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Free Speech Online and the Fragile Equilibrium: Towards Digitization of Human Rights
Argyro P. Karanasiou1

“I was myself last night, but I fell asleep on the mountain, and they’ve changed my gun, and everything’s changed, and I’m changed, and I can’t tell what’s my name, or who I am!” “The Sketch Book” (1819), Washington Irving

Abstract: The paper argues that our conventional approaches regarding the right to free speech seem outdated when applied online.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

Keywords: Free speech, Cyberspace, Balancing Act, Spatiality, Property, Digitization of Human Rights

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Introduction

© 2011 Argyro P. Karanasiou. PhD researcher at the Center for International Governance (CfIG) University of Leeds (lwak@leeds.ac.uk). The author would like to thank Professor Ian Cram for his valuable comments on previous drafts for this paper. Any errors or omissions remain the sole responsibility of the author.

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Having slept for twenty long years, Rip Van Winkle –Washington Irving‘s fictitious character- wakes up in a new dawn. A stranger among strangers, he returns to his village unable to find a point of reference; his outdated concepts can no longer be associated to this new environment he finds himself in. Tremendous changes have taken place during these twenty years; what had seemed to him as a night‘s sleep was indeed a long period of turmoil, revolution and change. Law in the digital era seems to resemble this archaic figure of Rip Van Winkle in many accounts; while trying to catch up with the technological advancements of today it still maintains its outdated legal approaches. Ever since its inception, the internet has been a synonym for change. In many ways it has proven to be a distorting mirror for reality, offering a virtual alternative. Law has been no exception to this as it has not remained intact in the digital era. In what follows it is argued that the certain judicial structures employed to give shape to the exercise of judicial rulings are found to be reflecting understandings which may no longer hold online. The paper‘s center of gravity is to be found in exactly this argument: that our conventional legal approaches seem to be at odds with the digital context of rights. This general assumption will be further examined with particular focus on free speech: it will be demonstrated that the legal tools employed for striking a balance between speech and other competing rights appear to be substantially changed and to thus have gained new perspective online. In doing so the paper raises the often overlooked issue of the widening chasm between our classic theoretical framework for free speech and the current reality enfolding speech online. This point serves as the stepping stone for ultimately suggesting an adaptation of our free speech theoretical structures. To establish this argument the paper examines two free speech jurisprudences; the US First Amendment and the article 10 ECHR. It should be noted that it is not within the paper‘s remit to conduct a detailed comparative study between the two jurisdictions; the focal point is to describe the common methodology they seem to be employing in terms of protecting free speech. While their obvious differences are noted, it seems that both legislative frameworks seem to be following a similar structural pattern. Namely they appear to demarcate protected areas of speech by performing a balancing act between free speech and other countervailing interests. This balancing act is ultimately influenced by the certain context of free speech and the other countervailing rights. Namely by properly contextualizing free speech one can further decide on its protection by balancing it against other rights. In doing so, both jurisdictions seem to employ a legal balancing mechanism which relies on assessing free speech protection based on certain criteria. The paper discusses three such criteria, which can be summarized in the triptych of space, property and state coercion monopoly. These parameters serve as yardsticks for free speech, putting it in context. Two sets of competing rights to free speech are examined: privacy and intellectual property. Although the aforementioned triptych has been widely adopted to draw the line between free speech and other rights including privacy and intellectual property, it seems that its parameters are now challenged online. It is further argued that space, property and state coercion monopoly are no longer decisive as legal tools for striking the right balance for free

ICCPR art 19. The architecture of free speech protection The right to free speech is regarded a fundamental right and as such enjoys constitutional protection across multiple jurisdictions worldwide. UDPR art 19. their legal response as to pornography is substantially different. Another example emblematic of the difference is the case of pornography. without necessarily protecting its countervailing rights. the law misplaces free speech and other rights. As they all have acquired a new meaning in the internet. they both seem to follow a common structure in spite of their obvious differences. E 2005. Freedom of Speech. in G Nolte (ed. such as the African Charter on Human and Peoples Rights (art 9). two of the main free speech protective legal mechanisms will be examined: the US First Amendment and the art 10 ECHR. For the purposes of the current paper. The aim of this paper is to highlight the need for a fresh perspective as to free speech online and to call for a digitization of the current regulative framework. This way the equilibrium seems to be broken resulting to over-restrictions of speech online.3 [Draft . which ultimately results in imbalances. 'Freedom of Expression Adjudication in Europe and America: A Case Study in Comparative Constitutional Architecture'. pp.Please Do Not Cite] speech online. 352. For example the First Amendment came as a response to the draconian speech limitations imposed by the English Crown to silence its critics in the US colonies. Cambridge University Press. Cambridge. the holocaust denial and illegally obtained information (ibid pp. As to its substance. This according to Schauer explains the American exceptionalism that values certain types of speech3 which lay outside the European free speech protective scope. whereas the US and the EU are on the same stance regarding child pornography. the two free speech jurisdictions will be examined and compared from two aspects: their substance and their architecture. such as incitement to racial hatred.). For an overview see Barendt. p. Clarendon Press. Traditional legal approaches seem outdated in the digital era. F 2005. failing to realize their digital context. persistence in their traditional view might lead to placing online speech in a wrong context. Oxford. As it will be demonstrated next. To establish this. which is attributed to the political and legal norms prevailing in each jurisdiction. the equilibrium between free speech and other rights such as privacy or intellectual property online should thus be recast in the light of their digital context. The protection of free speech goes beyond the national level as this right is included in many international legal texts. ECHR art 10. freedom of speech bears a cultural relativity.67-68).391 . the paper follows the methodology suggested by Frederick Schauer2 for a comparative constitutional study. 49 3 Schauer mentions a few examples. such as the 2 Schauer. Substance determines the right‘s protective scope and it is further linked to the right‘s constitutional value. History has also played a significant part in forming the substance of the right to free speech. Persistence in the conventional legal approach as to online speech can lead to the paradox of restricting both speech and its competing rights. 2. European and US Constitutionalism.

