Speech Across Borders

Posted: 25 Jun 2019

See all articles by Jennifer C. Daskal

Jennifer C. Daskal

American University - Washington College of Law

Date Written: February 21, 2019

Abstract

As governments increasingly seek to regulate speech online, these effort raises critical, and contested, questions about how far those regulations can and should extend. Is it enough to delink or delist material in a geographically segmented way, or are global delinking and takedown orders required to protect the underlying interests at stake? These questions are currently being posed in two high-profile disputes now before the European Court of Justice and in ongoing litigation that has pitted Canadian and U.S. courts against one another. Meanwhile, a new form of geographically-segmented speech regulation is emerging — pursuant to which governments are seeking to limit foreigners’ speech.

This Article examines the ways in which norms regarding speech, privacy, and a range of other rights conflict across borders and examines the implications for territorial sovereignty and prospects for democratic control. It details 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 need for global takedown or delisting decisions to sufficiently protect key interests, and the risk of over-censorship and forced uniformity that can result. And it suggests new forms of accountability to reflect the shifting power structures and decreasing relevance of borders online.

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

Suggested Citation

Daskal, Jennifer C., Speech Across Borders (February 21, 2019). Virginia Law Review, 2019. Available at SSRN: https://ssrn.com/abstract=3407716 or http://dx.doi.org/10.2139/ssrn.3407716

Jennifer C. Daskal (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States
202- (Phone)

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