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Free Speech > Free Speech 7 - Different Types of Speech 2 > Flashcards

Free Speech 7 - Different Types of Speech 2 Flashcards

1
Q

Introduction

A

LAST WEEK looked at how 2 diff types of sppech, commercial and political treated in diff jusris
This week going to consider anonymous and pseduoymous speech, which of course is WAY OF COMM not type, that can be applied tp all types of speech.

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2
Q

Introduction

A

Now in paritc gonna look at it in this context of online expre, nto exlcusiely but will focus on annyomous pseu speech online

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3
Q

Introduction

A

These all famous annoyomous psydoymous speakers
j./k rowling-p
The economist publishes al stories anonymously
Gysi fwiles- one of most well known political blogs on the int and guy fawks actually chap pauls takes or writes blog- psyedonm
Online acitives well known guys- anonymous
e.g.s of ann and p

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4
Q

Introducing speaker and audience interests

A

So in this lec, we are going to consider the contrasting pos of English eu and us juris in respect of reliance on speaker and audience interst/ so gonna look at speaker and audience int and ho diff jurisdic rely on are u of those itn in order to formulate its juris.

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5
Q

Introducing speaker and audience interests

A

Anon/pseudon of the speaker can benefit the audience by promoting free speech. However…
Audience interest favours transparency

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6
Q

Introducing speaker and audience interests

A

Speaker interests:
Privacy rationale – keeping certain information secret

So what these concepts, what speaker audience interest meani in practice will depend on whether they are in any given context underpinned either by free speech or privacy rationales.

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7
Q

Introducing speaker and audience interests

A

What gonna do this sldie briefly introud, cocnepts of psyed and audience interests. Then gonna be applied
Soeaker and audiencde inter mean in context of privacy and free speech provisions.

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8
Q

Introducing speaker and audience interests

A

So privacy rationale for ann and for pseudo underpins thr ight to keep info a secret. Including the speakers identiy. So privacy rationale underpins the right to keep certain info secret, including the speakers identiy.

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9
Q

Introducing speaker and audience interests

A

Freedom of speech rationale – encouraging people to speak freely

So from freedo of exprsion perspec, protecting the speakers interest by preserving there anonymity, will encourage them and other people to speak more freely, and will in turn encourage the dissemination of more info.

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10
Q

Introducing speaker and audience interests

A

Bc if they are permitted to speak annoymouslt or under psuedion they don’t need to fear ahrrasment or prosecution of course no one knows who they are,
So that’s a privacy rationalie underpin free specch.

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11
Q

Introducing speaker and audience interests

A

Audience interests - subject to conflicting arguments:

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12
Q

Introducing speaker and audience interests

A

So far as audience interest are cocnnernined, there ar eocnflicting arg.

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13
Q

Introducing speaker and audience interests

A

Si on 1 hand it can be said that ann or psued of speaker can actually benefit the audience.

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14
Q

Introducing speaker and audience interests

A

Can benefit audience int, this sis because based on this arg it promotes free speech as an anno or psu speaker is more inclided to impart info or ideas to the audience for the reasons I previously discussed.

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15
Q

Introducing speaker and audience interests

A

Cus wotn fear [prosecution/harass o actual audience benefits from that cos speaker more likely to dissm info cos don’t fear prosecution or harr- but theres conflicting arg- in other hand audience interest were usually favour transparency for a number of reasons.

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16
Q

Introducing speaker and audience interests

A

1st knowing the identity of the speaker enables the audience to accurately assess the speakers varcity

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17
Q

Introducing speaker and audience interests

A
  1. If spakers dientiy is known, if comm in way not ann or under psy-speaker more likely to express themselves responsibly and less likely to engage in speech which maybe d harmful or damaging.
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18
Q

Introducing speaker and audience interests

A

And final reason why audience intersts faovur transperncy is bc in the evnt the speaker has said something damging or offence, knowing identily allows dor remdial action, easier remedial action, so wheht e be speaker sued or proescutured much easier if know dientiy of speaker. Its far harder to do this if speaker is annoy or psued-.

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19
Q

Introducing speaker and audience interests

A

Those conflicting arg apply to resr of lec.

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20
Q

Introducing speaker and audience interests

A

Next part of lec gona consider how case law and legislation ahs been aploied to anno and psued speech and in doing this gonna look at juris that have opposing views setxent to which ann and pseud speech is protected ‘

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21
Q

Introducing speaker and audience interests

A

So start off looking at bview fom uk.

er

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22
Q

The view from the UK

A

Eric barendt book on pseud speech in this book he provides very detailed history of a speech in eng in paritc.

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23
Q

The view from the UK

A

No absolute right to anonymity/pseudonymity recognised

-And what is clear is despite this established tradition of anno speech In uk and ulike the us where very strong const right to anno speech ahs emerged, in the uk there is no absolute right to speak /epxres sselves ann.

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24
Q

The view from the UK

A

There is a right under uk law but it’s a quite limited one not absolute 1 to comm ann and ps- so as well see its almost diomaentically opposed sit to what we have in us where theres an actual right to anonymous speech.

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25
Q

The view from the UK

A

UK =IS RIGHT LIMTIED AND NOT CONSITUTINAL RIGHT
US- ITS ENSHIRED WITHIN 1ST AMMEDIANT
Look at diff in a moment
Starting point

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26
Q

The view from the UK

A

Now online and social media anonymous comm is subject to sae legal rsttiction that can be applied ot the trasiotnal media, so way of e.g s.127 of comm act 2003 which makes offence to send messga evia electric comm which is grslly poffence or fo and indencent obcene or menacing chartc. That applies social media, txt messages, faxs emails . Weve also got

  • s127 Communications Act 2003
  • Online/SM speech subject to same restrictions as traditional media, for example:
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27
Q

The view from the UK

A

ss32 and 33 Criminal Justice and Courts Act 2015

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28
Q

The view from the UK

A

s.33 Criminal Justice and Courts Act 2015

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29
Q

The view from the UK

A

s.33 interesting one cos that esstntially that’s where we have offence of rvenege porn. Its not called reveng porn that what media called it. More intenrtsing
What this offence is is disclosing private sexual phjotfrpahs films with intent tto course distress. That can be done normal phot or online via social media email etc.

