Online freedom of
expression : human rights and exceptions.
There are numerous
Human rights conventions, including the global and the regional ones.
For example the UN's Declaration and that of the European Convention
on Human Rights (UNDHR & ECHR).The signatory parties are obliged
to respect certain restrictions on the State power to regulate
certain aspects of the their citizens' behaviour. The theorist Prof.
Eric Posner suggested in his book "Twilight of Human Rights"
that Authoritarian states do so as it establishes a patina of
respectability in the international community while the more Liberal
states believe their own constitutional freedoms are equivalent to
their convention obligations and regard it is a pro-forma exercise.
As with any of the convention articles, there are very few absolute
rights contained within. The signatory documents as well contain
numerous exceptions. For instance the ECHR places express limitations
in Articles 8-11.
Thus concentrating on
one of these rights: Freedom of expression. This has been held as
being a right that "constitutes one of the essential freedoms
foundations of a democratic society" - Handyside v UK 1976. One
question though is how Freedom of expression is regulated in an
online environment from the perspective of Authoritarian and Liberal
Jurisdictions. In each case, other rights have been forwarded as a
reason to restrict this. For instance, according to Prof. Tim Wu in
"Who controls the Internet", China justifies speech
restrictions with a mixture of justifications drawn from the needs of
state security and that the social good requires a stable society
which is the basis of a functional economy. Whilst Liberal nations
may not stress the security aspect, they as well base restrictions on
the need of the greater social good. As Wu mentioned, France expanded
considerable resources against Yahoo to prevent Nazi related material
(illegal under French law) being sold in that Country in the early
days of the Internet. At a Convention level, the main case in
imposing limitations of expression is Gunduz, where freedom of
expression in (for instance in incitement to hatred) was upheld as
this was deemed to be contra societal good.
However, as authors
such as Jacobs (author of the text "European Convention on Human
Rights") mentioned that there were qualifiers. One being context
as per Jersild (if it were part of a media discussion) and in
another if it were part of a political speech, as per Surek
(albeit this was a split decision). These seem to suggest that
limitation is possible in both circumstances but these would need to
reach a fairly high bar for the authorities to prove that this was
the case.
As
well and for ECHR rights in general, the restrictions must be ones
authorised by the convention and "shall not be applied from any
other purpose other than those for which they have been prescribed".
The conclusion from Jacob's seems to be that the court would frown on all but the narrowest restrictions on rights but this being very fact
specific depending on the case. Hence there is a difficulty establishing hard and fast rules.
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