Free Speech in the 21st Century

The right to freedom of opinion and expression is enshrined in several international and regional human rights instruments. Presenting the newest research on the free speech’s unique features was the aim of the Conference “Free Speech in the 21st Century” held on July 3-4, 2020. The Centre for Security Analysis and Prevention (CBAP) was invited to cover and participate in the conference of the world’s leading freedom of expression scholars and experts who attended this conference in a virtual event. It was organized and moderated in Ljubljana, Slovenia, by the Alma Mater Europaea international university and the International Association of Constitutional Law (IACL).

The two-day conference covered one of the essential democratic rights, and at the same time, one of the most controversial, which affects individuals, private and governmental entities in the twenty-first century.

Experts and participants discussed the freedom of the speech in the era of new technologies and how it affects democratic rights all over the world from different perspectives.

Jurij Toplak, a University Professor at the Alma Mater Europaea and the University of Maribor, chaired and moderated the event. Toplak, a visiting professor at Fordham Law School in New York, serves as the co-conventor of the IACL’s Free Speech research group together with Jimmy Chia-Shin Hsu, an Associate Professor at the Academia Sinica, Taiwan.

The attendees included the world’s leading scholars such as Harvard Law Professor Mark Tushnet; Jacob Rowbottom of Oxford, András Sajó, a member of Facebook’s Oversight Board; University of Tokyo Professor Itsuko Yamaguchi or Elisa Bertolini of Bocconi University.

The participants agreed that digital transformation and the new forms of digital communication are affecting legal interpretations. Digital media have infiltrated everyday life, making people adapt their behaviour to the new digital context.

In his keynote lecture, Harvard Law Professor Mark Tushnet suggested that we might consider treating certain types of messages, such as threats to individuals, or dissemination of “fake news”, when they are shared on social media, differently from when they are disseminated in traditional media. The low cost, enormous reach, and ability to spread messages anonymously may justify different old and new media treatments.

András Sajó, a member of Facebook’s Oversight Board and former vice-president of the European Court of Human Rights, explained in his keynote talk the change which is currently undergoing in the understanding of the freedom of speech. Freedom of expression, which has been so crucial for democracy, is now fading away and becoming irrelevant because the communication is moving to private platforms where constitutional protections do not apply. The relationship between the user and the platform is contractual, and the platform is not bound by the constitutional norms the way authorities are. We are approaching an era of private censorship in which a small number of web platform owners control global communication.

With this transition currently happening, the limits of permitted expression are changing. Something that is today protected under the freedom of speech can under the new understanding and through legislative amendments in the near future be considered a crime. It may be limited for data protection, the right to be forgotten, the presumption of innocence, and defamation.

Participants agreed that under the present understanding of the law, search engines and social media are permitted to prioritize websites to shape global public opinion and affect elections considerably. These platforms are enormously powerful. The number of media owners is shrinking, and the information we receive may soon be in the hands of the few. According to Klemen Jaklič, a judge at the Constitutional Court of Slovenija, the world is beginning to understand the situation in which some post-communist countries have been since the 1990s. The constitutions do guarantee fundamental freedoms, but if a few control communication, there is no plurality in the information a person receives. Several participants suggested that to keep the freedom of expression, we need a new regulation of search engines and social networks.

Professor Olivier Sylvain of Fordham University School of Law in New York, former European Court of Human Rights judge Boštjan M. Zupančič and Oxford University Professor of Law Jacob Rowbottom participated in a roundtable about social media. The roundtable provided a platform for examining and discussing the challenges and contributions that the new technologies can bring to freedom of expression and media freedom. The experts discussed the impact of new uses in the communication, associated with the use of symbols and images which act as words and the implication of algorithms that are increasingly meditating the communications, changing the practical conditions of speech as well as the entities that control, limit, and censor speech.

Rowbottom emphasised that Freedom of Expression applies to public authority actions, while the communication on web platforms is at the discretion of the owner. He advocated for a right to access platforms, similarly as he had advocated for the protesters’ right to access privately owned land when these are essential forums for expression. He advocated for the state’s regulation similar to the one with the broadcasters. Rowbottom recommends introducing certain responsibilities for social media, including a fair appeals process before the content is taken down or the account is blocked.

Zupančič, the author of a recently published book On the European Court of Human Rights (Eleven 2019), advocated an interpretation of the European Human Rights Convention’s Article 10 under which the web search engines and social media would be bound to respect users’ right to impart information.

The conference featured thirteen panels. During these sessions, experts discussed the new scenarios, the national policies from their respective countries, and the international regulations from the European Court of Human Rights, Inter-American Court of Human Rights and the United Nations. All the participants agreed that digital media had changed the way we interact and communicate. This change urges us to rethink the current legal framework, to consider the new models of communications, and evaluate the legal standards that are applicable to the online speech.

The experts agreed that free speech incidents attract intense media coverage and regularly provoke debate about its limits. In the 21st century, the formerly divided status of speakers, users, and intermediaries have become interchangeable, and the anonymity of all the practitioners is raising calls for regulatory measures. It is critical to review commitment on a global scale for free speech and enshrined constitutional values.

On the second day, the experts covered data protection and privacy in the digital era. Private communication is not isolated anymore. It reaches a big audience, and as a consequence, its impact can be extremely significant. Most of the interesting issues regarding the way we communicate are not merely associated with the right of freedom of expression. They address data protection, transparency, the right to information and the right to be forgotten.

The debate was vital to understand the policies and practices of freedom of expression employed by national authorities and private entities worldwide. The experts focused on clarifying the use of hate speech, the narratives of religious freedom, censorship, public participation, decision-making, and the state of exception.

The event will serve as the basis for further research on the impact of freedom of expression, including panels on this topic at the next IACL World Congress, scheduled for 2022 in Johannesburg.

Alma Mater Europaea is based in the Austrian city of Salzburg, with campuses in Slovenia and several other countries. It was founded by the European Academy of Sciences and Arts, a society of around 2000 prominent scholars, including 32 Nobel laureates.

International Association of Constitutional Law (IACL) is an international scholarly association devoted to constitutional law advancement. It provides a forum in which constitutionalists from all parts of the world can research each other’s systems, reflect on their own, and engage in fruitful comparison.

 

Written by Judith Santalla Corcoba

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