Metaphors, Judicial Frames, and Fundamental Rights in Cyberspace

2020 ◽  
Author(s):  
Alessandro Morelli ◽  
Oreste Pollicino
Keyword(s):  
Freedom Of Expression ◽  
Point Of View ◽  
Fundamental Rights ◽  
The Internet ◽  
Court Case ◽  
Supreme Courts ◽  
Degree Of Protection ◽  
Digital World ◽  
European Court ◽  
External Point

Abstract How do legal imagination, metaphors, and the “judicial frame” impact the degree of protection for free expression when the relevant (technological) playground is the world of bits? This Article analyzes the so-called judicial frame, focusing on legal disputes relating to freedom of expression on the Internet. The authors compare the European Court of Human Rights and the U.S. Supreme Court case law from a methodological perspective. The Article shows how the adoption by supreme courts of an internal or external point of view in relation to the Internet affects not only the use of different metaphors to describe the digital world, but also the balance struck between the fundamental rights at stake.

scholarly journals Evolution of the fundamental rights and freedoms catalog: access to internet

2017 ◽  
pp. 48-56
Author(s):  
ANDRA IFTIMIEI
Keyword(s):  
Large Scale ◽  
Freedom Of Expression ◽  
Internet Access ◽  
Fundamental Rights ◽  
The Internet ◽  
Free Access ◽  
European Court ◽  
The Moment ◽  
Fundamental Rights And Freedoms ◽  
The Individual

The Internet is today the main source of information for the individual. Taking such a large scale, the question arises whether Internet access should not be a fundamental right. There is, undoubtedly, an evolution of the catalog of fundamental rights and freedoms, but we are proposing to debate the issue of classifying access to the Internet as fundamental rights. A first step in this direction has been made by the United Nations, through the resolution that states should refrain from restricting free access to the Internet. At the same time, access to the Internet is considered an integral part of freedom of expression. Thus, in this article we will identify incidental legislation and aspects of constitutional jurisprudence and the European Court of Human Rights. Also, the central body of the article focuses on the punctual analysis of the fundamental rights features, and in conclusion we will conclude if Internet access is at the moment or not a fundamental right.

How Freedom of Expression Defines the Parody Exception

2019 ◽  
pp. 134-166
Author(s):  
Sabine Jacques
Keyword(s):  
United States ◽  
Human Rights ◽  
Intellectual Property Rights ◽  
Freedom Of Expression ◽  
The United States ◽  
Fundamental Rights ◽  
The United Kingdom ◽  
European Court ◽  
Margin Of Appreciation ◽  
Proportionality Test

This chapter examines the relevance of freedom of expression to the parody exception. It first considers the debate on the interaction between intellectual property rights and fundamental rights before discussing the ways in which freedom of expression may address the excessive expansion of exclusive rights as well as the outer limits of the parody exception. The chapter explains how human rights are embodied in the parody exception and how factors established in the European Court of Human Rights jurisprudence may legitimately restrict freedom of expression. It also explores how national legislators and courts in France, Australia, Canada, the United States, and the United Kingdom strike a balance between freedom of expression values and copyright values. It shows that the outer limits of the parody exception in each jurisdiction are determined by the influence of freedom of expression on copyright, the margin of appreciation, and the proportionality test.

scholarly journals Internet and freedom of expression in the case law of the European Court of Human Rights

2020 ◽  
Vol 54 (3) ◽  
pp. 1023-1042
Author(s):  
Ljiljana Mijović
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Case Law ◽  
Private Life ◽  
European Convention ◽  
The Internet ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Right ◽  
And Control