69-123 9 For a textual analysis of the First Amendment and the article 10 ECHR following Ronald Dworkin‘s moral reading of Constitutions. Case C-260/89. vol. ECHR‘s article 10 adopts a detailed ―heavily circumscribed 4 For more see Chafee. 36 61 (1961). I-4685) and has been reluctant to accept a subjective right for free expression in the European Union. The Volokh Conspiracy. 427 U. 366 U. J. Eugene Volokh shares a similar view. vol. 393).. The acknowledgement of this right by the supra national institutions of the European Commission and the ECtHR7. the substance of this right is shaped accordingly. it is commonly accepted that restraints of this right could be ―permitted for appropriate reasons‖ (Elrod v Burns. Mass pp. it is made clear that the protective scope and the room for limitations to the right for free speech tends to follow different principles depending on whether this is applied to a national or a supra national level. 385-387 8 The right to free expression is enshrined in the art 11 of the Charter of Fundamental Rights of the European Union. 68-71 10 This does not mean that the First Amendment is an absolute. Free Speech in the United States. As a result the First Amendment considers free speech as a civil liberty5 and guarantees its protection for the US citizens. Oxford pp. 18-20 5 For an analysis of this argument. 1991 E. pp. the First Amendment is a constitutional text whereas the ECHR is a convention of human rights. Rev. by referring to some constitutional free press provisions from various States before the introduction of the First Amendment he argues that those provisions coexisted with free speech restrictions such as libel law and thus the provisions acted as limitations to this liability and not as an absolute. Thus. pp. UCLA L. see Guild. which applies to the EU member states and is legally binding according to the Treaty of Lisbon.R. the ECHR views free speech as a universal human right that should be enjoyed by all humans in a supra national level beyond the notion of citizenship6. 347. It should be noted from the onset that the two free speech jurisprudences do not share a common legal background.Please Do Not Cite] Seditious Libel Act4. (Apt. This explains another rather striking dissimilarity between the First Amendment and ECHR. Cambridge. the different phrasing of these two legal texts9: The First Amendment begins with a negation (―Congress shall make no law‖) and thus seems to be protecting freedom of speech in a rather absolute way10. 14. 6. Colum. (Volokh. 4. 1991 E. Eur. It should also be noted that although the European Community is not an individual signatory member of ECHR. although it has been argued that his views should be narrowly interpreted as they refer to certain categories of speech (see Kalven Jr.S.C. the critical issue in the US approach to free speech is the state interference over the contents of speech. Dimotiki Etairia Pliroforissis and Sotirios Kouvelas. It is suggested that there is ―a principle of subordination of the Charter rights to their ECHR origins‖ (Guild (n 4) pp.S. the European Court of Justice has many times drawn from the article 10 ECHR (Elliniki Radiofonia Tileorasi AE v. Case C-159/90. on the other hand. SPUC v. J.S.com/2011/07/26/which-part-of-make-no-law-dont-i-understand/> . 'Which Part of 'Make No Law' Don't I Understand?'. Although the First Amendment is phrased in a rather absolute manner. Eur.C. Principles of Human Rights Adjudication. Grogan. H 1967. As a result. 360 (1976) cf Justice Hugo Black ―I believe that the First Amendment‘s unequivocal command that there shall be no abridgement of the rights of free speech and assembly shows that the men who drafted our Bill of Rights did all the ‗balancing‘ that was done in the fields…‖(Konigsberg 366 U. Oxford 7 Guild (n 4) pp. E. Hard Pub. B 1998. 442-443. E 'The Variable Subject of the EU Constitution. 2925. L. Namely. 'Upon Rereading Mr. Harvard University Press. <http://volokh. possibly due to the remarkable similarity between art 10 ECHR and art 48(3) EC Treaty on Freedom of Movement. In noting this.4 [Draft . On the contrary. Justice Black on the First Amendment'. Z 1941. I 2002.. A Virtue Less Cloistered: Cours. 36 (1961). C 2004. 'On the Right to Freedom of Expression in the European Union'. Migration & L. Speech and Constitutions. viewed 10-12-2011. pp. Oxford University Press. Justice Black‘s absolutism is well reflected in his dissenting in Konigsberg v State Bar of California.R. 381-394 6 Gearty. see Cram. Civil Liberties and Human Rights'. as well as its inclusion in the EU Constitution8 frames the right within a context that is broader than the national state. vol.

11 ECtHR (ser A) at 89 (1989) 15 ―The exercise of these freedoms. the First Amendment through its judicial review doctrines16 employs a categorical approach17 based on the content of speech. L. Contested Words: Legal Restrictions on Freedom of Speech in Liberal Democracies .Please Do Not Cite] notion of free expression‖11 by stating clearly its permissible restrictions12. vol. Soering v United Kingdom. 930 and Schlag. This is accomplished in three stages: Initially they carve out types of speech that are either in the core of their protected right or in the periphery and thus their restriction can be justified. it will be attempted to trace these methodological similarities. vol. However.J.. UCLA L. Hampshire. which can be limited by the textually described standards mentioned in art 10 par 2. 30. p. In other words. the US First Amendment judicial review adopts a two tier system of protected and unprotected speech. pp. Of course their methodology at this stage is not the same. the ECHR treats it as a ―precious‖ right to democracy. p. ECHR attempts a similar ranking in art 10 par 2 by defining the cases of legitimate restrictions15. I 2006. for the protection of health or morals. In the absence of a textual definition of its scope. Rev. it could be argued that they both define its protection by delineating the areas of its permissible restrictions.5 [Draft . Burlington. E 2009. the ECtHR is committed to striking ―a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual‘s fundamental rights‖. See Zoller. restrictions or penalties as are pre-scribed by law and are necessary in a democratic society. The emphasis this time is not on the state interference but on the state‘s obligation to keep the right balance between competing interests14. for the protection of the reputation or rights of others. 'Freedom of Expression: 'Precious Right' in Europe. since it carries with it duties and responsibilities. 48. It has therefore been suggested that –at least at a first read – the article 10 ECHR seems to be framing the free speech protection in a less absolute way compared to the First Amendment13. In the sense that the Supreme Court places certain types of speech either at the core or at the periphery of the First Amendment with reference to the level of protection they are entitled to. territorial integrity or public safety. Returning to Schauer‘s ‗substance‘ it becomes obvious that the substance of the right to free speech is different in these two jurisdictions as they seem to adopt different sets of priorities that are eventually reflected on their legal texts. P 'An Attack on Categorical Approaches to Freedom of Speech'. In what follows. for pre-venting the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary. in the interests of national security. Ind LJ. for the prevention of disorder or crime. as it was noted earlier the main concern of the US free speech framework is to regulate the interference of the state. VT 147 17 According to this categorical approach. the two jurisdictions seem to be framing the right to free speech negatively. For more details on the categorical US First Amendment approach see Farber. may be subject to such formalities.‖ 16 Cram. the ECHR on the other hand adopts a textual classification of free speech clashing interests by 11 12 Cram (n 8) 44 It has been suggested that whereas free speech is considered a ―sacred right‖ in the First Amendment. Ind. D 'The Categorical Approach To Protecting Speech in American Constitutional Law'. 'Sacred Right in the United States?'. vol. First. the architecture of free speech in both jurisdictions bears some remarkable similarities. conditions. 673 . Aldershot. 65 14 As it is noted in Soering. which ultimately culminates in a balancing act performed in both jurisdictions. whereas in the case of ECHR the focal point is the regulation of speech itself for maintaining an inner balance with the other ECHR rights. 84. Ashgate. 807 -808 13 As Barendt notes ―on a superficial view it appears that Article 10 (2) virtually removes the right granted by the first paragraph‖ Barendt (n 2) p.. England . This categorical approach acts as a preliminary judicial test that carves out all proscribed types of speech beyond strict scrutiny review.