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30
Q

The view from the UK

A

s5 Defamation Act 2013

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31
Q

The view from the UK

A

s.5 defa act which civl liability, this provides website operators with an offenceto defamation actions where an operator did not itself post the alledgy dxefamotry material of the partic website. And what these provisons do relates both criminal and civil liability is they appear to suggest that annoy and psued communication is to an extent atelast discouraged. And they cldearly have potential tp limit freedom of express in cetain circumstanxces.

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32
Q

The view from the UK

A

Discouragement of anonymous and pseudonymous communication?

Npw also been some int case law around annoy and psed speech within uk
Paritc well know case= case of

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33
Q

The view from the UK: Author of a Blog v The Times

A
  • So the existence or othersie riht oa nnoymity was considerd in this case but was considered as elemnt oiof pwrsonal privacy rather than aspect
  • Right to anonymity considered as an element of personal privacy, rather than as an aspect of the right to FoE (although see next slides)
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34
Q

The view from the UK: Author of a Blog v The Times

A

Although well come back that poiunt on enxt slide, cos as well see some of the arg actually relate to fos arg than privacy arg. Bear that in midn.

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35
Q

The view from the UK: Author of a Blog v The Times

A

Case concerned a blog which is known as night jack. The author of nigt jack used it as platform for discussing his work as a serving police officer. Now within some disc had in this blog, some blog posts he was extremely critical of gov minsiiters, and was also v critical of aprtic police operations, now itnerestingly in his judgment mr justice dd was of opinion that much if what autho ro fnightjack publishe could ifnatc be categorized as political speech.

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36
Q

The view from the UK: Author of a Blog v The Times

A

So in judgement auth rof knight jack could be catge as political speech. The times d in this apritc case, wanted to reveal the bloggers ident and as a result, the aurhor of night jack applied to court for an interim injunction. To restrain the times form publishing any info, that could lead to his dientification as th person who was behind th eblg.

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37
Q

The view from the UK: Author of a Blog v The Times

A

That what this partic case was about. Jdugemnt ac case itself v short, recommed u read it for urslef
So look a tnow is the argument sand the judgement itseld and what this means for a right to anno- context of the uk.

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38
Q

The view from the UK: Author of a Blog v The Times

A

Now barrister who was representing night jack hue Thomlinson, 1 leading media lawyer I world, very well respected media lawyer. So hue argued on behal of author of nightjack

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39
Q

Author of a Blog v The Times Newspapers Ltd [2009] EMLR 22

A

Hue thom arfgued in terms of c’s rights privacy.

-Claimant argued in terms of right to privacy

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40
Q

Author of a Blog v The Times Newspapers Ltd [2009] EMLR 22

A

Some arguments may be underpinned by FoE rationale.

Arguably if u read judgment some of his arguments were underpinned by the free speech ragtionale which we discussed start of lec but regarles of that botgh with privacy and free specch arg that were advanced, on behalf of the author of nightjack. Were predominately based on the intersts of the speech’

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41
Q

Author of a Blog v The Times Newspapers Ltd [2009] EMLR 22

A

Now hue Thomlinson advanced the arg that the auht of night jack and also other bloggers, would in his words be horrified if the annoymoity could not be protected. Now this is aporpsition which is clearlu based on rpviacy rationale that we looked at start of lec. That ann allows speakers ot keep certia info secre.t including their identity

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42
Q

Author of a Blog v The Times Newspapers Ltd [2009] EMLR 22

A

Now what hue thom submitted 1st was thata general proposition theres ia public inter- form jdygemnt- in rpesevring the annomity of blogggers.

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43
Q

Author of a Blog v The Times Newspapers Ltd [2009] EMLR 22

A

Based on the interests of the speaker

Got privacy arg there, also got free speech agr bc its based on speaker itnerst, as preserving the annoymirt of blogger enables them to exercise their right of info and ifeas as guaranteed under at 10 1 of eu conventon,and that cinversly revealing their identiy, or maing them reveal ident would restrict their ability to depeat info and ideas

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44
Q

Author of a Blog v The Times Newspapers Ltd [2009] EMLR 22

A

‘Public interest in preserving the anonymity of speakers’

But theres also secondary arg that preserving anonymity of bloggers protetcts uaidence interest I reciving infoa nd ideas of public interts. Bc if all bloggers made to reveal their identiy or if their ident was compromised they may be desuaded from blogging, impaetin info and ideas. That was 1st arg

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45
Q

Author of a Blog v The Times Newspapers Ltd [2009] EMLR 22

A

No public interest in the disclosure of the author’s identity

, the 2nd – no public interest in the disclosure of the auth or night jacks identity. As said the publication of authors ident would make no contirb at all to a debitive genral interst, so that was the second arg that hue thomlinso advanced.

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46
Q

Author of a Blog v The Times Newspapers Ltd [2009] EMLR 22

A

Eady J rejected application: judgment based on audience interests?

It then was m jsutic e t give his judgement- and he agve judgment bannered in favour of newpspaer, didn’t agree with Thomlison.

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47
Q

Author of a Blog v The Times Newspapers Ltd [2009] EMLR 22

A

Now interstingly mr justice eadly did not accep tor reject any arg based on free speech rationale. Hw he rejected c’s application and privacy arg on grounf that, blogginf is essentially public rather than provate activity. He said as result the auth of nght jack had no reasonable expectation of prviayc.

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48
Q

Author of a Blog v The Times Newspapers Ltd [2009] EMLR 22

A

But he said even if I found auth of night jac did have reaosnsble exp, this where balancing exce- the public itnerets inrevalign thata police officer was expressing strong cristism of the police an dpoltical figures. Out weiged his right to privacy and that revealing identiy enabled readers to acces shis veracity.

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49
Q

Author of a Blog v The Times Newspapers Ltd [2009] EMLR 22

A

So mr justice eady judgemnt seems largely atleats to ignore any speaker or I favourded arguments… based on the free speech rationale on lboog, rather based on audience itnersts in disagrees with hue thomlisons arguments.,

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50
Q

Author of a Blog v The Times Newspapers Ltd [2009] EMLR 22

A

so this judgment suggests thatfreedom of ann and pseudo speech enjoyed very limit protection under uk law. Now come back to this case, and animates porob associated with relying exlcusive annoy speaker or psued.

