December 09
2021
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Judicial Protection of Fundamental Rights on the Internet

Oreste Pollicino

review by

Maria Tzanou

How does the judiciary approach the Internet and digital technologies? Does the world ‘of bits’ differ from the world ‘of atoms’ and if so, in what ways? Why judicial value frames matter in the interpretation and adjudication of the digital environment? How do such frames emerge and how are they shaped in different jurisdictions?  Judicial Protection of Fundamental Rights on the Internet addresses all these fascinating questions by focusing on two fundamental rights: freedom of speech and privacy. It examines the impact of new technologies on these fundamental rights as well as the right to data protection by focusing on the US and the European judicial landscapes.

The -obvious- divergences that arise are significant. They, firstly, concern the different judicial frames of approaching freedom of expression and privacy across the two sides of the Atlantic. In Europe, the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) have constructed the scope of these fundamental rights by mainly focusing on the challenges arising in the Internet context. On the other hand, the US Supreme Court and US courts have adopted a different starting point based on the opportunities (rather than the challenges) for fostering freedoms presented by the Internet.  This views the Internet as a new channel to extend and amplify the ‘free marketplace of ideas’ and thus, foster protection of freedom of speech.

But judicial frames do not emerge out of nowhere. They belong to a certain social context and are shaped by political power- or the lack of it. Pollicino elucidates this point very well in the book, by discussing the importance of ‘metaphorical legal reasoning’. Metaphors (from the ancient Greek meta pherein to ‘carry over’) must be carried over with care, paying due attention to the broader context. Only in this way can we properly comprehend their meaning and dynamic nature. The ‘free marketplace of ideas’ metaphor is an excellent example of this. Can the competition of (true and false) ideas and information lead to a meaningful way to achieving truth or such a matter should not be left to markets characterized by so significant power asymmetries such as the Internet context which is dominated by a handful of big tech companies (Google, Facebook, Amazon, Apple and Microsoft)? Such questions are important because divergences between the US and the European approaches lead to clashes as the seminal Yahoo!v Licra  case to which the book often refers or the most recent CJEU’s  Schrems II judgment demonstrate.

Nevertheless, the answers to such transatlantic clashes are much more complex and nuanced than oversimplified binary dilemmas. As the book aptly observes, ‘digital sovereignty is not expressed in the same way across the globe but reflects the political and (constitutional) values extended to the information society’ (p. 183). A move towards ‘digital constitutionalism’ is, therefore, fundamental to deal with the rise of private powers implementing algorithmic technologies. It is up to the judiciary to decide how they will employ the tools and procedures of ‘digital constitutionalism’. Will this be a process of evolution (looking at using existing mechanisms such as the horizontal application of fundamental rights in the Internet context) or rather of revolution (adopting a new set of procedural and substantive rights to address digital technologies)? The future will show the relevance of ‘digital constitutionalism’ and the role of the courts in shaping it. In the meantime, Judicial Protection of Fundamental Rights on the Internet provides a very useful and clear framework for critically reflecting on these issues from a transatlantic perspective.

 

Dr Maria Tzanou, Senior Lecturer in Law, Keele University, UK.

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