Respecting Context: A New Deal for Free Speech in the Digital Era

Abstract

This paper argues that our conventional approaches regarding the right to free speech seem outdated when applied online.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