Internet as a means of communication, whatever the type of information it might be used for, falls within the exercise of the right to freedom of expression, as guaranteed by Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. As established in the European Court's case law, freedom of expression constitutes one of the essentials of a democratic society, therefore limitations on that freedom foreseen in Article 10 § 2 of the Convention are to be interpreted strictly. In order to ensure effective protection of one's freedom of expression on the Internet, States bear a positive obligation to create an appropriate regulatory framework, balancing the right to freedom of expression on one and the limitations prescribed in Article 10 § 2, on the other hand. Special attention in doing so is to be paid to the risk of harm posed by content and communications on the Internet to the exercise and enjoyment of other human rights and freedoms guaranteed by the European Convention, particularly the right to respect for private life. While it is the fact that the electronic network, serving billions of users worldwide, will never be subject to the same regulations and control, because of the national authorities' margin of appreciation, the European Court established commonly applicable general principles regarding the Internet as a media of exercising right to freedom of expression.

Private Power and New Media

2012 ◽  
pp. 81-96 ◽  
Author(s):  
Angela Daly
Keyword(s):  
Multinational Corporations ◽  
Freedom Of Expression ◽  
Fundamental Rights ◽  
The Internet ◽  
Information Warfare ◽  
Information Portal ◽  
The Us ◽  
Private Power ◽  
The Usa ◽  
Technological Means

The focus of this chapter will be the recent conduct of various corporations in withdrawing Internet services provided to information portal WikiLeaks in light of the controversy surrounding WikiLeaks’ publishing classified documents of correspondence between the US State Department and its diplomatic missions around the world in late 2010. The implications for freedom of expression (especially the right to access information) on the Internet will be examined in the wake of WikiLeaks, particularly in the context of the infringer being a private actor, and one comprising a mono- or oligopoly. The motivation of these private actors in contributing to the suppression of WikiLeaks will be assessed to examine whether it constitutes an example of Birnhack and Elkin-Koren’s “invisible handshake,” i.e. the “emerging collaboration” between the state and multinational corporations on the Internet that they posit is producing “the ultimate threat.” The legal recourse open to WikiLeaks and its users for the infringement of fundamental rights will be examined, especially the First Amendment to the US Constitution since the geographic location for these events has mostly been the USA. Finally, the postscript to the WikiLeaks controversy will be considered: the “information warfare” conducted by hackers will be examined to determine whether the exercise of power of these Internet corporations in a way which infringes fundamental rights can be checked by technological means, and whether hackers are indeed the true electronic defenders of freedom of expression.

The right to the protection of religious feelings versus freedom of expression in the light of the Constitution of the Republic of Poland and the European Convention on Human Rights

2019 ◽  
Vol 1 (2) ◽  
pp. 58-83
Author(s):  
Janusz Roszkiewicz
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Case Law ◽  
Point Of View ◽  
European Convention ◽  
Constitutional Court ◽  
A Value ◽  
European Court ◽  
The Republic ◽  
The Right

This article concerns the right to the protection of religious feelings as a value which justifies a restriction of freedom of expression. The right to the protection of religious feelings can be protected by three methods: civil, penal and administrative. The issue is discussed from the point of view of the Constitution of the Republic of Poland and the European Convention on Human Rights, with particular emphasis on the case-law of the Polish Constitutional Court and the European Court of Human Rights in Strasbourg.

scholarly journals The Relative Autonomy of the EU Human Rights Standard

2008 ◽  
Vol 4 (2) ◽  
pp. 199-204 ◽  
Author(s):  
LB ◽  
JHR
Keyword(s):  
Family Life ◽  
Freedom Of Expression ◽  
Fundamental Rights ◽  
European Court Of Justice ◽  
Bill Of Rights ◽  
The European Union ◽  
Court Of Justice ◽  
European Court ◽  
Traditional Sense ◽  
The Eu

To this day the founding treaties of the European Union contain no legally binding bill of rights in the traditional sense protecting religion, privacy, family life, the freedom of expression, and so forth. As we all know, while the European Court of Justice initially rejected appeals relying on fundamental rights as found in national constitutions, the Court changed its position under pressure of German courts.

scholarly journals Romania: derogation from the European Convention on Human Rights – freedom of expression during public emergency

