Speech Across Borders

Abstract

As both governments and tech companies seek to regulate speech online, these efforts raise critical, and contested, questions about how far those regulations can and should extend. Is it enough to take down or delink material in a geographically segmented way? Or can and should tech companies be ordered to takedown or delink unsavory content across their entire platforms—no matter who is posting the material or where the unwanted content is viewed? How do we deal with conflicting speech norms across borders? And how do we protect against the most censor-prone nation effectively setting global speech rules? These questions were recently addressed in two high-profile judgments from the European Court of Justice and were the subject of ongoing litigation that pitted Canadian and U.S. courts against one another. Meanwhile, a new form of geographically-segmented speech regulation is emerging—pursuant to which speech is limited based on who is speaking and from where, as opposed to what is being said.

This Article examines the ways in which norms regarding speech, privacy, and a range of other rights conflict across borders, the power of private sector players in adjudicating and resolving these conflicts, the ways in which governments are seeking to harness this power on a global scale, and the broader implications for individual rights. It offers a nuanced approach that identifies the multiple competing interests at stake—recognizing both the ways in which global takedowns and delistings can, at times, be a critical means of protecting key interests, and the risk of over-censorship and forced uniformity that can result.

Keywords: Speech Regulation, Content Moderation, Tech, Law, Internet, International Law, Comity, Conflict of Laws