Internet, Freedom of Speech and Slippery Slope Argument – The Case of the ‘Right to Be Forgotten’

Abstract

Eugene Volokh, a renowned advocate of protection of free speech close to absolute, admits that: “In some instances, it may be quite unlikely that certain speech would be useful to the listeners either for political purposes or for daily life purposes; this largely has to do with information that shows people in ridiculous, embarrassing, or demeaning contexts without revealing any useful new information about them”. However, the danger of enlarging the category of such “useless” and hence unprotected speech is so great that “[t]his risk may be enough to abandon the test altogether”. Although claiming to make an effort to avoid the slippery slope argument of the sort "today this speech restriction, tomorrow the Inquisition" in his paper, Volokh does exactly that. Slippery slope arguments are however slippery themselves: if any limits of freedom of speech are simply too dangerous to be accepted, why not call for tearing down the copyrights, or law prohibiting deceptive commercial speech? What is more, in societies where dignity and privacy are fundamental rights protected on the equal standing with freedom of speech, the danger of a ‘freedom of speech slippery slope’ can be contrasted with the danger of a ‘privacy or dignity slippery slope’. Given that both of these arguments have equally persuasive logic behind them, what is absolutely necessary for one of them to prevail is to put forward some kind of convincing reason for the probability of slippage in one direction or another.

In my paper I would like to demonstrate the double sided nature of slippery slope arguments taking as an example the case of internet speech. My claim is that the advocates for unlimited protection of speech on the internet, through ‘where do you draw the line?’ argument, develop a rather one-sided vision of potential consequences of limiting online speech. In order to fully grasp these consequences one should also consider what is lost if no such limits are drawn: especially so in terms of other values promoted by the European legal system, like privacy or dignity. What is thus worth considering is where the free speech line is drawn by law and how the courts redraw it in the view of development of internet communication: is there any convincing reason why internet makes arriving at the bottom of one or another slope more likely? The case study for these questions will be the so called right to be forgotten: the measure for protection of online privacy of the EU citizens recently introduced in the case law of the Court of Justice of the European Union (CJEU).

Keywords: Freedom of expression, privacy, data protection, legal reasoning, balanicing, slippery slope argument