Please Do Not Cite] prioritizing their underlying values.S. N. 177 (1983) . according to Simon Evans and Adrienne Stone. San Francisco.enelsyn. This draws from Schauer‘s earlier work on the phenomenon of ‗convergence‘. Commission Report (1977) par. Available: <http://www. 461 U. e. EHHR. 24-5-2007. 15-16 24 A balancing test. Ultimately. Sunday Times v UK. CA. the two jurisdictions attempt a doctrinal demarcation of the restrictions imposed on speech. Again. Evans. the two jurisdictions seem to be following a common pattern as to their free speech adjudication. many of the doctrines adopted for this seem to be similar in both free speech jurisdictions. Schauer. F 2003. p.allacademic. Not only do they both define the right‘s protective scope by drawing its permissible limits but they also evaluate the constitutionality of its proscriptions in a similar manner. and these criteria. the current thesis examines cases of balancing between free speech and other private interests.S. 'The Convergence of Rules and Standards'. Austin v. The difference lies in the fact that in 18 ―Strict interpretation means that no other criteria than those mentioned in the exception clause itself may be at the basis of any restrictions. 652. For example the strict interpretation of the provisions in art 10 par 2 ECHR introduced in the Sunday Times v United Kingdom18 resembles the First Amendment strict scrutiny standard for content based regulations as they both place the burden on the state to prove its claim of compelling interest. the room for discretion might be different but the balancing act itself is nonetheless performed in both legal jurisdictions. in turn. 64 19 The Sunday Times v United Kingdom (1979) 1 EHHR 6538/74. 171. However. legitimacy of its aims and necessity in a democratic society19 bears a notable similarity to the First Amendment precision doctrine20. privacy and intellectual property. To sum up.gr/en/workshops/workshop15 (en).S. Series B. S & Stone.. Rev. Athens.6 [Draft .com/meta/p169925_index. this does not suggest that other types of public/ national interests do not clash with free speech. Goodwin v United Kingdom (1996) 16 EHHR 20 Youm. United States v.html>. 655 (1990) 22 For purposes of coherence. pp. Balancing and Proportionality: A Distinctive Ethic?. 194-195. On a second level. must be understood in such a way that the language is not extended beyond its ordinary meaning‖. accessed 4/1/11. a level of high protection and a level of lower protection where more restrictions are justifiable. See Schauer ( n 22) . By employing a number of tests and doctrines. He notices that the broadly defined right to free speech phrased in the First Amendment is further interpreted more concretely by a complex doctrinal system employed in the First Amendment Jurisprudence. under which a speech restriction is examined in terms of its precision. Available online: <http://www. Moreover.Z. namely a regulatory strategy based on a combination of rules and standards. "The U. A 2007. This dictum has been constantly repeated through time in the EHHR decisions (see for example. No 28. accessed 12/12/11 21 See for example. they both perform a balancing act between the right to free speech and other countervailing interests 22. Grace. Although the US constitutional adjudication is described as a more rule oriented23 approach in contrast to a standard based balancing approach adopted by the ECHR24. Going further. the ECtHR‘s tripartite test. Supreme Court and the European Court of Human Rights on Freedom of Expression". Markt Intern Verlag Gmbh and Klaus Beermann v Germany (1989) 21 EHHR. K 2007. At the same time they both seem to have the same result: they preliminary carve out two main tiers of speech protection.htm>. L. 23 Schauer calls the US approach a ―concretization of standards‖. the Strasbourg‘s doctrine of proportionality of the speech restriction to the legitimate aims pursued stands on the same line with the US doctrine of the restriction being ―narrowly tailored‖21 to pursue its means.g. can serve a dual cause in the same spectrum as it can be exercised to serve the purpose of a rule formation but can also result to the application of some broad standards. 494 U. they both entail a balancing act. the Supreme Court and the ECtHR evaluate the constitutionality of the state interference. Michigan Chamber of Commerce.

341 US 494.''27 The Strasburg Court has also relied on this balancing act. That said. Although the broad theoretical debate 25 26 Schauer (n 1) p. 5 Ibid footnote 19 27 Dennis v.7 [Draft . Regarding the ―interests of justice‖ in seeking a disclosure of s source protected by section 10. The legal concept of balancing in general has been discussed in the works of many legal scholars30. pp 785-812 and Waldron. vol . Fr 1994. ‗Commensurability and its Constitutional Consequences‘. within the confines of the judicial process. this balancing act is a common point in the free speech architecture of both jurisdictions. In this balancing exercise it is only if the judge is satisfied that disclosure in the interests of justice is of such preponderating importance as to override the statutory privilege against disclosure that the threshold of necessity will be reached. Appl No 17488/90 [1996] 22 EHRR 123 at 18. Justice Frankfurter‘s concurring opinion in Dennis elaborates this doctrine: ''The demands of free speech in a democratic society as well as the interest in national security are better served by candid and informed weighing of the competing interests. UK."29 As it has already been noted. J 1994 ‗Fake Incommensurability: A Response to Professor Schauer‘. Lord Bridge notes that ―[t]he judge's task will always be to weigh in the scales the importance of enabling the ends of justice to be attained in the circumstances of the particular case on the one hand against the importance of protecting the source on the other hand. HASTINGS L J.Please Do Not Cite] the ECHR ―the balancing methodology is contained directly in the Article 10 (2)‖25 followed by an ad hoc balancing whereas the First Amendment attempts a ―definitional balancing‖26: it balances free speech with competing interests based on a prior textual demarcation of the right‘s protective scope. United States. In Goodwin v UK 28. On performing a free speech balancing act The inescapable need of performing a balancing act between free speech and its competing rights has been noted in many occasions in the legal rhetoric of both jurisdictions. than by announcing dogmas too inflexible for the non-Euclidian problems to be solved. The balancing exercise as to free speech had been adopted by US Supreme Court already from the early 1950s. a balancing act is an architectural element that these two legal frameworks have in common and this free speech balance will be the focal point of the remainder of the paper. the Court evokes an excerpt from one of Lord Bridge‘s speeches. HASTINGS L J. vol 45. 517 at 542 (1951) (concurring opinion) 28 Goodwin v. which describes eloquently this balancing act taking place. 3. 29 Lord Bridge in X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1 30 See for example the debate as to balancing incommensurable values in: Schauer.

