Judicial Balancing of Human Rights Online

Abstract

This chapter addresses questions regarding the judicial balancing of competing rights and values online. To set the stage, it introduces the conceptual framework of judicial balancing in the digital age, providing the necessary definitions, and exploring the nature of judicial framing and why such a concept is crucial to understand why judicial balancing that involves the same rights can lead to a different result.In the second part of this chapter, the authors explore the polynomial components of the ‘balancing equation’ that courts have to solve in the digital age: namely, the various conflicting human rights as well as public and private interests that courts attempt to reconcile. This part is not inherently an all- encompassing guide to human rights online, but is instead a snapshot highlighting the areas of concern and the current and future challenges facing the judicial system. Before reaching a conclusion, the authors move on to an examination of several case studies, exploring the case-law of the Court of Justice of the European Union (CJEU), the European Court of Human Rights (ECtHR), and the US Supreme Court, and underlining differences in the approach taken by these influential courts.

Keywords: Human Rights