Judicial protection of fundamental rights in the transition from the world of atoms to the word of bits: The case of freedom of speech

AuthorOreste Pollicino
DOIhttp://doi.org/10.1111/eulj.12311
Publication Date01 Mar 2019
SPECIAL ISSUE ARTICLE
Judicial protection of fundamental rights in the
transition from the world of atoms to the word of
bits: The case of freedom of speech
Oreste Pollicino*
Abstract
This article underlines the role of Courts in protecting fundamental rights in the atomic and the
digital dimension. The main aim of this work is to show how the coming of the Internet has affected
the exercise and the judicial protection of freedom of expression in a comparative perspective. In
order to answer this research question, this study will focus on the role of Courts as playmakers
in interpreting and solving issues deriving from interconnected legal regimes affecting the protection
of fundamental rights and, especially, free speech. More specifically, the comparative focus will be
on the decisions of the European Court of Justice, the European Court of Human Right and the
US Supreme Court.
1|INTRODUCTION
How has the coming of the Internet affected the exercise and the judicial protection of freedom of expression in a
comparative perspective? Responding to this research question would require one to take into account at least
one factor: the role of Courts. Nowadays, Courts act as playmakersin interpreting and solving issues deriving from
interconnected legal regimes affecting the protection of fundamental rights. Indeed, their position and ability to
dialogue are even more amplified in the digital age.
This is due to some peculiarities of the (digital) environment where freedom of expression is exercised. The first
peculiarity concerns the gap between law and technologies. Usually, legal reforms lag behind technological develop-
ments. As a result, the inertia of lawmakers in addressing this natural asymmetry weighs heavily on the shoulders of
Courts. It should come as no surprise that Courts have played a key role in working out new solutions to new
challenges generated by digital technologies.
The second reason at the basis of the choice to focus on freedom of expression online as shaped by Courts is
connected to the jurisdictional issues brought by the rise of the Web, that resulted in crucial implications for the
protection of fundamental rights. This second point is particularly relevant as Courts have been able to eradicate
and establish jurisdiction successfully challenging the socalled anarchic nature of the Internet. This approach can
be captured by looking at the beginning of the new millennium when national Courts started to reject the socalled
*
Full Professor of Constitutional Law, Bocconi University, Milan, Italy
Received: 12 February 2019 Accepted: 17 February 2019
DOI: 10.1111/eulj.12311
Eur Law J. 2019;25:155168. © 2019 John Wiley & Sons Ltd.wileyonlinelibrary.com/journal/eulj 155

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