no. as Waldron notes and ―civil liberties are not even defined until some balancing exercise is undertaken‖31. to strike the required balance with its competing rights and interests and eventually to decide on its scope under certain circumstances. I would like to thank Professor Ian Cram for bringing this paper to my attention. the values of the competing rights although comparable33 are nonetheless incommensurable in absence of a common metric34. 148. it is widely accepted that balancing requires a proper contextualization of the rights considered. p. Yale LJ. By framing the rights. V 2011. Of course striking a fair balance does not presuppose a Benthamite quantification model32. It is true that noticing its context helps us to evaluate the right to free speech. This is the second point that should be noted: Performing this balancing exercise successfully one needs to place the rights in a proper context37. 'Constitutional Law in the Age of Balancing'. 'Security and Liberty: The Image of Balance'. 31. See also Aleinikoff. This acknowledgment of context is also reflected in the First Amendments time. Oxford Journal of Legal Studies. 470 35 Da Silva (n 32) pp 13-14. Although it is not clear whether it is eventually the potential for realization of rights35 or their consequences36 that are being weighed. 7. Basic concepts are –as Isaiah Berlin has observed. vol. and as experience varies from one time and place to another. property and state coercion monopoly. Clarendon Press. It will be argued that although this triptych has been widely adopted for striking a balance between free speech and other rights.Please Do Not Cite] of comparing values will not be discussed here in depth. it has been challenged online. For the purposes of this paper. 2 pp.stanford. it is 45. vol. 96. Oxford... such as privacy and intellectual property. 197 -198. A 1987. 3 p. context ultimately serves as a decisive balancing factor as it helps towards properly evaluating its concept. See Da Silva. Phil.edu/entries/berlin/index. vol. pp 813-824. First. two points must be highlighted. vol. 'Incommesurable Values'. so do basic concepts‖38. Pol. Oxford 36 J Waldron (n 30) p. p. Free speech jurisprudence is largely based on the contextualization of speech. 197 37 ―Where the boundary is drawn is surely a matter that requires consideration of consequences. 'Proportionality: An Assault on Human Rights?'. in R Crisp & B Hooker (eds). It has already been mentioned that free speech is negatively defined through its permissible restrictions. accessed 20/12/11 . R 2002.―closely tied up with our experiences.html#note-2>. no. 11. A Theory of Constitutional Rights. 38 <http://plato. the balance drawn between speech and other rights ultimately defines its protective scope. it should be noted that the task of performing a balancing act is necessary in terms of defining properly the right under review.. See also Alexy. pp 21-38 31 Waldron. Balancing and Rational Decision'. S 2009. manner and place restrictions for content based free speech regulations. International Journal of Constitutional Law. Oxford University Press. Liberty in general is a matter of more or less. In order to contextualize free speech. it will be drawn differently in a republic with hand guns than in a republic where the weapon of choice for assassinations is the stiletto‖ J Waldron (n 30) pp. Well Being and Morality: Essays in Honour of James Griffin . 32 Waldron (n 29) p 819 33 This distinction is made clear by VA Da Silva.. J. which serve as yardsticks. See also Broome. 10-11. we will focus on the frequently evoked triptych of space. J 2000. judicial review employs a series of parameters. J 2003. 943 34 For an overview on the relevant debate regarding an acceptable common metric see Tsakyrakis. Next.8 [Draft . the epitome of this is the margin of appreciation. 'Comparing the Incommensurable: Constitutional Principles.

. T 2008. such as the prevailing norms in a given context. Fordham L. 'Space. the notion of space is intertwined with free expression. The most notable example of its use in jurisprudence is the fact that space serves as the decisive factor for determining a specific jurisdiction. 800-801 40 Zick. Cambridge University Press. property and state coercion. 'The Geography of Justice'. K 2004. pp. That said. Rev. following the private/public dichotomy. For relevant case law. free speech jurisprudence entrusts state with the task to reserve some open public spaces for exercising free speech.. Regarding free speech. vol. this triptych has been commonly accepted across multiple jurisdictions as all these three notions are eventually factual indisputable elements. one could note the . 73. From the ancient agora and the roman forum to Hyde Park Corner. Wash. ownership of a certain space determines action within this sphere and as private or public. One can further note the importance of ‗locus‘ in many areas of law. pp. L. Even the metaphor of ―marketplace of ideas‖ dominating the First Amendment jurisprudence is indicative of the fact that spatiality is essential for the right to free speech40.2009. In order to decide on the speeches‘ proscribed limits. space and property combined introduce this public/private dichotomy. 74. See also ---. J 1996. vol. New York 41 Acknowledging the Habermasian theory for necessity of public spheres for democratic discourse (Habermas. Space as a balancing parameter for free speech is not by itself enough to outline its context and delineate the right‘s protective scope. Cambridge: Mass). Place and Speech: The Expressive Topography'. MIT Press. Geo. EJIL. people have always had the need to assemble in a designated area for discursive purposes. 19.Please Do Not Cite] illustrated how this triptych is contested online and why maintaining our old views eventually leads to imbalances as to free speech online. 1754. In this task. judicial review has frequently relied on the triptych of space. judicial review takes into account this distinction of space. 2501-2560. Contrary to other parameters. space is considered to be an egregious conceptual element of this right. p. which at times may overlap. Namely activity is divided into multiple private and public spheres. which ultimately contributes towards putting speech in a certain context. Schultz. Space as a legal tool is a concept which dates back to the westphalian state-centric sovereignty39. Rev. The ability of the state to map free speech 39 Raustiala. Legal Orders and the Private/Public International Law Interface'. 4. vol. This contextualization is reflected on the ―public forum‖41 doctrine. predominantly the international law as well as its association with other legal concepts. Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy. Speech Out of Doors: Preserving First Amendments Liberties in Public Spaces.9 [Draft . judicial review associates spatiality with property by introducing the public/private dichotomy. 'Jurisdiction. This dichotomy is in fact the manifestation of property. T 2006. Balancing free speech: The decisive parameters In determining the context within which free speech is to be balanced. such as the ―locus in quo‖ as to the act of trespassing in the English common law of torts. The fact that the state in the post-westphalian era is expected to exercise absolute power within its territorial borders has given space a significant role as a juridical tool.

