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Social media, freedom of expression and its resctrictions – countering discrimination in cyberspace

2021.06.17. @ 16:00 - 18:00

Organizers and speakers:

Prof.dr.sc. Sanja Radovanović,

Novi Sad Faculty of Law

 

Prof.dr.sc. Davor Derenčinović,

Zagreb Faculty of Law

 

 

Place of the event: Novi Sad Faculty of Law, Zagreb Faculty of Law

Format of the event: Webinar through Google Meet platform (all participants should have Google account to access the webinar)

Languages: Croatian, Serbian

 

SUMMARY

 

The webinar was organized by Professor Sanja Radovanović, University of Novi Sad, Faculty of Law and Professor Davor Derenčinović, University of Zagreb, Faculty of Law, both researchers of the Central European Professor’s Network.

The webinar that was planned and organized as a dissemination event of the research carried out within the framework of the Central European Professors’ Network coordinated by the Ferenc Mádl Institute of Comparative Law gathered master and doctoral students as well as teaching staff from two faculties (more than 30 participants) to discuss various relevant issues concerning social media, freedom of expression and its restrictions in democratic societies. This webinar focused on preventing discrimination in cyberspace and other forms of expression that threaten European values, democracy, human rights, and the rule of law, such as disinformation campaigns aiming to disseminate fake news on social media and networks.

In this context, the speakers, among other things, focused on the concept of responsibility of electronic media for the user-generated content and prevention based-models aimed at raising public awareness about harmful internet content and increasing media literacy.

The format of the webinar consisted of two 15 minutes presentations given by Professors Radovanović and Derenčinović that was followed by the discussion of the participants. 

Prof. Davor Derenčinović in his presentation pointed out that according to some estimates, in 2019, slightly more than 50% of people in the world had access to the internet, while in 2009, this number was significantly lower (less than 5%). Just over a year later, that number is estimated at over five billion people, somewhere around 65% of the world’s population. When it comes to social media, according to some estimates, in 2017, there were about 2.86 billion users, in 2020 3.6 billion, and it is estimated that by 2025 about 4.41 billion people will have their profiles on social networks. This exponential growth of users has not been coupled with increased media literacy, knowledge about the risks of victimization on the global networks, and public awareness about the harmful content. Undoubtedly, such social context turned people, most of whom use the internet and social networks, into more confusion and disorientation and made them more vulnerable to victimization, abuse, and manipulation both physically and in cyberspace.

The specific aspect of abuse in cyberspace is the phenomenon of discrimination on social media and networks. There are numerous examples of using speech that does not enjoy protection under article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The jurisprudence of domestic courts and the European Court of Human Rights confirm elements of a legitimate aim and proportionality principle in restricting the speech that, without having any function in a democratic society, causes harm to others.

Prof. Sanja Radovanović in her presentation explained legal framework for freedom of expression as well as its restrictions. Special attention was paid to discrimination, as one of the most often conducted offences against the human rights. She pointed out that freedom of expression could not be the defense in the case of discrimination and particularly when verbal expression of thoughts could be considered the hate speech.

Professor Radovanović introduced the legal means to protect right of equality and right of expression. Central part of her presentation were civil law actions, among which the most frequently used is damages compensation. With this regard, Prof. Radovanovic explained that there are several laws in Serbia that regulate this issue. As much as it could be of use for effective combat against the hate speech, existence of different rules regarding the damage compensation could be of cause for confusion.

This conclusion takes into account the different rules on the question who is reliable for discrimination and hate speech on the internet, what should injured party has to prove in order to achieve compensation, how to calculate the range of damage and therefore the amount of money ought to be paid for damage compensation. Additionally, general rules of obligation law do not offer effective action in the meaning of protection of human rights, but obligation law framework is often used in practice. According to analyzed case law, the dominant motive to ask for protection is exactly damage compensation. For that reason, it is highlighted that practitioners have difficult task to make distinction between the action based on real injury of the right of equality and those inspired by money compensation.    