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51
Q

Author of a Blog v The Times Newspapers Ltd [2009] EMLR 22

A

Lookat view from echtr
What are u thoughts , personally think came to wrong dec – but what do u guys thing, I agree with hue thom
Read that case short judgement.
Look now at psosof eu cts

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52
Q

Online anonymous and pseudonymous speech: an equivocal view from Strasbourg-

A

Todau eu cht hr not reuqred to consider extent to which a limiting post on annoy speech would render any such limit as incapabtible art 10 eu convtion, hw unfortunatelt far form providing clarity on the exitsnece or otherwise, right to freedom of ann soeech. The jursi of the eu ct has been equivocal in ebts way looking at it on this partic matyer. Its been rather unclear. So couple cases want to talk about .

-Jurisprudence on online anon/pseudon speech = unclear

Council of Europe, Recommendation No R (99) 5 of the Committee of Ministers to Member States for the Protection of Privacy on the Internet, adopted by the Committee of Ministers on 23 February 1999, Guidelines 3 and 4.

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53
Q

Online anonymous and pseudonymous speech: an equivocal view from Strasbourg-

A

KU v Finland ECtHR, Fourth Section, Application No 2872/02, 2 December 2008.
Delfi AS v Estonia [2015] EMLR 26

1st is KU v finald 2nd r.a.w- both relat recent partic Delphia nd both relativel well know

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54
Q

Online anonymous and pseudonymous speech: an equivocal view from Strasbourg-

A

In ku v ifnald, eu ct held any gyarante of privacy and freedo of expression of rights for an idnivid placing an ann advertisement, is not absolute. An must accord precende to other rights and intersts such as prevention fo crime and proetcion of rights of tohers. Okay so quite clearly uk v final, saying that no cetain no absolute right to anno speech. It has to accord precendec to other countervieling rights.

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55
Q

Online anonymous and pseudonymous speech: an equivocal view from Strasbourg-

A

So then we had Delphi

Now althoguht the dec in delhpi seems to based explci on audience int in free speech.

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56
Q

Online anonymous and pseudonymous speech: an equivocal view from Strasbourg-

A

The cts actually afforded online ano commincatio a great level of important. So tell u little abot case.

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57
Q

Online anonymous and pseudonymous speech: an equivocal view from Strasbourg-

A

So Delphi was int news officer and delho had been required by Estonian cts to compensate victim in this case who ha dbeen v of threatening and defam comments which been posted on delphis serves even tho notice take down procedure, certaintime which take it down. So they operated that paritc service/rpcoeure as sokn as readers complained about these partic statemnts which v were complaining about.

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58
Q

Online anonymous and pseudonymous speech: an equivocal view from Strasbourg-

A

Now issue before the cts was wheter or not had been ifnrignement of freedom of expresio of the owner of dephi. Now ground chamber of eu ct hr held that the estonanin suprem ct , was compatible with eu convneiton and this eu cht hr said.

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59
Q

Online anonymous and pseudonymous speech: an equivocal view from Strasbourg-

A

Ct is mifdful of the itnerst of internet users, in no disclosing ther identiy

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60
Q

Online anonymous and pseudonymous speech: an equivocal view from Strasbourg-

A

Accoridngly ann is capable of promitign a fre eflow of ideas and info in an important manner. Including notability on the inteneet.

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61
Q

Online anonymous and pseudonymous speech: an equivocal view from Strasbourg-

A

As a result it rejected delphis argument that victims of defam statements must brign defamation prceedigns agaisn the authors comments after idneity ha dbeen established.

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62
Q

Online anonymous and pseudonymous speech: an equivocal view from Strasbourg-

A

Bc of the important that that anno plays in the free firs information ideas partic in context of int. now interstingly aswell that was very diff sttemnt to what we had in ku.b ut clealy in Delphi euc ht hr recognized ht eimproantce of no annoy sppech.

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63
Q

Online anonymous and pseudonymous speech: an equivocal view from Strasbourg-

A

Now other council of eu insitiitonas have also empahsied the importance of online anonymous communciao.

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64
Q

Online anonymous and pseudonymous speech: an equivocal view from Strasbourg-

A

Council of Europe, Declaration on Freedom of Communication on the Internet, adopted by the Committee of Ministers on 28 May 2003, Principle 7 (Anonymity).

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65
Q

Online anonymous and pseudonymous speech: an equivocal view from Strasbourg-

A

So in Delphi itself the u ct including decla of the council of minister on freedom of communication . So in deplhi they considered this, they looked a this decl and they applied it.

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66
Q

Online anonymous and pseudonymous speech: an equivocal view from Strasbourg-

A

Now principle 7 of this decl recognizes that 2 ensur eprotection against online surveeince and to enhance free expression of infoa nd ideas .Memebr states shoudlr espect will of users of int not to disclose their identiy.

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67
Q

Online anonymous and pseudonymous speech: an equivocal view from Strasbourg-

A

Council of Europe, Recommendation No R (99) 5 of the Committee of Ministers to Member States for the Protection of Privacy on the Internet, adopted by the Committee of Ministers on 23 February 1999, Guidelines 3 and 4.

Now additionaly got this earlier recommediatio of council of misntes.a nd ths suggest recognition of anonymity it context of int communticionn as aspect to personal privacy protection.

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68
Q

Online anonymous and pseudonymous speech: an equivocal view from Strasbourg-

A

So although these decl and also the eu ct dephit do not as yet atleast establish an absolute right o ann speech. Arguaby this epxlciit recognition of the improantce of ann and osued expression form both eua nd also council of eu . Suggest that in correct cirumstances atleats.

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69
Q

Online anonymous and pseudonymous speech: an equivocal view from Strasbourg-

A

Such a right could be brought into existence in future. Now as lookat itn next oart of elc. The us posotiona nd extent germnayis remabrkly diff.

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70
Q

Online anonymous and pseudonymous speech: an equivocal view from Strasbourg-

A

In us an consituonal right to ann speech both genrally an online has been held to exista nd has been cosnitly protected. Said before , that u think live in liberal free specch space within uk, it isvene more liberal in us. And I think ann and pseud expression illustrates that. How lib they are.