In other words. Eventually the line is drawn premised on the ability of the state to implement this decision. This triptych is also noticeable in the balancing between free speech and intellectual property. ibid pp. This means that to determine whether there has been an infringement on privacy. The balancing act that free speech adjudication entails is guided from this concept as well. It ultimately helps us to define free speech by revealing its context. not for his own but for the other's purpose‖ F. That is the concept of the state coercion monopoly43. 42 T Zick (n 39) ‗Space. the latter consisting of non violent actions as well (Hayek. In order to decide on whether trespassing has taken place. besides underpinning the right to intellectual property is also a decisive factor for placing both rights in the proper context. property and state coercion monopoly have dominated the free speech balancing exercise. The Constitution of Liberty. Zick further notes that the First Amendment jurisprudence is built on the conception of place-as-property (n 39) p. Educ. It is thus made clear that space and property are the two legal assumptions that serve as the main coordinates for contextualizing free speech and drawing a balance with other rights. The state coercion monopoly is addressed here in a broader sense. p. no 44306/98 for ECtHR or the Ark. Eventually. 1713. This is perceptible in many cases of private rights competing with free speech. 1723 43 Max Weber considers this monopoly of the state to use legitimate violence as a necessary precondition for statehood. judicial review adjusts the right‘s protective scope on grounds of its specific environment. Univ of Chicago Press. Besides using space and property as juridical tools to outline the permissible limits to free speech.Please Do Not Cite] by determining certain public and non public forums derives at large from the state‘s ownership status of spaces42. 154). the relevant jurisprudence relies heavily on the understanding that the state is able to do so as it seems to be the sole source of coercion. Again. this third legal assumption is an acknowledgement of the state‘s sole power to enforce its free speech restrictions in the name of protecting a countervailing interest44. Television Comm‘ n v Forbes. Free Press. one would need to consider the place that the incident under review occurred and its ownership status. judicial review contextualizes the two rights before striking a balance. following Hayek‘s viewpoint of accepting that violence is only a form of coercion. 523 US 666. This triptych of space. In this section it is claimed that the ontologies of space. 135 44 The power of the state to implement its decisions to restrict one right for the sake of protecting another is noted in Hayek‘s definition of ‗coercion‘: ―Coercion occurs when one man's actions are made to serve another man's will. Take for example the cases where free speech seems to be clashing with privacy interests.10 [Draft . In other words it outlines the right‘s permissible limitations having first considered all these three parameters and the specific context they describe. property and state coercion monopoly has always been an integral part of the balancing act performed regarding the right to free speech. the state‘s power to define the right to free speech through this balancing is guiding the judicial review. the concept of space is critical as to the level of dissemination of the copyrighted material. 2021 . Moreover property.A. One could further note a third legal assumption that contributes towards placing rights in the proper context while balancing them. F 1960. By acting as descriptive parameters for the context within which free speech and other rights occur case of Appleby and other v the United Kingdom [2003] app. (Weber. The Theory of Social and Economic Organization . Place and Speech: The Expressive Topography‘ p. Hayek. New York. Chicago p. As it was noted earlier. M 1964. 677 (1998) at 678 regarding the First Amendment.

The case. Cal. As to balancing free speech.D. The dictum of Justice Fogel that the ―Internet in effect allow more than one to speak in more than one place at the same time‖46 equals to an admittance that the legal assumption of space in terms of a geographical connection to a certain legal sphere could no longer hold online. French Union of Jewish Students v Yahoo! Inc USA. the frequently evoked triptych described earlier appears to be radically changed in the digital era. Although they have all been always of a factual nature and regarded as parameters fixed and widely adopted globally. Conventional Approaches Challenged Online It is often remarked that the internet has spawned a new era for in that it has revolutionized our way of thinking and understanding. which is considered a landmark for IT law case-law. Electronic Business Law Reports. all these three legal assumptions have become relevant in cyberspace. 11 46 Yahoo! Inc v Law Ligue Contre le Racisme et L'Antisémitisme. they now appear almost mutated online. In what follows. As a result they seem to be no longer useful as legal tools for striking a fair balance for online speech. no.N. the internet has undoubtedly imbued law with great rigour as it seems to be putting into question our conventional legal approaches. 5. 2d 1181. 20 November 2000'.11 [Draft . Although they were traditionally considered as unchangeable legal axioms that could outline the given context in which judicial review was to assess free speech. these legal assumptions help us contextualize speech properly and weigh it against other rights at stake. Interim Court Order. the judges noted the overarching challenge to define space in terms of jurisdiction. This has not left jurisprudence unaffected. Research Paper No. Tribunal de Grande Instance De Paris (The County Court of Paris). vol. property and state coercion monopoly are now shaken to the ground in the internet age. This problematic change in spatiality is particularly prevalent in the WikiLeaks case as well. it is explained in what way this triptych changes online and why it is problematic to use it as a juridical tool. Already in 2000. See also Reidenberg. It would not be a hyperbole to say that the three axiomatic parameters of space. they are now challenged online. in the Yahoo! case45. this triptych does not seem to hold online. 3. the troubling implications of its definition became obvious from the very start of the internet‘s history. Namely. 2001 . 1192 C. J 2001. 1. ‗The Yahoo Case and the International Democratization of the Internet‘. Yahoo! France. 'Case Analysis Against League Against Racism and Anti-Semitism (LICRA). When the US Courts discussed the enforcement of the French issued injunctions against the US based Yahoo! they were faced with the question of determining the jurisdiction. Nonetheless. when the US DNS provider ―Every DNS‖ decided to withdraw its 45 For a report and a case analysis see Akdeniz.Please Do Not Cite] and collide. 169 F Supp. Beginning with the concept of space. Fordham Law & Economics. Y 2001. As it will be argued next. involved the legal action of an anti-Semite French Organization against the auctioning of Nazi memorabilia online hosted in Yahoo! webpage with global reach.

