Sovereignty and Liberty in the Internet Era

Abstract

The global revolution in communications technologies and services is breaking apart the historic relationship between the media and the state. That relationship, born in the early print era, was first framed by the territorial authority of sovereigns and later found new legitimacy in the rise of popular sovereignty, thus becoming a definitive feature of the modern liberal democratic state. For centuries, states have been adapting to new communications technologies and seeking to re-impose their territorial boundaries on the flow of information and ideas, but this has required ever increasing technological inventiveness and financial investment. In the internet era, the state’s capacities to control its public information environment are being tested to exhaustion.

Supranational constitutionalism, inspired by European achievements, is widely seen as the answer to the waning of state capacity and authority. In the sphere of public expression, constitutionalised treaty-based rights and obligations are now thought to provide a bedrock of common principles for governing speech concerning public affairs, public figures and public institutions. In this transition to supranational authority, the sovereignty of the state over its national public information environment is necessarily shared, pooled or even dispersed. This paper argues however that constitutionalised supranational law, even when leavened with legal and political pluralism, is incapable of addressing the key problems of public expression for democratic as well as non-democratic states. Supranational judicial processes, in particular, have produced legal doctrines and principles for public expression that are both too thin and too thick to replace the beleaguered but better suited political and judicial forums of the state.

The failure of supranational constitutionalism to provide a workable common understanding of freedom of speech underscores the deep uncertainties of present times. State and supranational regimes are muddling along together in the recognition that traditional notions of sovereignty in the state are fading but without convincing conceptual or practical alternatives. Both national and supranational forms of authority are also being cross-cut and undermined by the rise of global networks, which are not just flooding the world with digitised information and ideas, but are also fostering new forms of community and association. The latter however are created out of participant choice and are largely formed within and by globalised commercial services. Their capacity for inclusive collective agency is limited and their bias towards instrumental, market based understandings of free speech is structural.

This paper does not advocate a particular liberal democratic model for the media state relationship generally or specific solutions to the key problems of harm and offence in public speech. Instead, it shows the primary importance of community, locality and collective agency in finding solutions to the challenges of public expression. While we are collectively and inevitably assaulting the weakened territorial bounds of the media state relationship, we have no replacement for its capacity to resolve problems of harm and offence: hence the continuing vitality of bonded territorial and popular sovereignty in delivering freedom of speech in the internet era.