to the closed one way centralized models of broadcasting/cable systems see J Berman and D Weitzner, 'The Democratic Heart of the First Amendment In the Age of The Interactive Media' (1995) 104 The Yale Law Journal 1622-1629

[86] J Berman and D Weitzner, 'Abundance and User Control: Renewing the Democratic Heart of the First Amendment in the Age of Interactive Media' (1995) 104 Yale LJ 1619, 1624, 1999

[87] SD Warren and LD Brandeis, 'The Right to Privacy' [1890] Harv L R 193-220

[88] For an overview and supportive argumentation for acknowledging such a right see V Mayer-Schoenberger, Delete: The Virtue of Forgetting in The Digital Age (Princeton University Press 2009). For an alternative view regarding this right as a substantial element to a broader right to online identity see P.A. Bernal, 'A Right to Delete?" (2011) 2 EJLT

[89] (http://www.zdnet.co.uk/news/security/2012/02/22/eu-puts-google-straight-on-right-to-be-forgotten-40095097/?s_cid=938) accessed 10/03/2012

[90] Ed Vaizey mentions the example of EU data stored in cloud computing and wonders how this could play out with the 'right to be forgotten'. (http://www.theregister.co.uk/2011/11/15/right_to_be_forgotten_might_not_be_enforcable/) accessed 12/12/11. In any case, one thing is certain: implementing such a right would entail a significant cost for corporations.

[91] Charles Arthur in Guardian reports that '97% of Google's revenue comes from serving ads' , Ch Arthur, 'The End of Online Privacy' ( http://www.guardian.co.uk/technology/2012/feb/28/the-end-of-online-privacy) accessed 10/3/2012.

[92] For more examples and an accurate account of ICTs cooperating with repressive regimes see Th Halvorssen, 'Tyrants and Technology: How Western Mercantilism Leads to Censorship and Dissapearances " (http://www.forbes.com/sites/thorhalvorssen/2011/12/29/tyrants-and-technology/) accessed 10/3/201.

[93] WikiLeaks, 'Toxic Shame: Thousands injured in African City' ( The Independent, http://wikileaks.org/wiki/The_Independent:_Toxic_Shame:_Thousands_injured_in_African_city,_17_Sep_2009) accessed 10/3/2012.

[94] People involved in the industry appear to have a better understanding of these issues. See for example, the Google's privacy counsel's account on how 'a right to be forgotten' could potentially amount to online censorship (http://peterfleischer.blogspot.com/2011/03/foggy-thinking-about-right-to-oblivion.html) accessed 10/12/11.

[95] The intellectual property legislative model that relies on the ability to block access online to any user, who is repeatedly found to be exchanging copyright infringing material online, has now been incorporated in a series of internet related Acts, such as the Digital Economy Act in the UK, the HADOPI Law in France or the Anti-Counterfeiting Trade Agreement to name a few.

[96] www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf) accessed 10/12/11

[97] Ch Ahlert, Ch Marsden and Ch Yung, 'How 'Liberty' Disappeared from Cyberspace:The Mystery Shopper Tests Internet Content Self-Regulation " ( http://pcmlp.socleg.ox.ac.uk/sites/pcmlp.socleg.ox.ac.uk/files/liberty.pdf)

[98] See also the suggested amendment to the Digital Millennium Copyright Act by Public Knowledge penalizing for bogus takedowns, i.e. requests where online content is knowingly or recklessly misrepresented as copyright infringing material. The suggested draft entitled 'A Bill to modernize and enhance intellectual property laws, and for other purposes' calls the Government to 'modernize and enhance intellectual property laws', which appears to be complementing ideally the digitization of our conventional approach suggested by the present paper (http://internetblueprint.org/sites/default/files/Strengthening%20and%20Improving%20DMCA%20Safe%20Harbors%20Act.pdf) accessed 10/03/2012.

[99] Term coined by Mike Masnick in his Techdirt article entitled 'Since When Is It Illegal to Just Mention a Trademark Online?" (http://www.techdirt.com/articles/20050105/0132239.shtml) accessed 10-11-11.

[100] One could further draw some similarities to the British 'super-injunction' case of 2011. This injunction obtained by a famous British footballer that the media should not disclose his name on their reporting his involvement in an extramarital affair, led to the opposite result; his name was leaked on twitter and online visits to this platform reached a record number. For a relevant graph see Dan Sabbagh's article 'Twitter and the Mystery Footballer', in Guardian, available online: (http://www.guardian.co.uk/technology/organgrinder/2011/may/20-teitter-superinjunctions) accessed 11-12-11.

[101] See Lawrence Lessig, The Future of Ideas : The Fate of the Commons in a Connected World (Random House 2001) ; Y Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (Yale Univ Pr 2006).