vol 48) while others dismiss online anarchy yet still acknowledge the problematic implications cyberspace has in terms of jurisdiction (Geist.org. some argue that current laws are inapplicable online (Johnson. modification and peer review.160 to each query for http://www. Morgan Kaufmann. non exclusive appropriation and creative transformation‖54 are directly opposed to any proprietary regulating regime. pp. What is highlighted here is that the internet has introduced a multidimensional notion of spatiality. accessed 10-12-2011 52 ibid 53 Although the internet is not considered as a separate jurisdiction. available online at <http://www.uk/news/technology-11928899> . It is no secret that most of the most innovative and successful projects online owe their creation and development to the participation and collaboration of many users together.13. ―interactivity. ‗Is There a There There? Towards Greater Certainty for Internet Jurisdiction‘. J 2005. WikiLeaks managed to sustain their online presence in the following ways: Initially WikiLeaks transferred to a Swiss ccTLD48. Their task is to match the user‘s query to a specific IP.wikileaks. mass participation. they enforced their Swiss domain name with DNS diversification. 'Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society'. in Sweden.ch‖ 49 Jane Wakefield ―Wikileaks‘ struggle to stay online‖.80. Linux or even the very recent Icelandic Constitution: these are all projects drafted online based upon contribution. WikiLeaks used the Swiss ccTLD ―. vol. L. Regarding the concept of property. open source. the users can still access the requested page but by typing in the full IP address themselves instead of the more memorable websites address. M 2001. Eventually the DNS provider deciphers the long IP numbers to easily remembered web addresses. it is equally acceptable that it is a notion almost inimical to the internet‘s infrastructure. ‗WikiLeaks: Moving Target‘. esse ntially name servers associate all IP addresses to user-friendly addresses so that the users will not have to remember the exact IP number of the website they want to reach each time.bbc. M 2009 Principles of Computer System Design. D & Post. The WikiLeaks case illustrates clearly that space as we once knew it is forever lost online. 52. Wikipedia. which is utterly new and almost estranged to the concept of space used in the analogue world. vol 153) 54 Balkin. for example . 1-55 .com. accessed 10-12-11 50 Name servers (or Domain Name Servers) are servers that help the user reach a requested website. Reidenberg. in Renesys Blog available online: <http://www.uk etc. In the case of Wikileaks for example.co. . Of course this is not to imply that cyberspace has created a different jurisdiction or constitutes a place of its own53. The basic structural features of the internet. which voluntarily displayed the WikiLeaks content on their websites. D 1996. To this one could also add the over 1000 additional mirror sites52. For more technical details on how DNS works. its idiosyncratic spatiality has been noted by many legal scholars.com/blog/2010/12/wikileaks-moving-target. Burlington pp 175-184 51 James Cowie. as such it has been severely questioned online. U Pa L Rev. ‗Law and Borders—The Rise of Law in Cyberspace‘.J. BBC News Technology. 48 ccTLD is the acronym for country code top level domain and it is the final part of a web address corresponding to a specific state. Its ‗borderless‘ nature has sparked further debate. Eventually. .12 [Draft . Copyright itself has been altered online.co. ‗Technology and Internet Jurisdiction‘.shtml>. see Saltzer.Please Do Not Cite] services47 to WikiLeaks and pulled the plug off its website following political pressure. Berkeley Tech. their DNS provider would be responsible for supplying the user with the hexadecimal IP number 88. In the absence of such services. J & Frans Kaashoek. which directed users to a Swedish IP while having their content hosted by a French server49.renesys. NY UL Rev. This means that they set up 14 authoritative name servers50 in eight different countries pointing to three diversely routed IPs. J 2004. STAN L Rev. 47 The services a DNS provider offers are a valid IP address associated with a specific domain name. France and the Netherlands51.

In general the relevant discussion revolves lately61 around a multi-stakeholder online governance model. it is argued that the state is no longer the ruling deity online. these developments are mentioned in the light that the state seems to have lost its monopoly of exercising power online. Post. L Lessig. In Search of Jefferson's Moose : Notes on the State of Cyberspace.. which further facilitated discussions over an online governance model away from the state-centric model. UN and ITU to name a few. A series of facts since the mid nineties paint a precise picture of this. Postel on his own initiative redirected more than half name servers to another root zone server. signed by EFF‘s56 John Perry Barlow in 1996. ibid p. Cambridge: Mass pp. In the following years. Lessig has detected another ruling deity online besides the state: the code59. J & Wu. see: Mueller. which at the time was an operating in the Information Sciences Institute in the University of Southern California. Although it is outside the remit of this paper to evaluate the effectiveness and impact of all the models suggested. accessed 11-12-11 ..Please Do Not Cite] more and more it is now gradually moving towards ‗copyleft‘55. By 2005 it had become rather obvious that the cyberspace governance calls for international cooperation. For more details on Jon Postel‘s role in running the root and the reactions to his splitting the root in 1998. what should be noted here is that his action resulted in taking power away from the US government and transferring it to IANA. MIT Press. Last. Lessig‘s argument -that eventually the software is capable of embedding and implementing further regulatory actions online. The doubt upon state‘s monopoly online was first cast in the well known ―Declaration of Independence in Cyberspace‖. This libertarian manifest. Who Controls the Internet? : Illusions of a Borderless World . as to the state coercion monopoly. 142. Although.has been verified many times in the internet‘s short history since the nineties60. L 2006. many online governing online bodies were suggested. For a summary of the matters discussed in the Nairobi IGF 2011 see its website at <http://www. Code and Other Laws of Cyberspace: Version 2. 154-155. New York 59 ―The regulator is what I call the ‗code‘ – The instructions embedded in the software or the hardware that makes cyberspace what it is‖. Oxford pp. 56 Electronic Frontier Foundation 57 J Barlow. New York p.‖57. 55 Richard Stallman‘s GNU General Public License and Lawrence Lessig‘s Creative Commons are the most notable examples of copyleft licensing systems. split the root. ―A Declaration of the Independence of Cyberspace‖ available online: <http://editionshache. this was the WSIS 2005 main conclusion. IANA‘s Director and in almost absolute authority to manage the internet name assignment process.intgovforum. Oxford University Press. accessed 12/12/11 58 Lessig. addressed to the ―governments of the industrial world‖ adopted a hands-off the net approach in stating that ―you have no moral right to rule us nor do you possess any methods of enforcement. the licensing system that ensures information will remain free for further copying as long as this is not done for commercial purposes. Basic Books. Goldsmith. governments and civil society.org>. when Jon Postel. ICANN. Ruling the Root: Internet Governance and the Taming of Cyberspace.. Allegedly as part of a test. In his homonymous book.0. Leaving the technical details aside. DG 2009.com/essais/pdf/barlow1. M 2002. 94-95. T 2006.13 [Draft .pdf>. 121 60 The most striking example for this was in January 1998. Barlow‘s Declaration is considered to be overwhelming yet outdated in today‘s commercial World Wide Web its argument has survived in Lessig‘s famous quote ―Code is the Law‖58. 29 61 In the latest IGF 2011 in Nairobi the multi-stakeholder debate focused on finding common ground for private actors. Oxford University Press.