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71
Q

A view from Germany

A

Germany provides intersitng comparote whats going on eu ct hr. so unlike the stance of eu ct hr. which is said in rpev is rather equiv, unvlear how it r=teats ann and pseud xprssion.

Federal Supreme Court decision based on 3 points:

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72
Q

A view from Germany

A

German juris is actually much clear as to domestic cts adopted psotion on this partic way of comm. Illustrated very nicely by spcik mich case.

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73
Q

A view from Germany

A

Spickmich case Bundesgerichtshof [German Federal Court of Justice], VI ZR 196/08, 23 June 2009, Neue Juristische Wochenschrift 2009, 2888.

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74
Q

A view from Germany

A

Now this case concerned teacher- argue that her name details of her school and specifically annoy assements of her teaching by pupils which was accisble people to lok at via registration on spicmicks site. Should be removed. Npw issue before ht journaling courts concerned conflicting rights.

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75
Q

A view from Germany

A

On the 1 hand the teacher submitted that the storage and comuncation of info. Name details etc via pupils, contravened her right to informational self determination. Int hat she should be able to determine in any info should be made avail tp those who could access spinck mcih.

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76
Q

A view from Germany

A

Now this paritc privacy right. Right to individual self dissemiantion is protected robustly under german law.

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77
Q

A view from Germany

A

On the toher hand hw the argument was advanced that based on righ to freedo of expression, students and parent should be able toa sses teaching qual of thei teachers annoym, now germna fed supreme ct, uoheld the readings of lower ct and ismiessed the trachrs complaint. The cts decision wa sbased on these 3 point abovide

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78
Q

A view from Germany

A

Federal Supreme Court decision based on 3 points:

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79
Q

A view from Germany

A
  1. Anonymity is an inherent aspect of the use of the internet

1st- r.a.w – so v much mirroring euct hr – also saw council of min say inther eprevious slide.

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80
Q

A view from Germany

A
  1. Anonymity protected by statute
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81
Q

A view from Germany

A

Secondaly said in any event german staute protectecs anonymity and psued

82
Q

A view from Germany

A

And perusant to partic stat that protectsa ann speech service provided must as far as is techinaclaly possib le and reasonable allow the anonymous use of their services.

German and tel media act 2007 – s.13 sub sec 6.

83
Q

A view from Germany

A
  1. Obligation to identify could lead to censorship: incompatible with Art. 5.1 of German Basic Law.
84
Q

A view from Germany

A

finally they said as a matter of principle an obligation to inditify an invidi with expression fo a partic view. Would both generally and in the specifc ontetx of this case lead to self sensorship, fcrom fear of negative conseuqncs of identification. As a result it would be incompatibke with art 5 1 of german basic law.

85
Q

A view from Germany

A

So what this judg does is revelas strong attachment of german law, with freedom to use online communcations anonymously.

86
Q

A view from Germany

A

In that it demonstrates that fo a speech. Taskes precendce of important countevling right of informational self determination, element of ones personal preivacy.

87
Q

A view from Germany

A

As a result the reasoning of ct, cts judgment is clearly indictive of speaker interst approach. And is far less equivocal than jusr od euchthr and also demonstrates far stronger suppot for speaker interst than of course is precend saw start of elc in uk.

88
Q

A view from Germany

A

So although could actually argue although us positon. This is solely based on speech interest- predominatle based but not solely, arg could argue also exhibits elemtns of an audience interst apprahc on basis that free disimentio of info about teaher.

89
Q

A view from Germany

A

Enabled those with access to spickmich portal to maing full decision as to performance of teachr and school. So as prdom based speaker there are clearly some audience based interst.

-Predominantly but not solely based on speaker interests.

90
Q

A view from Germany

A

Now gonna look at pos in us then do short break.

91
Q

A (polar opposite) view from the US

A

Look at view from us-

US = strong jurisprudential support for anon/pseudon speech

so as already mentioned in us there has been strong juris support freedom of ann and spued expression,t hat is as result argue almost diametrically opposed to what we have in yk.

McIntyre v Ohio Elections Commission 514 US 334 (1995)

92
Q

A (polar opposite) view from the US

A

Ohio State Supreme Court = audience interests

US Supreme Court = speaker interests

93
Q

A (polar opposite) view from the US

A

Now supreme ct case od mc r.a.w –concerned lady called marget mc=-leading cae on anonymous speech in us. So it concerned now marget m had disturb leaflets at public meetings at an ohio school.

94
Q

A (polar opposite) view from the US

A

Due to public meeting an dhigher school leaflets expressed oppsotion to a propsed school tax lecel.

95
Q

A (polar opposite) view from the US

A

Now ms mc had produced leaflets at home on her own personal computer. In some of elaflets she distib she was identified as author so they went anonymous.

96
Q

A (polar opposite) view from the US

A

Hw other leaflets she had distrib she wa sidenited as author so tey weren’t annoyhw other leaflets were anonymous there were addressed from concerned parents and tax payers. All they said. Who from.

97
Q

A (polar opposite) view from the US

A

Now she continued to distrib these leaflets despite being warned by the authorties that they contravened a partic ohio rodience under ohio revised code. So in each sgate had own satte code and this contravened 1 partic audience under code.a nd under this code she alleged contravened, authors were not permitted to right print or dismmeinate campaigning lit without rpvisin their name and addrss.

98
Q

A (polar opposite) view from the US

A

She hadn’t done in those leaflets?/ as result ms m was fined, and she appeled dec and went to ohio state supreme ct, so up to ohio state supreme ct. now is in author of blog looked at earlier cae, the speech that mcintrye case was concerned iwht was poltiicla in nature as it engaed a state provision related specifically to campaign literature.

99
Q

A (polar opposite) view from the US

A

Now arguably, the basis of the state of ohio state suprme ejudgemtn, founde on audience interests in similar to mr justice eady reading in auth blg, in which held that bloggerds anonymity impeared operation public interest nd identiy was requiredto better enable audience for his veracity = mr justice eady arg.

