European Journal of Law and Technology, 2012
38 Pages Posted: 24 Jun 2012
Date Written: April 26, 2012
This paper argues that our conventional approaches regarding the right to free speech seem outdated when applied online. While context plays a key part in free speech jurisprudence, law appears somehow non responsive to the digital context. To draw this conclusion, the free speech architecture of two jurisdictions is closely examined: Despite their ostensible differences, the First Amendment and the article 10 ECHR seem to have developed a common legal mechanism regarding the protective scope of the right to free speech.
In particular, they both define the right’s contours by adjusting its permissible limits within a given context. Ultimately, the two jurisdictions perform a balancing act in order to outline the level of protection reserved for this right. The paper traces and analyzes three of the most frequently evoked balancing parameters: space, property and state coercion. Eventually, it is demonstrated that all these three parameters are challenged in cyberspace; as a result they seem to be of little help for balancing online speech.
The paper therefore suggests adopting a new approach; digitizing our conventional human rights as the proper way of striking a fair balance for online free speech and ultimately placing rights in the appropriate context.
Keywords: free speech, internet, digitization, balancing rights, contextualization
JEL Classification: K00, K10, K20, K30
Suggested Citation: Suggested Citation
Karanasiou, Argyro, Respecting Context: A New Deal for Free Speech in the Digital Era (April 26, 2012). European Journal of Law and Technology, 2012. Available at SSRN: https://ssrn.com/abstract=2089807