The Respect for Freedom of Expression and the Exercise of State Jurisdiction Online in International Human Rights Law

Abstract

This thesis focuses on the exercise of State jurisdiction online and the fulfilment of freedom of expression in the cyberspace. In particular, the thesis aims to answer the following research questions: when and under what conditions can online acts be considered to have happened within a State’s jurisdiction according to human rights law? Is the extraterritorial exercise of State jurisdiction to regulate online content compliant with the freedom of expression provisions contained in human rights law? These questions are investigated through the analysis of key domestic Internet-related cases where States have exercised jurisdiction over cross-border online content extraterritorially. This analysis highlights the negative implications of these extraterritorial exercises of State jurisdiction on freedom of expression online. On the other hand, the thesis investigates the meaning of State jurisdiction online according to the European Convention of Human Rights, the American Convention of Human Rights, the African Charter on Human and Peoples’ Rights and the International Covenant on Civil and Political Rights. The aim of this analysis is to understand how the jurisdictional models developed by the human rights courts work in an online environment. The analysis highlights the difficulties presented by the application of the spatial and personal models of jurisdiction to online acts and investigates the extraterritorial effects model, which might be better suited to deal with online acts. Finally, the thesis explores whether the extraterritorial exercises of State jurisdiction examined in the first part of the thesis are compliant with the accessibility and foreseeability requirements of the ‘prescribed by law’ criterion of the human rights conventions. The analysis of this point concludes that, although the domestic laws authorising these exercises of jurisdiction are compliant with these requirements, their interpretation by the Courts should evolve to take into account the special, borderless nature of online content.