100
Q

A (polar opposite) view from the US

A

Now acoridng to ohio state supreme ct, the burdner palced on author fo campign lit to identify themselves so ct said is more thnan coutnerbalnced by public inters in prviing audience messages directed with mechanism by which they may better evaluate its validity. So used balancing exercise state supreme ct said, that burden palced on author to identify selves campaign is more than coutnerbalnced by public int in enabling audience to assess valid of sppech.

101
Q

A (polar opposite) view from the US

A

Eventuallt CASE WHENT up to us suprem ct. in that justice stevens gave judgment f ct an din judgment he stated that an auth decision should remain annoy- aspect of free dom of speech protected by the 1st ammed.

-‘an author’s decision to remain anonymous … is an aspect of the freedom of speech protected by the First Amendment’ per Stevens J.

102
Q

A (polar opposite) view from the US

A

Now as a result of this seminal ruling which has been followed number of supreme ct cass. Enshrined within 1st ammed Is an absolute riht to communicate anjpymsuly an dpsued. Now gonna sta with mc for moment.

103
Q

A (polar opposite) view from the US

A

Hurley v Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 US 557 (1995); Buckley v American Constitutional Law Foundation, 525 US 182 (1999); Watchtower Bible and Tract Society of New York v Stratton, 536 US 150 (2002); ACLU of Nevada v Heller, 378 F 3d 979 (9th Cir, 2004).

104
Q

A (polar opposite) view from the US: McIntyre v Ohio Elections Commission

A

So 2 strands emerge form justice stevens judgment to justify this right o annoyt

Two strands to the judgment:

105
Q

A (polar opposite) view from the US: McIntyre v Ohio Elections Commission

A

So the 1st starnd advances arg that anonymity is shield from tyranny of the maj.

1.‘[a]nonymity is a shield from the tyranny of the majority’ 514 US 334, 357 (1995)

106
Q

A (polar opposite) view from the US: McIntyre v Ohio Elections Commission

A

Now according to eric barend t. this enables radicals and dissenters to expres unpopular views, free form fear of retalitation or prosecution

Barendt: enables ‘radicals and dissenters to express unpopular views free from the fear of retaliation or prosecution’

See also Talley v California 362 US 60 (1960)

107
Q

A (polar opposite) view from the US: McIntyre v Ohio Elections Commission

A

the 2nd strand is right s based. Accoridng to justice stevns the identity of the speaker is no diff fromother components of the documents content that the author is free to include or exclude.

108
Q

A (polar opposite) view from the US: McIntyre v Ohio Elections Commission

A
  1. Rights-based
109
Q

A (polar opposite) view from the US: McIntyre v Ohio Elections Commission

A

An author is free to determine the contents of their publication, and they are entitled to write anon/ pseudon.

110
Q

A (polar opposite) view from the US: McIntyre v Ohio Elections Commission

A

As a result an author ios free to determine contents of thei rpublication and they are entiled to right anonymously or under pseud and in respoinse .

111
Q

A (polar opposite) view from the US: McIntyre v Ohio Elections Commission

A

To contention that an audience may hav real interst in knowing identiy of auth to assess their credibility and strength of the authors vuews.

112
Q

A (polar opposite) view from the US: McIntyre v Ohio Elections Commission

A

Jsutice stevons mployed arg to compe;l an individ to disclose their name. or any identifyin gdetails is equiv to requiring them to express a paritc opinion

113
Q

A (polar opposite) view from the US: McIntyre v Ohio Elections Commission

A

. So other words they have right to include or exclude name same as right to include or exclude partc info or partic opinon. In justice stevson view they are 1 in the same.

114
Q

A (polar opposite) view from the US: online speech

A

McIntyre followed in context of online speech

-So the mc dec has been followed in context onkine communciations.

115
Q

A (polar opposite) view from the US: online speech

A

What I should at this point note is that the right to comm anonymously on int is nto absolute.

-Although the right to communicate anon. online = not absolute:

116
Q

A (polar opposite) view from the US: online speech

A

For e.g under federal statute its an offence to use a telel communication device without views disclosing thei identiy with intent to abuse threaten or ajrras any parti cindivid.

117
Q

A (polar opposite) view from the US: online speech

A

But there quite specifc sit where thr giht to comm annoymsult isnt absolute

118
Q

A (polar opposite) view from the US: online speech

A

ACLU v Zell Miller 977 F Supp 1228 (ND Ga, 1997)

119
Q

A (polar opposite) view from the US: online speech

A

Now in case of aclu v sell miller a fed district court held that a georiga stat, making it an offence to transmit messges over int ernet using false name was invalid. And contravened the 1st ammed.

120
Q

A (polar opposite) view from the US: online speech

A

Reno v American Civil Liberties Union 521 US 844 (1997)

In same yr in this case , reone-the us supreme ct kin dtemring that there was no basis for qualifying detection afforded by 1st ammed- 1st guarntte freedom of psech in context of internet.

121
Q

A (polar opposite) view from the US: online speech

A

Rejected arg internet could be subject to similar special content regulation tat ahd tradiotnally been applied to and had actually constrained the broadcast media.

122
Q

A (polar opposite) view from the US: online speech

A

Npw I apritcl what us suorem ct said although earlier cases had recognized special justifixtion for regualtions of braocast media.

123
Q

A (polar opposite) view from the US: online speech

A

These are npot necc applicable to other speakers. It was of the opinion thst the factors it had relied upon are not present in cyber space.

124
Q

A (polar opposite) view from the US: online speech

A

So as a arsult what we had from these cases and other. Is tht right to comm both annoymosuly both online and offline is now accepted as an integral part of 1st ammed- its enshrined within 1st ammed.

125
Q

A (polar opposite) view from the US: online speech

A

Decision was based entirely on the interests of the speaker

126
Q

A (polar opposite) view from the US: online speech

A

See very diff situation to what we have in uk. There is not this recognized consitional rih to anonymous speech.

127
Q

The problems associated with relying exclusively on either interest

A

Next look at problem associet

-Problems associated with the exclusive application of each interest as a basis for free speech: UK, Europe, US.

partic wirh context of anoy psed online expression, for follwoign reasons.