The discussion, which was attended by a dozen participants (teachers and students), covered the following topics: application of Article 22 of the GDPR in the context of combating hate speech, double legal proceedings (through criminal and civil proceedings) for violations against honor and reputation, the right to delete personal data and the right to be protected against discrimination. There was also discussion about the content and scope of the right to forget as well as the concept of so-called private sector self-regulation in the context of freedom of expression on the internet and social networks.

Participants discussed the legal basis of the competence of private companies in filtering certain content that is not protected by freedom of expression and the possibility of seeking judicial protection. The prevailing view is that the decision of the private sector must be subjected to judicial scrutiny in proceedings concerning the freedom of expression and filtering of illicit content. One of the relevant topics in this regard is the jurisprudence of the European Court of Human Rights in proceedings under Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. In the context of Delfi v. Estonia, the issue of the elements for determining the object of protection was raised (the applicant was not a member of a minority group but a director of a private company).

Broadening of the concept of hate speech in the recent jurisprudence of ECHR has also been discussed (e.g., Lilliendahl v. Iceland). Arguments have been put that a distinction should be made between some forms of expression that are offensive and shocking and hate speech that is very close to the incitement to violence. The discussion also pointed out that in practice, the relationship between freedom of expression and the principle of legality should be taken into account, particularly the requirement of legal foreseeability, which has been enshrined into the non-derogable norm of Article 7 of the Convention as a safeguard against arbitrariness.

Participants pointed to the rich case law of the European Court of Human Rights in the context of the relationship between freedom of expression and the protection of private and family life when it comes to the internet and social networks. The discussion also touched upon the justification of the introduction of criminal /misdemeanor liability of social networks and the appropriateness of the application of regulations governing the liability of legal entities for criminal offenses/misdemeanors on social networks. Furthermore, following the recent ruling of the European Court of Human Rights in the case of Melike v. Turkey, which found a violation of Article 10 for dismissal of an employee who used the “Like” function on Facebook during working hours in response to posts on topics of public interest, some judgments of domestic courts regarding labor disputes due to the use of the internet by employees and posting comments on social networks were also mentioned (e.g., the decision of the Constitutional Court of the Republic of Croatia from 2020).

Right to be forgotten was put in the context of freedom of expression and its restrictions as well. Namely, participant pointed out that right to be forgotten as needed right in internet environment could be of use in the protection of individuals, since it is not rare the case that content available on the social media could initiate discriminatory speech even when that content is supposed to be removed in accordance to right to be forgotten. This is of the importance if we have in mind the disputable questions on the liability of the entities which are providers of the content. In the similar context, participants discussed whether rule “notice and take down” could be of help or helpless when entity has to take action due to injury of human rights.

Participants invoked similar discussion that has been already held among the lawyers, but regarding the protection of intellectual property in digital world and internet in particular. Major argument contra the opinion that providers of content should be at the first line of combat is the nature of the entity which are private companies, not provided to decide on legal questions, such is human rights. On the other side, argument pro could be found in the fact that providers dispose with effective measures (such removal of content is) which could satisfy the aim of prevention of spreading jeopardizing content. The latest is especially interesting approach if we are bearing in mind that judicial procedure could not be excluded. Even it is legally unacceptable to allow private companies to care on these important issues, it is obvious that their rule in internet communication as well as in shaping legal system in internet, should not be underestimated.     

Finally, whether incitement to hatred and violence can be committed through private groups in platforms such as WhatsApp was also addressed by the participants. It was concluded that in such cases, the element of “publicity” is missing, which is a constitutive feature of this criminal offense. Nevertheless, the speech that does not enjoy protection under article 10 of the European Convention on Human Rights that takes place through such platforms could be, under certain conditions, considered as a violation in terms of other provisions of the Criminal Code. In such cases, there is also a possibility to claim redress or compensation in civil proceedings.

The discussion was very constructive and inspirative. Participants agreed that the topic of the webinar was attractive, with a lot of open questions in all areas of law. Moreover, the question of the impact of social media and social networks on the freedom of expression and pluralism nowadays is in the center of legal thoughts.

Note: The webinar was planned and organized as a dissemination event of the research carried out within the framework of the Central European Professors’ Network coordinated by the Ferenc Mádl Institute of Comparative Law.

Details

Date:
2021.06.17.
Time:
16:00 - 18:00

Venue

Novi Sad & Zagreb