Balancing Privacy, Data Protection and Free Speech Online
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Course
Internet Law
Institution
London School Of Economics (LSE)
Book
Information Technology Law
These notes introduce two key philosophies underpinning freedom of expression, including freedom of expression online. The US philosophy, 'the marketplace of ideas', envisages minimal governmental intervention in order to preserve freedom of thought, autonomy and democratic speech. The European phi...
Week 9:
Lecture:
Balancing Privacy, Data Protection and Free Speech:
Cyberspeech: Overview:
- Freedom of Expression Online
o The Web as a Free Speech Facilitator
o The Competing Philosophies governing Online Free Speech
- Balancing Privacy and Free Speech
o The Use of ‘Superinjunctions’
o Defamation
- Balancing Data Protection and Free Speech
o The GDPR Balance
o The ‘Right to be Forgotten’
Freedom of Expression Online:
Traditional Forms of Speech:
- Movement from unmediated, to mass communication, to everyone
- Unmediated Person to Person
o Only available in small groups/audiences
o Only possible in direct contact
- Mass Communication - extended speech, but not available to everyone.
o Mediated
o Not available to individuals
o Expensive for people to have a media backing
- Web 1.0: The Unidirectional Web
o Extension of mass communication model to the internet
o Capacity for personalised communications
Allowing everyone to address the world
Earlier web wasn’t user centric - but another shift to the Web 2.0:
Web 2.0: The Interactive Web:
- Give media distribution ability to those who would not previously have had a voice
- Reactively not proactively moderated.
o Unlike journalism
Both a benefit and a bust of freedom of expression
- Gatekeeper role is transformed
- Unique challenges for the Freedom of Expression
Legalities:
- Starting point for the European approach [not MS, but all 49]- ECHR- International Treaty that applies to states- doesn’t
apply directly to private actors.
o After Brexit, still applicable in the UK:
The European Approach: Art.10 ECHR:
- No.1 is always the general provisio
o 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to
receive and impart information and ideas without interference by public authority and regardless of frontiers.
This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
Question 1: is there an interference with this provision? Then proceed onto justification- can we justify this
interference?
- Justifications:
o 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic
society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or
crime, for the protection of health or morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of
the judiciary.
Prescribed by law- clear to people- RoL
Some restrictions on speech can be justified in pursuit of a democratic society.
In the UK, we permit restrictions to speech in certain circumstances
And need to judge these justifications to see if they warrant permission
The European Approach: Exceptions:
- UK: Laws which restrict speech which is homophobic, racist, religiously intolerant, obscene etc
o Chanders - material that may incite fear in others- controversial case
- Germany: Laws which prohibit holocaust denial
, - Ireland: Recent removal of Constitutional prohibition on blasphemy!
Contrast w/ the US:
First Amendment Approach: USA:
- ‘Congress shall make no law (…) abridging the freedom of speech, or of the press …’
o Has been interpreted incredibly broadly by the US courts
o Argumentative showstopper- so few limits to free speech, the argument stops there upon invoking it
Spam, political campaigns, commercial advertising- all forms of free speech
Exceptions to the First Amendments:
- Those that can incite violence
o ‘Obscene Speech
Very little under this though
o Fighting words
o True threats
o Incitement to immediate lawlessness
- Exceptions are limited
Relevance to us:
- Which standard do you think is better? Which should prevail on the internet which is a shared forum. Or should we go back
to local internet? Content reflecting national laws- is this a problem?
Common denominators:
- [Between the two approaches]
- Objectives of US ‘policy towards hate speech are the same as those pursued elsewhere: promoting tolerance and discrediting
ideas and theories that devalue people because of their sex, race, religion or nationality’. (Vick, Regulating Hatred)
o The end game is still the same
- Free speech as:
o A necessary condition for democratic self-government
o A prerequisite for individual self-development and autonomy
‘First amendment jurisprudence- you need free speech for personal development- to speak your mind and
grow as a person
- But how are these objectives best achieved?
o This is where they differ- same goal, but how do we get there?
The Free Market of Ideas:
- Whitney v California 274 US 357 (1927), 376
o ‘Those who won our independence […] knew that […] the path of safety lies in the opportunity to discuss freely
supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones. Believing in
the power of reason as applied through public discussion, they eschewed silence coerced by law -- the argument of
force in its worst form’
Didn’t want to force silence
Adversarial legal system approach
Everyone should be able to speak their views freely - not the role of the law to coerce silence
The best ideas will prevail on the marketplace on ideas
The free markets of ideas: Virtues:
- State suppression of speech violates the ‘sanctity of individual choice’ and is an affront to the dignity of the individual
(Schauer).
- Not clear that sexism, racism, homophobia or religious intolerance are a bigger issue in the US than the UK (Vick).
o He said this 10 years ago- arguing that there is no empirical evidence
- Neat lines between acceptable and unacceptable speech are elusive.
- Drawing lines will lead to a majority rule situation?
o Most prominent argument
o Difficult to draw the line between offensive speech [permissible] and illegal speech [non-permissible]
The Free Market of Ideas: Pitfalls:
- The ‘cacophony of speech’ (Murray)
o Free speech on the internet doesn’t resemble free speech IRL
o People speaking over each other
o Now people going into their bubbles on the internet- unlike a judge who has to listen to all sides of an argument,
people may not even listen to the argument opposing them
Market failures?
- Certain speech offends and stigmatises its targets and in the longer term may desensitise others to messages imputing racial
or religious inferiority (Canadian Supreme Court, R v Keegstra, 1990)
o More hardline
o Important in terms of signalling to spell out that certain speech= harmful
- Do politically extremist and anti-democratic messages preserve and promote democracy?
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