Internet and human rights law: Introduction

• DOI: http://doi.org/10.1111/eulj.12309
• Published date: 01 March 2019
• Author: Mart Susi,Oreste Pollicino
• Date: 01 March 2019

SPECIAL ISSUE ARTICLE

Internet and human rights law: Introduction

Oreste Pollicino* |Mart Susi

†

The rise of the Internethas resulted in unprecedented opportunities and advantages for individuals, who can now avail

themselves of newtechnologies to exercise fundamental rights. This scenario creates a new‘digital citizenship’,where

use of the Internet is now crucial for a variety of situations. However, along with new opportunities, the digital

technologieshave also brought newchallenges and threats forindividuals' rights. So,while at the origins it was disputed

whether nationstates had any say in respect of Internetregulation, the focus of academicdebates has quickly moved to

the possible use of Internet Bills of Rights and the role of courts, most notably in the absence of ad hoc established

legislativesolutions. Only recentlydid the European Union establisha specific strategy thatresulted in the Digital Single

Market reform in order to capture the most significant developments and provide an up‐to‐date legal framework. So,

importantquestions came up from both a theoreticaland practical perspective, and it is these that thisspecial issue aims

to addressfrom a constitutionaland comparative perspective.In fact, these questionstouch upon clustersthat are at the

heart ofconstitutional law and constitutional theory,such as separationof powers, legitimacy,legal reasoning and funda-

mental rights.This special issue moves fromthe most theoretical questions and then explores the most practicalones.

First, the essay by Jonathan Penney provides an introduction to the rise of ‘Internet rights’and explores the

challenges for ‘classical’civil, political and social rights in the digital age from the perspective of their theoretical

framing. He advocates a more positive theoretical framework for Internet rights, noting that the attempts to theorise

them are mainly negative and aim at addressing restrictions. Such framing would not be appropriate to cope with the

most important challenges for Internet rights, such as bulk surveillance and cybercrime.

But the various understanding of fundamental rights ‘on the merits’plays a crucial role as well from a

theoretical and practical perspective, with important consequences for courts trying to unravel transnational and

multi‐jurisdictional conflicts occurring on the Internet. This is indeed the point made in the article by Bilyana Petkova,

which focuses on how the different and political scenarios affect the balance between free speech and data privacy

in Europe and the United States.

Once the background and the ‘material subject’of investigation (‘Internet rights’) are set, the special issue includes

the essay by Oreste Pollicino, whose goal is to capture the role of courts in the interpretation and application to the

Internet of the various standards of protection of freedom of speech in the US and in Europe. The essay shows how

courts have taken different views and reacted in a different manner to the rise of digital technologies, depending on

the specific constitutional background and the way they carry out free speech‐based adjudication.

In this scenario, social media platforms play a crucial role. Thomas Wischmeyer looks at this perspective in his article

by addressing the idea of media as a sphereof ‘institutional freedom’and how this concept can be applied to strengthen

the democratic function of social media. In particular, his focus on the widespread criticism of the Network

Enforcement Act adopted in Germany in 2017 allows us to understand the challenges of social media regulation.

*

Full Professor of Constitutional Law, Bocconi University, Italy.

†

Professor of Human Rights Law at Tallinn University.

Received: 12 February 2019 Accepted: 17 February 2019

DOI: 10.1111/eulj.12309

120 © 2019 John Wiley & Sons Ltd. Eur Law J. 2019;25:120–121.wileyonlinelibrary.com/journal/eulj