128
Q

The problems associated with relying exclusively on either interest

A

Partic say online expres. A us type right anonymous speech based on speake intersts goes to far. In that it does not adeuqalety protect toher coutnerveilign rights and inadvertly it protects speakers or dismmenat harmful and damaging speech, that’s why goes to far.

129
Q

The problems associated with relying exclusively on either interest

A

Hw. The position that we have for instance in uk which protects audience interest, predom audience int and best provides limited protection for anonymous speech.

130
Q

The problems associated with relying exclusively on either interest

A

Applying either interest exclusively to online and social media expression is problematic:

Speaker interest right: does not adequately protect other countervailing rights and, inadvertently, protects speakers who disseminate harmful and damaging speech
Audience interest right: does not go far enough in protecting certain groups.

131
Q

The problems associated with relying exclusively on either interest

A

As a result id oesnt go far enough r.r.aw last pojtn who for instance may use blogs or orther forms of social media as a method to dismmentate info of cosnituonal value e.g whistle vlowers like case of author of blog v times.

132
Q

The problems associated with relying exclusively on either interest

A

And cleaely audience inte approach doesn’t go far enough in protecting whistle blowrs using blogs to dismm info quite clearly of public inters tabout their … formal improa?? Sp that is siue. So there are probs with bith. Both have quite serious ptifalls.

133
Q

Reno v American Civil Liberties Union

A

Return to this case- touched on breifkly before break, now as disccues the supreme cots deci in mcintyre, is based on right of speaker to determine the contents of their speech, tjay justice stvenson in ma, according to ct in mcintrye, this speaker interest took precendce over audiences right to info regarding the speakers identiy, in order for reader to properly assess the credibility of the authors publication, now in context of online comm,

134
Q

Reno v American Civil Liberties Union

A

this case here reno v American civil liv union, was simialryl based on speaker interest to support annoy and psued expression.

135
Q

Reno v American Civil Liberties Union

A

Reno v American Civil Liberties Union (1997): highlights issues surrounding online speech and problems with applying one interest exclusively.

Hw the supreme ct dec in reno highlights some of the issues surrounding online speech generally and In aprtic anonymous communication transmitted by these partic medias

136
Q

Reno v American Civil Liberties Union

A

So the ethicacy of judgment in reno is based purely on speaker interests and if you apply this to a modern context. Modern context with online communicatio,n, its questionable. For reason gonna explain. So like auth of blog, it highlights problems systematic applying one interest exlcu.

137
Q

Reno v American Civil Liberties Union

A

-‘the Internet is not as invasive as radio or television’

The ct in reno was of the opinio21997 isn’t that far way- brit pop was in its prime – the ct in 1997 was of the opinion that the internt is not as invasive as radio and tv.

138
Q

Reno v American Civil Liberties Union

A

And in coming tot hat dec that int noy as invasive, it relied on the finding of the district ct= lower ct in this case, district ct said this = communciations over the int do not invade an individs home or repair on 1s computer screen unbidden , the users sell them in counter content by accident, almost all sexual explicit images are proceedd by warnings as to the content , odds are slim that a user would com across a sexually explicit site by acci- that’s what district ct said and that’s what dec of supreme ct in reno was absed upon

139
Q

Reno v American Civil Liberties Union

A

I think this dec an djudgement is indictive of paCE AT which online comm has developed over what is relatively hsort period of time. As findings upon which decision are based are arguably at odds with current onlin expressions. What do you think?

140
Q

Reno v American Civil Liberties Union

A

Accurate reflec of online comm of internet?- not really anymore. Internet comm in partic those that are transmitted by social media can be invasive and w eknow that. To extent this may be allowed, allowed by the user of a social media platform by virutr of registering of platform.. Howver users ae still subject to unbidden messages, regularly.

141
Q

Reno v American Civil Liberties Union

A

Appeainong mobile phones tablets, laptop screens, furthermote, the avialbilit of sexually explicit content, has without doubt been prolfiertated through social media n has been psenonous with platforms rather tlike whatsapp and snapchat also demostated by revenge porn fphneomen seen in recebt years.

142
Q

Reno v American Civil Liberties Union

A

These undbiiden messages /sexual explcit nature are very foten anonymous or psedu= exists lack of accountability whichc an seriously impact individ ability to see some sort of recourse.

143
Q

Reno v American Civil Liberties Union

A

For instance in relation to dmage which may be caused tp theirreprestation by virture of liable proceedings. So think unfortunately reno is still good judgement in terms of precendt, but its showing its age now even though only 1997.

144
Q

Free speech: predominantly concerned with audience interests?

A

Contrary to the judgements based purely on speaker int- kreimer he suggests that in many sit , anonymous and pseud expression isn’t apporpaite. Bc he said that v important for audience to be able to identify the speaker.

-Kreimer: anon/pseudon speech = inappropriate

145
Q

Free speech: predominantly concerned with audience interests?

A

Important for audience to be able to identify the speaker = attribute value and assess veracity (see Author of a Blog).

He said knowing the origin of the speech allows the audience to attribute a value to the speaker and to the info and also to assess the accuracy on the speaker/other previous communications, publicall accessible if know who they re. as result this enables audience toe val the auhtoirs prior experience who are thye? Are they soem1 wh has auth to talk on this partic subject for instance.

146
Q

Free speech: predominantly concerned with audience interests?

A

Now this view is animated quite nicely mr justice eady, he upheld the times argu the public was enitled to know identity of author of blog to assess the strengths of criti of police force in which he was serving.

147
Q

Free speech: predominantly concerned with audience interests?

A

In that respect makes perfect sense. At what level were u a police office, what was ur expience within the police force. At what level were u operating, what rank were u/what access partic info , all that help reader assess that partic individs auth and their ability to speak with auth on aprtic subject.

148
Q

Free speech: predominantly concerned with audience interests?

A

Schauer and Alexander: free speech is predominantly concerned with audience interests

Now accordingly , the likes of Fredrick shower and also alexander are of the opinion that free speech is predom concerned with audience inte. They believe they speakers enjoy only direvite rights which are subject to a protection only to ensure that the interests of the audience are safeguarded.

149
Q

Free speech: predominantly concerned with audience interests?

A

Now interstingly some social media paltforms, have now adopted this partic stnce, in respect of their anonymity and psued polciies .