By ignoring the fact that the public and private dichotomy is not that easy to discern any longer online. the right to privacy online seems to be gaining ground against free speech. ignoring the fact that rights are not properly balanced online could result to encroachments on free speech. 2009. it will now be demonstrated that maintaining the old views could lead to imbalances with significant implications for online free speech. Moreover the danger of such imbalances leading to paradoxes is constantly lurking in cyberspace. If indeed our hypothesis holds and the balancing triptych has gained a new meaning online then maintaining our conventional legal perspective will eventually result in misplacing the rights to be balanced in the wrong context. available online: <http://peterfleischer. Princeton University Press. No. if the definitional parameters of the context are mutated online then using the old parameters will lead to a faulty contextualization of free speech which in turn will result in imbalance. Delete: The Virtue of Forgetting in The Digital Age. accessed 10/12/11 . available online: <http://www. 2.uk/2011/11/15/right_to_be_forgotten_might_not_be_enforcable/>. property and state coercion seemed altogether contested. EJLT. To carry this argument further. When examined online. In terms of the freedom of the press to inform the public and archive its material for future use.14 [Draft . it is generally observed that the balance struck promotes the latter. the Google‘s privacy counsel‘s account on how ‗a right to be forgotten‘ could potentially amount to online censorship. 'A Right to Delete?'.html>.Please Do Not Cite] 6. pp 193-220 For an overview and supportive argumentation for acknowledging such a right see MayerSchoenberger. its axiomatic nature shaken to the ground. Harv L R.A. Why maintaining our old legal views over-restricts speech and could lead to paradoxes Turning back to the main argument of this paper. See for example.co.2 64 Ed Vaizey mentions the example of EU data stored in cloud computing and wonders how this could play out with the ―right to be forgotten‖. accessed 12/12/11 65 People involved in the industry appear to have a better understanding of these issues.theregister. almost at the expense of free speech. While maintaining a proprietary view of the right to control one‘s private data and ultimately to ―be left alone‖62.blogspot. Examining the controversy between the right to free speech and privacy online.com/2011/03/foggythinking-about-right-to-oblivion. law appears to be stubbornly insisting on applying online disputable concepts such as 62 63 Warren. speech seems to be overly restrained. it has now become more obvious that the legal tools used for balancing free speech appear to have indeed altered their meaning online. the restrictions of this legislation are particularly problematic. S & Brandeis. In other words. For an alternative view on this right as a substantial element to a broader right to online identity see Bernal. namely. This tendency is reflected rather clearly on the latest legislative initiatives regarding online privacy. the triptych of the definitional parameters of space. V. 2011. L 1890. It becomes evident that the balance drawn is rather unfair for free speech 65. P. The current EU proposal to introduce a ―right to be forgotten‖63 into a revised EU Data Protection Directive provides us with a very good example. New Jersey. To illustrate this we will now briefly examine two sets of rights frequently clashing with the right to free speech online: privacy and intellectual property. Even though it would be admittedly unfeasible to implement such a regulation online64. vol. 'The Right to Privacy'.

the HADOPI Law in France or the Anti-Counterfeiting Trade Agreement to name a few. his name was leaked on . Named after the famous American entertainer. 69 One could further draw some similarities with the British ―super-injunction‖ case of 2011. accessed 10-11-11. it refers to situations where protecting privacy over free speech can lead to augmentation of the public‘s interest in divulging such information online.shtml>. Most of the latest legislative initiatives in this field have been criticized severely for imposing tremendous restrictions on free speech in order to protect copyright infringement online. Unfortunately the same is to be noted for another online competing right to free speech: intellectual property. The latest example comes from the US: Almost two months ago. Returning back to restricting free speech online for the sake of privacy. accessed 10/12/11 68 Term coined by Mike Masnick in his Techdirt article entitled ‗Since When Is It Illegal to Just Mention a Trademark Online?‘. Under this Act it is made possible to obtain a court order for the US ISPs to deny access for all their subscribers to absolutely any national or foreign website that is found to be having copyright material. it seems that it can at times have the opposite result.ohchr.Please Do Not Cite] spatiality and property. often without transparency and the due process of the law.org/english/bodies/hrcouncil/docs/17session/A.techdirt.pdf>. the relative legislation continues to maintain its parochial views on property and spatiality. who is repeatedly found to be exchanging copyright infringing material online. As a result the relevant balancing act has troubling implications for the right to free speech online. has now been incorporated in a series of internet related Acts.com/articles/20050105/0132239. this does not also mean that in doing so the lawmaker secures a certain level of protection for its countervailing rights.17.27_en. On the contrary.15 [Draft . Only this June. could also lead to the paradox of the under-protection of the competing right at stake while over-restricting free speech. In his report to the Human Rights Council he considers the French ―Three-strikes-Act‖ and the UK Digital Economy Act as legislations that have alarming implications for intermediaries‘ liability and the freedom of speech in general. such as the Digital Economy Act in the UK. The examples noted above are indicative of the fact that relying on the traditional legal parameters when balancing online speech leads eventually to the over-restricting this right. Take for example the controversial ―gradual response‖ regulative model that is adopted in a series of legislative texts implemented worldwide66. In this particular case69 the attempt of Babra Streisand to take down photos of her residence 66 The intellectual property legislative model that relies on the ability to block access online to any user. He notes further that this kind of arbitrary blocking of content for protecting intellectual property online eventually ―leads to self-protective and over-broad private censorship. persisting on balancing rights online using outdated parameters."67 In spite of such alarming findings. available online: <http://www. UN‘s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. notes his concerns regarding such legislations implemented in France and the UK. What is described here is most commonly referred to as the ―Streisand Effect‖68. The implications for freedom of speech this Act will have if it becomes law are tremendous. This injunction obtained by a famous British footballer that the media should not disclose his name on their reporting his involvement in an extramarital affair. 67 <http://www2. led to the opposite result.HRC. Frank La Rue. the Stop Online Piracy Act (SOPA) was introduced in the US Senate. At the same time.

