Private Regulation and Public Policy: Toward Effective Restriction of Internet Hate Propaganda
Jane Bailey, "Private Regulation and Public Policy: Toward Effective Restriction of Internet Hate Propaganda", 49 McGill Law Journal 59, 2004
53 Pages Posted: 15 Jun 2013
Date Written: 2004
Internet hate propaganda revives debate regarding competing visions of freedom of expression and democracy -- pitting the unregulated marketplace of ideas vaunted in US First Amendment jurisprudence on racist speech against approaches such as Canada's, which envision a role for the state in limiting de-liberating exercises of private power unchecked by the marketplace itself. Despite the relative ease with which Internet hate propagandists may shift the "location" of their message to First Amendment-protected servers in the US, national and international public regulation of hate propaganda have not outlived their usefulness. Existing private restriction of hate propaganda may assist in resisting First Amendment hegemony, but is not an adequate substitute for protecting fundamental national and international commitments to equality and diversity. The practical drawbacks of many private enforcement mechanisms are compounded by policy concerns underlain by a record of the private market's inadequacy in ameliorating the conditions of historically disadvantaged groups. Certain of these drawbacks might be alleviated through continuing expressions of policy pursuant to public regulation aimed at guiding private regulation and imbuing it with a degree of transparency and accountability. In the long term, creation and monitoring of an Internet Service Provider ("ISP") model code of conduct by a respected international body, such as the United Nations, might assist in more systematically harnessing private action in service of public human rights objectives.
Keywords: internet, hate propaganda, first amendment US, freedom of expression, regulation, democracy
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