150
Q

Free speech: predominantly concerned with audience interests?

A

So fb is a good e.g fb for e.g atleast ofiically, does not allow registration under a sudanim. Bc fb believes tha its users are more responsible in debate and social commentary when they use their real name. so the views of kreimer nd shower and alexander.

151
Q

Free speech: predominantly concerned with audience interests?

A

Mr justice eadys and fb policy all coreleate very nicely with eric barendts arg that the case for freedo of speech, dictates that when it comes to genral political economic discourse, the public should know something about the speaker themselves.

152
Q

Free speech: predominantly concerned with audience interests?

A

Equlally barendt sayd , audience wants to know toe value worth or value of partic publication.

153
Q

Free speech: predominantly concerned with audience interests?

A

Hw in my view- the argu advanced by scha alex,and barendt and also fb policy are probelamtic. Partic in context of online anno and psed speech.

154
Q

Free speech: predominantly concerned with audience interests?

A

Speakers only have derivative rights.

Correlates with some social media platforms (e.g. Facebook).

155
Q

Critiquing the audience interest approach

A

Problematic 5 reasons

156
Q

Critiquing the audience interest approach

A

1.They do not take into account the use of pseudonyms

The views of mr justice eady fb polc- r..aw- if the audience is unaware that speaker is commun under psued they may not adjust value their tribute tot hat respective comm-

157
Q

Critiquing the audience interest approach

A

The views of mr justice eady fb polc- r..aw- if the audience is unaware that speaker is commun under psued they may not adjust value their tribute tot hat respective comm-

158
Q

Critiquing the audience interest approach

A

2.Knowing the speaker’s true identity does not, necessarily, add any value.

159
Q

Critiquing the audience interest approach

A

Kwoing the speakers true ident- doesn’t necc add any value, just bc u can see name of speaker or author, doesn’t mean that u can assess their credibility now this observ partic pertinent in respect of citzin journalism- these journalist may well in certain circum be dissmenatin info of real public interest.

160
Q

Critiquing the audience interest approach

A

But they may not have any back ground to actual acces, regardless of whether their identiy is revealed or not. So in these cirum they may aswell be acting annoy or under psued- as their real identiy, does not provide any usable info for the audience t evaluate.

161
Q

Critiquing the audience interest approach

A

Equally as we know the traditional media increasingly rely on citzen journalist as source of news.

162
Q

Critiquing the audience interest approach

A

As a result speech is bvery often recycled through jduical forms of media that may come from speakers, that are identified but are unkown. Or from annoy sources or indeed form speakers acting from psued.

163
Q

Critiquing the audience interest approach

A

Soa ctually journalist on bbc saying even though unidefietd may cime from citizen journ who isn’t or no one knows who they are anyway

164
Q

Critiquing the audience interest approach

A

3.Social media platform’s anon/pseudon policies rely on fellow users reporting the use of pseudonyms…problem?

165
Q

Critiquing the audience interest approach

A

Fbs anonymity policy and psed policy relies on the platforms uses to report fellow users, using pseud. but inn many isntances. Its likely that these other uses will have ab no idea at all that psued has been used.

166
Q

Critiquing the audience interest approach

A

Also from pratic pesoecitve its almost imposs for platforms such as fb to monitor and bet the millions of messages that it carries each and very werk. /day.

167
Q

Critiquing the audience interest approach

A

Finally it also conflcits these polciaies also conflict with advise given to police officers for instance to use pseud social media to protect identity. – that’s what told to do. They use diff name. same with doctors-.nurses sames. Teachers – safety advise given so it conflicts with these polciies

168
Q

Critiquing the audience interest approach

A

4.Author of a Blog: decision may dissuade others to communicate in this way even when speech is in the public interest.

169
Q

Critiquing the audience interest approach

A

The probkems that could ptoentiall flow from dec in auth blog are like reno iresptc of speaker interests symptomatic of applying audience interests exclusively, there is currently an abudance of blogs,

170
Q

Critiquing the audience interest approach

A

similar to nightjack that dismmeate info of public int. bc the decision in auth of blog require the auth to identify himself.f it surely has the propetinity atleats to deusade other people an dalso whistle blowers from comm in similar way.

171
Q

Critiquing the audience interest approach

A

So switz argput arg on head rather than protectic audinec,e by ptoentiall desuading invidi from participating in citizen journalism. It actually dmages audience itn as less ppl are exposed to infot hat ahs real public int. that can limit there engament with democratic process and also hinder their self fulffillemnt.

172
Q

Critiquing the audience interest approach

A

5.Anonymous/pseudonymous citizen journalism’s transparency ‘issue’.

173
Q

Critiquing the audience interest approach

A

As well as bestowing certain prvi on media, as we know the right to media freedom carries with it duties a nd repsonibikiy- 1 of these duties nd repson is transparency. The journalist media is ubjetc ot right to reply.

174
Q

Critiquing the audience interest approach

A

So when media prints something about someone that individ had right to reply. Right to put forward their view their story, therefore atleats within eu context. Media has to make avail certain infoa bout publisher or editor, in order for the partic individ that is beign talked about in story to have that right of rpely.

175
Q

Critiquing the audience interest approach

A

Of course with ciit journalism that isn’t lawya sposs. Bc very often its 1 man band. Their isn’t that publisher or ediot that they can use a shsield. To shield themselves from thos partic issues. So again it may well prevent or atleast perused people from engaging inc itzen journalism.

176
Q

Critiquing the speaker interest approach

A

Now look at speaker int approach
Fact that info dissm social media can remain avial permamntley nad easily acces to anybody
Gives rise to 3 issues
And these ampliedfed by annoy and pseud expression

177
Q

Critiquing the speaker interest approach

A

(i) the absence of ‘responsible’ intermediaries, which is conducive to
- Absence of r.a.w – the profiltiation of fake news r.a.w and victims r.a.w – the eprsn that said it

178
Q

Critiquing the speaker interest approach

A

(ii) the proliferation of fake news and
- Consequnetly these 3 form foundation for as strong audience int based arg against the right to annoy and pseud speech. So these are th conclficting arg.