57 72 Digital Rights Management 73 See for example the FIPR‘s Consultation Response on DRM. 534-613 . More importantly. not only do we over-restrict speech but we are also faced with the paradox of the underprotection of the other right at stake. pp. Random House. vol. the employment of technological means to enforce intellectual property such as the DRM72. This paradox of under-protection combined with over-restriction of speech can also be traced in the other set of competing interests examined above: free speech and intellectual property online. It has been argued time and again70 that in protecting ―the presence of strong exclusive rights in information and culture‖71 the law does not nurture innovation.Please Do Not Cite] from a website in 2003. intellectual property this time. these do not seem to hold online any more. In this case. it seems that this balancing has undesirable consequences. in this case privacy.pdf>. Insisting on using these outdated views ultimately results in ignoring the rights‘ context. accessed 11-12-11. accessed 11-12-11. rather than the publishing industry selling it. 7. New Haven. The Future of Ideas : The Fate of the Commons in a Connected World . L Rev. For a relevant graph see Dan Sabbagh‘s article ―Twitter and the Mystery Footballer‖. Y 2006. It has been noted that freedom of speech is outlined by its permissible limits. the inability to strike twitter and online visits to this platform reached a record number. Moreover. in over. Again. this balancing act is performed by placing the competing rights in the proper context. in trying to restrict speech online while ignoring its digital context. In the same vein. depending on the levels of concentration of power in the informational industry Weiser.000 users visiting this website in one month. available online: <http://www. London 71 Y Benkler ibid p. L 2001.fipr.co. eventually leads to monopolies in online publishing73.org/APIG_DRM_submission.16 [Draft . this was translated into more than 420. Namely.uk/technology/organgrinder/2011/may/20-teitter-superinjunctions>. Weiser suggests an intellectual property model which ranges between commons and proprietary policies. it is shown once again that we are in fact led to the paradox of offering insufficient protection to its competing right.restricting free speech for the sake of maintaining old views. Thus. its balancing methodology online and the problematic implications this seems to have for the right at hand. the under-protection lies in the fact that overrestricting speech has a deep impact on the underlying value protected by intellectual property: innovation.guardian. Innovation and Intellectual Property Policy'. which in turn stifles innovation and creativity. 'The Internet. 70 See Lessig. Conclusion: Towards a digitization of human rights online This paper has highlighted the legal approaches to free speech. 103. Benkler. inadvertently gave rise to the public knowledge of these photos. P 2003. Colum. which mentions Hal Varian‘s concerns that a strong DRM system can lead to monopolies in the platform industry and be more beneficial for the online corporations building platforms for accessing content. in Guardian. The Wealth of Networks: How Social Production Transforms Markets and Freedom. Available online: <http://www. Although there are several parameters that are used to localize each context. New York . which are the result of a fair balancing with other competing interests and rights. Yale Univ Pr.

or the law begins to change‖74. the ECJ made an interesting remark on the transnational implications of enforcing this court order: ―It is not contested that the reply to the question whether a transmission is lawful also depends on the application of statutory exceptions to the copyright which vary from one member state to another. in some member states certain works fall within the public domain or can be posted online free of charge by the authors concerned‖75. the Chairman of Google. compositeurs et éditeurs ( SABAM). In this case the ECJ ruled that a court order to a Belgian ISP to monitor all electronic customers for preventing illegal file-sharing was overbroad and impeded –among others. what is their suggested alternative? Does this also imply the necessity to make new rights for offering sufficient constitutional protection to our fundamental rights like free speech in the digital era? My personal view is that the existing human rights protective framework can still efficiently shield our right to free speech online as long as we embrace this new digital context for speech. Its understanding will help us contextualize online speech properly and eventually come up with a new deal for the right‘s protection in the digital era.Please Do Not Cite] the proper balance leads further to an over-restriction of free speech online without necessarily offering sufficient protection to its competing right. available online: <http://www. Hopefully. Online entrepreneurs seem to have already understood this shift. we need to learn from the net‘s structure. As Eric Schmidt.com/english/news/In-Madrid-Court-Google-Challenges-Europes-Privacy-Laws110512364.vianews. if this is indeed the case and our current legal approaches can no longer contribute towards striking a fair balance for free speech online. Noting that this could potentially result in over-blocking and not lead to a fair balance. in which human rights function. This involves trading our old legal approaches for new. spatiality for multidimensional reality. clash and interplay can contribute towards striking a fair balance for free speech online. property for quasicommons and state coercion monopoly for multi-stakeholder division of powers.―will absolutely continue to come up. accessed 11-12-11 75 Scarlet Extended SA v Société belge des auteurs. ECJ C-70/10 at 52 . In the words of Professor Joel Reidenberg. proprietary status and state power by realizing the structure of the digital environment is apparent in this ruling.on their right for free expression. Moreover. The ability to digitize the concepts of spatiality. Although the most recent legislative attempts regarding online privacy and intellectual property seem to continue disregarding the internet‘s ubiquitous and collaborative nature. observed last May in his speech addressing the eG-8 Forum 74 Professor Joel Reidenberg in the Voice of America on 1-2-2011.html>. regulative problems in cyberspace –like the ones described earlier. Although we could still utilize the existing free speech protective framework. it will provide the basis for more similar ruling to come in the future. Understanding better this new environment. The very recent ECJ ruling in Scarlet v SABAM is an encouraging development in succeeding to strike a fair balance for online free speech.17 [Draft . there are also notable exceptions. Yet. until one or two things happens: Either the technology companies begin to build architectures that enable compliance with existing law.

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