Online free speech at a turning point: a new policy model based on net architecture

Free speech seems to be at a turning point in the digital era: online intermediaries acting in a non-transparent and unaccountable manner either as state agents or to their own benefit, have shaken the trust in the public right for free speech. The reiteration of the conventional legal approach is thus imperative in the digital era. The thesis examines the challenges posed for the regulation of free speech online from a public law perspective and ultimately suggests a new policy model following a techno-legal approach, namely taking into account the net architecture. For this, the thesis is structured in three parts. The first part (Chapters 1 and 2) explores the new ecology for free speech online, the questions posed for its constitutional protection and the responses available in free speech jurisprudence. The thesis critically examines the efficacy of the free speech jurisprudence as to its afforded protection online and it is contended that Baker’s theory on liberty seems to be holding some potential. The second part (Chapters 3 and 4) moves on to identify the common ground between the core net architectural principles and free speech. A descriptive part of the internet’s history, design and administration is further analysed on its capacity to promote free speech. At the same timetime conventional legal approaches fail to embrace the net infrastructure. Thus, free speech jurisprudence needs to be properly contextualised online. In other words, paraphrasing Lessig’s famous dictum “law needs to be encoded”. The third part (Chapters 5 and 6) explains how this suggested approach functions: Baker’s concept of liberty –as the most fitting of all free speech rationales- is put in an online context. The thesis suggests a new policy model for online speech based on the potential of the net architecture as a perfect substantiation of Baker’s theory on liberty: self-realisation is identified as both the value determining the regulatory scope for speech as well as the basic concept characterising the structure of the internet.