179
Q

Critiquing the speaker interest approach

A

(iii) the fact that victims of, for instance, cyber-bullying, hate crime and defamation are not able to identify the origin of the communication
- They prove support for the rrestrict on annoy and psued speech partic online or social media context

180
Q

The presence of a ‘responsible’ intermediary and fake news

A

Levmore: traditional media – danger posed by anonymity is mitigated by an intermediary. It is unusual for online intermediaries to assume this responsibility for two reasons:

181
Q

The presence of a ‘responsible’ intermediary and fake news

A

Really good book wrriteen by levmore- sull is an ameircan schlar who writ loads of free speech- offence of int- chance read it. – good book
So in this book th eoffence of int- levmore point to distinction btw tradiotnal media and social media.

182
Q

The presence of a ‘responsible’ intermediary and fake news

A

Says is that with traditonl media, the dnage ropposed by annoyminer is mitigated by the presence of an active intem e.g publisher or editor.

183
Q

The presence of a ‘responsible’ intermediary and fake news

A

Bc in those ocntexts the ediro or publisher can vouch for the itnegreity and realibiltiy of souce of info or author themselves. They can also check sotry prior to beign published. And also regfer to their legal tema. Make sure no legal risks

184
Q

The presence of a ‘responsible’ intermediary and fake news

A

To contray tho its very undua for online intemedies ot assume this responsibility for 2 primary reasons

185
Q

The presence of a ‘responsible’ intermediary and fake news

A
  1. Disinclination amongst SNS to play the role of arbiter.

1st – aprtic with social media compa- there been disicn to r..aw as this leaves thos eplatforms open to claims of sensorship

186
Q

The presence of a ‘responsible’ intermediary and fake news

A

2.Volume of online communications makes monitoring such speech extremely difficult/impossible.

187
Q

The presence of a ‘responsible’ intermediary and fake news

A
  1. Due to volume of online and oscila med r.raw monitoring content diff for social media platforms.
    as result these reasons pose sign challenge for these partic medias. That have tradtinally atleast supporte the intetrst of th speaker.
188
Q

The presence of a ‘responsible’ intermediary and fake news

A

They’ve ben put udne rincreasing pressure to be able to idenifty the authors of for e.g defam material revenge pron cyber bullying hate speech etc and also to enable successful civil actions and other cfriminal rposctuins.

189
Q

The presence of a ‘responsible’ intermediary and fake news

A

Pose significant challenge for these mediums: Fake news

Chilling effect of FoE?

Now this partic issue animated nicely by fake news phemonom, and social media paltforms are being akse dto deal with the prlifition fake new ont heir sites paritc- and fb in paritc subject ti strong criticism-

190
Q

The presence of a ‘responsible’ intermediary and fake news

A

led to fb introducing an ausidence intetrets based measure to deal with issue fake news, employed 3rd party facture in organistion, to limit amount fake news which been dismmesnated on its platform.

191
Q

Identifying the origin of the speech

A

So, in contrats to social media platofrms e.g fb that have adopted real name polcii intersitngly some sites have adopted, done the complete opposite. They’ve adopted or impleemtned polcies that enable their users to com under synom an or anoym
e.G social number r.a.w

-Some SNS have adopted anon/pseudon policies (e.g. Social Number, Gaia Online, Evsum and Anonyming).

192
Q

Identifying the origin of the speech

A

Partic notours site is forchang which ahs become psynon with trolling, pro r.r.aw

-4chan: trolling, pornographic material, Internet attacks, threats of violence

193
Q

Identifying the origin of the speech

A

Here lie porble with online expr4edsion ocmm ann or psued. It cn prevent or make it diff for vi of cybe rrevenge pron hate speech etc to identify orgin gof that speech. Fact that they unaware of their peropator and their peor p proximity to them can actially make ahrm suffer anyway even more acute
Demosrates many cases from diff juris

194
Q

Identifying the origin of the speech

A

Anon/pseudon speech can prevent a victim of crime/reputational damage identifying the origin of the speech.

So in 2007- several psued posts, sexual abusing anf thrwating named female law students at yale uni were dissmeint by us social media plat social admit- v were success in getting ct order requiring platform to identify peropatros – case where v were succ

195
Q

Identifying the origin of the speech

A

High profile examples of criminal anon/pseudon speech from around the world.

Ask fm- anonymous cyber bullyin in 2013 bullying on site led to suiced of girl hanner smith lecistershire , the candandian enwpaper global mail reported in 2016 that atleast 7 teen suicides ar reustl of anjoymous cyber bullying form that website.

196
Q

Identifying the origin of the speech

A

Also in 2013 res ellit used pesud to threaten to kill 200 students at school in tennesay , memorial fb for fellow student twho ahs been killed in car crahs. Now threats made caused 100,s stay away from school.

197
Q

Identifying the origin of the speech

A

Consequntly he was convicted for gossly s.127 commun act 2003. now in sma eyear again uk is about story sorley, and john nemo used twitter to annpoymusly tweet threats of violend inckudin rape to caronlien somthign who campaiugnig for woman to appear on bank of eng notes.

198
Q

Identifying the origin of the speech

A

. Now accoridn got judge conv of these 2 people said that anonymity higehtne the victims fear as had no way of nowing peroprt or how to recognsi and aovid them s.127 .

199
Q

Identifying the origin of the speech

A

So the avsnece of proactive eintermedia- the ambiguity of fake news and as illustrated by ex.. V of thos cyber bull cant indeitfy origins of speech reinfrc levmore contention that anonymous onlyine comm 3rd medium for juveline communicatiosn, also support arg that a consitiuonal protected us style speaker interest base absolute right to anonymous speech could be claimed by anyone

200
Q

Identifying the origin of the speech

A

. Including those who are dissmeianting fake news, misleading info or engaging in offence or harmful spepch.

201
Q

Identifying the origin of the speech

A

STRONG AGAINST SPEKAER INTERST RIGHT TO ANNOY AND PSEUD SPPECHA.

202
Q

Conclusion?

A

REALLY STRONG OCNLFIICTING ARG on either side, speaker or audienc eint
Ultiamtely there neds to be balance btw 2 but how to do is dif fespciallt when comparing diff jurisifcition that have very fiferent perspectives on free speech

Free Speech (9 decks)

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