Respecting Context: A New Deal for Free Speech in the Digital Era
The paper examines the protection reserved for free speech online and highlights the need to reiterate our conventional approaches in the light of digitisation. Namely, it is suggested that free speech adjudication should take into account the specific architectural traits of the internet, hich are dominant in the digital context. This will enable a better understanding of free speech in the digital era and will provide proper guidance for deciding the right's trade-offs iwth competing rights online.
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 in both sides of the Atlantic. It then goes further and highlights the strong links between context and free speech adjudication more specifically. To raise this point the paper uses examples from the ECHR and the First Amendment jurisdiction. 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 as to 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 Furthermore it is illustrated that not only are the factors of space, property and state coercion outdated online but they are in fact misplacing free speech in the wrong context.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 those old juridical tools seems to be over-restricting for free speech, while it does not necessarily provide adequate protection to other competing rights, like privacy and intellectual property. The final section of the paper suggests an alternative view to our conventional approach as a means of offering adequate protection for free speech online: digitisation. 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.
Digitisation 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 and respond to this context. In a way it could be argued that digitisation 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 digitised so as to eventually determine a fair trade-off for free speech in this digital context.
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