[102] Y Benkler (n 100) 57

[103] Digital Rights Management

[104] See for example the FIPR's Consultation Response on DRM, which mentions Hal Varian's concerns that a strong DRM system can lead to monopolies in the platform industry and as such can be more beneficial for the online corporations building platforms for accessing content, rather than for the publishing industry selling it. (http://www.fipr.org/APIG_DRM_submission.pdf) accessed 11-12-11. In the same vein, Weiser suggests an intellectual property model which ranges between commons and proprietary policies, depending on the levels of concentration of power in the informational industry Philip Weiser, 'The Internet, Innovation and Intellectual Property Policy' [2003] 103 Colum L Rev 534-613

[105] D Trossen, M Sarela and K Sollins, 'Arguments for an Information- Centric Internetworking Architecture' (2010) 40 ACM SIGCOMM Computer Communication Review

[106] (n 104) 28

[107] (www.torproject.org)

[108] The concern expressed by some that this could be potentially problematic to privacy in terms of unauthorized dissemination of confidential information can also be addressed by resorting to digitization of the current legal approach. In this vein, architecture the informing relevant legislation actually resolves the issue and helps with balancing without the need to promote one right over the other. Namely, encryption can promote free speech against the chilling effects of surveillance and at the same time it can ensure a certain level of privacy for the user and her data online.

[109] Neil Weinstock Netanel offers a relatively similar approach to the one suggested in this article. In applying online Jerome Baron's contextual approach of the First Amendment, Netanel discusses the clash between free speech and intellectual property online and concludes in harnessing copyright law to further First Amendment values online. N Weinstock Netanel, 'New Media in Old Bottles? Barron's Contextual First Amendment and Copyrights in the Digital Age' (2008) 76 The George Washington Law Rev 952-985

[110] Professor Joel Reidenberg in the Voice of America on 1-2-2011 (http://www.vianews.com/english/news/In-Madrid-Court-Google-Challenges-Europes-Privacy-Laws-110512364.html) accessed 11-12-11

[111] It is important to note that the concept of digitization introduced in this paper highlights the need to respect and embrace the main structural elements of the net architecture. It is thus suggested that the core architectural principles, upon which the internet is designed, should inform the reading of internet-related legislation. That said, the potential to embed certain values in this architecture by means of altering some of its features, is a different matter altogether, which however is not further addressed here. For more on this see Geoffrey R. Stone, 'Privacy, the First Amendment, and the Internet " in M Nussbaum and S Levmore (eds), The Offensive Internet: Speech, Privacy and Reputation (Harvard University Press 2011) 177-194

[112] The Domain Name System Security Extension (DNSSEC) is designed to protect the user from DNS attacks. By adding data integrity protection and data origin authentication it helps the user trace DNS attacks. For more information and technical details on DNSSEC see RFC 2535 and Miek Gieben, 'DNSSEC: The Protocol, Deployment and a Bit of Development' (2004) 7 The Internet Protocol Journal (http://www.cisco.com/web/about/ac123/ac147/archived_issues/ipj_7-2/dnssec.html) accessed 10/2/2012

[113] (http://arstechnica.com/tech-policy/news/2011/11/at-web-censorship-hearing-congress-guns-for-pro-pirate-google.ars) accessed 10/03/2012

[114] Stewart Baker 'Will Jeff Bezos Bring Feudal Security to the Net?" (http://volokh.com/2011/10/01/will-jeff-bezos-bring-feudal-security-to-the-net/) accessed 10/03/2012

[115] This shift in the architecture from end-to-end communication to a central platform controlled by gatekeepers is also evident in other cases, termed as 'the algorithmic gatekeeping'. For an overview see M Ingram, 'The Rise of the New information Gatekeepers' ( http://gigaom.com/201111/12/01/the-rise-of-the-new-information-gatekeepers/) accessed 10/3/2012

[116] Another recent example is the rather unfortunate case in the UK of taking down a music blog with American domain name (rnbxclusive.com) via SOCA, the Serious Organized Crime Agency for copyright infringement (http://www.techdirt.com/articles/20120214/11083717758/uk-now-seizing-american-websites-over-copyright-claims.shtml) accessed 14/3/2012

[117] Scarlet Extended SA v Société Belge des Auteurs, Compositeurs et Éditeurs (SABAM), ECJ C-70/10 at 52

[118] (http://p2pfoundation.net/Freedom_Box) accessed 10/03/2012

[119] (http://www.freedomboxfoundation.org/) accessed 10/03/2012

[120] According to their first online post in their Kickstarter campaign in 2010 explaining what their project Diaspora* is about, the founders of this project admit having been influenced by Eben Moglen's speech 'Freedom in the Cloud' on May 2010 in an ISOC-NY event. M Salzberg and others, 'Decentralize the Web with Diaspora - Kickstarter' ( Kickstarter, http://www.kickstarter.com/projects/196017994/diaspora-the-personally-controlled-do-it-all-distr)

[121] (http://blog.diasporafoundation.org/2011/12/07/diaspora-is-back-in-action.html) accessed 10/03/2012

[122] (http://it.slashdot.org/story/12/03/04/0510229/) accessed 10/03/2012

[123] For a brief informative account of such initiatives, see N Pinto, 'Rise of the Facebook-Killers " ( http://www.villagevoice.com/2012-02-15/news/the-facebook-killers/) accessed 12/3/2012

[124] (www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session19/FOEAndInternetHRCConceptNote.doc) accessed 10/03/2012

[125] (http://www.ip-watch.org/2012/02/29/un-human-rights-council-rallies-on-right-to-internet-freedom-of-expression/) accessed 10/03/2012