2021 ◽  
pp. 39-54
Author(s):  
Mónika Márton
Keyword(s):  
Human Rights ◽  
Freedom Of Expression ◽  
Case Law ◽  
The State ◽  
Fundamental Rights ◽  
European Convention ◽  
State Of Emergency ◽  
European Court ◽  
Public Emergency ◽  
Fundamental Rights And Freedoms

A pandemic can provide a textbook example for the restrictions of fundamental rights and freedoms. Romania has decided to derogate from the application of the European Convention on Human Rights during the state of emergency caused by the COVID-19 pandemic. The questions discussed in this paper are whether the derogation of Romania fulfils the criteria established by the case-law of the European Court of Human Rights. If the answer is affirmative: does it have any effect on the inherent limitations on the freedom of expression as stated in art. 10 of ECHR?

scholarly journals Expression of opinion through Acts. A brief analysis of the Hungarian Constitutional Courts practice

2021 ◽  
Author(s):  
Szabolcs Stock
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Freedom Of Expression ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
European Court ◽  
The Right

The aim of the article is to present how one can excercise their freedom of expression through acts. I focus ont the decisions of the Hungarian Constitutional Court, the European Court of Human Rights and the U. S. Supreme court. I analyze these decisions, and compare the fundamental rights that can collide, such as freedom of expression versus the right to property, which one should prevail when they come into collision. I also study how one can decide, whether the act should fall within the protected circle of the freedom of expression, or it should be penalized as a crime, or misdemeanor.

scholarly journals Instruments for the implementation of the constitutional right to assemblies and participations in the digital space from Moldova

2021 ◽  
Author(s):  
Alexandru Tarna ◽  
Keyword(s):  
Point Of View ◽  
Fundamental Rights ◽  
The Internet ◽  
Human Society ◽  
Daily Lives ◽  
Digital Space ◽  
Constitutional Right ◽  
The Republic ◽  
The Right ◽  
The Impact

The protection of fundamental rights has become an axiom that no longer requires the luxury of argumentation. From another point of view, the protection of human rights on the Internet is only emerging. This is all the more so, as the internet plays an important role in people’s daily lives and in all aspects of human society. The impact of the Internet on social, economic and cultural activity is also growing. The scientific research will be devoted to the following aspects related to meetings and participations in the digital space in the Republic of Moldova: (1) freedom to choose web pages, applications or other services for setting up, joining, mobilizing and participating in groups and social assemblies; (2) the right to peaceful online protest; (3) freedom to use available online tools to participate in local, national and global public policy debates, legislative initiatives and public elections.

Judicial Dialogue between the European Court of Human Rights and the Court of Justice of the European Union in the Field of Legal Liability for Posting Hyperlinks

2019 ◽  
Vol 21 (5) ◽  
pp. 432-448
Author(s):  
Bartłomiej Oręziak
Keyword(s):  
European Union ◽  
Human Rights ◽  
Freedom Of Expression ◽  
Case Law ◽  
The Internet ◽  
The European Union ◽  
Functional Interpretation ◽  
Court Of Justice ◽  
European Court ◽  
The Relationship

Abstract This paper discusses the judicial dialogue between the European Court of Human Rights and the Court of Justice of the European Union regarding the placing of hyperlinks on the internet. Firstly, the case law of the CJEU in the light of the linkage is analysed. This shows the scope of restrictions created by this judicial authority in the area of copyright. Secondly, the judgment of the ECHR will be cited and analysed as regards the relationship between placing hyperlinks on the internet and freedom of expression. There is a judicial dialogue with the CJEU, which focuses attention on the human rights aspect of hyperlinks. Thirdly, the correlation between the jurisprudence of the CJEU and the ECHR will be analysed, including a functional interpretation. The paper ends with a discussion about the potential of this judicial dialogue for the wider purpose of building an optimal model for European dialogue.

Sign in / Sign up

Export Citation Format

Share Document