Online Free Expression and Its Gatekeepers

Abstract

This chapter covers the pressing issues of online free expression at the time of global telecommunication services and social media. What once was the domain of the state has become the prerogative of private global companies – it is their terms of service and sense of social responsibility that have replaced local perceptions of morality and set limits to individual personal rights. Whether protecting privacy or defending against defamation, it is the Internet Service Provider who can offer tools far more effective and prompt than any national court and law enforcement agency. And even though the right to free expression is firmly rotted in the global standard of article 19 UDHR, nowhere than online are the differences in its interpretation, originated by history, morality and religion, more palpable. The paper aims to discuss each of the three composite rights of free expression (the right to hold, impart and receive information and ideas) and identify the actual limitations originated by national laws. The author emphasizes states' positive obligation to take active measures aimed at protecting free expression, ensuring that all human rights are “protected, respected and remedied”. This obligation makes the interrelationship between national lawmakers and international telecommunication service providers complex as the latter serve as the actual gate keepers of free expression in the information society. The paper covers a discussion on how different countries deal with this challenge through various approaches to ISP liability, including the notice-and-take down procedure as well as content filtering (preventive censorship). The author goes on to criticize those mechanisms as enabling ISPs too much freedom in deciding upon the shape and scope of individuals' right to impart and receive information.