My paper: The Policy Challenge Of Content Restrictions: How Private Actors Engage The Duties Of States has been published on MEDIA@LSE Working Paper Series

Abstract:

The development of online technologies, services and applications presents challenges for policy-making with regard to the protection of free speech rights. Those technologies, services and applications are enablers of free speech, but conversely they also contain powerful functionality to restrict it. It is this restrictive functionality that is the subject of this paper. The issue considered by this paper is how to interpret the duty of States with regard to private actors, acting on behalf of States, in the context of Internet restrictions (network-level blocking and filtering) and the right to freedom of expression. In a human rights context, does it matter whether the private actor is applying content restrictions in response to a government request or doing so of its own accord ?

To answer the question, the paper will consider how restrictions placed on the Internet could engage free speech rights from a legal and policy perspective. In particular, the paper will address the ways in which the underlying network technology may restrict access to content and interfere with free speech rights, and it will consider the duties of States in this context.

The paper will develop its answer in the context of liberal democracies such as the Member States of the European Union, where demands for such restrictions on access to content are creating challenges for policy-makers. It will use copyright enforcement as an example of a policy perspective where industry stakeholder demands for restrictions, to be imposed by network providers as third party private actors, have created a particular challenge for human rights compliance.

The paper uses inductive analysis of case law, regulatory and technical studies to make the connections between the underlying network technology and interference with free speech rights. Drawing on expert legal opinion, including United Nations guidelines for business and human rights, it considers how the duties of States duties might be interpreted in the Internet context. The findings indicate that States do have special to address private actors in this context and will add to the body of knowledge regarding Internet policy and content online.

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