Judicial Protection of Fundamental Rights on the Internet

A Road Towards Digital Constitutionalism?

Oreste Pollicino

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509912704
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto in ambito scientifico e tecnologico

This book explores how the Internet impacts on the protection of fundamental rights, particularly with regard to freedom of speech and privacy. In doing so, it seeks to bridge the gap between Internet Law and European and Constitutional Law. The book aims to emancipate the debate on internet law and jurisprudence from the dominant position, with specific reference to European legal regimes. This approach aims to inject a European and constitutional "soul" into the topic. Moreover, the book addresses the relationship between new technologies and the protection of fundamental rights within the theoretical debate surrounding the process of European integration, with particular emphasis on judicial dialogue. This innovative book provides a thorough analysis of the forms, models and styles of judicial protection of fundamental rights in the digital era and compares the European vision to that of the United States. The book offers the first comparative analysis in which the notion of (judicial) frame, borrowed from linguistic and cognitive studies, is systematically applied to the theories of interpretation and argumentation. With a Foreword by Robert Spano, President of the European Court of Human Rights.

1

Technology and Judges Across the Atlantic

I.The Amplification of Judicial Momentum

Today more than ever, also against the backdrop of the uncertainty triggered by the COVID-19 pandemic, judicial globalisation has placed courts in a privileged position to identify risks of potential collision between interconnected legal regimes in terms of the protection of fundamental rights.¹ Cooperation between courts forges closer ties between different yet interacting orders,² while contributing to adapting legal systems to the new global challenges. The importance of this dynamic – and, more generally, the role and the impact of judicial activity – is even greater within the digital domain. This chapter analyses the reasons for and consequences of this ‘amplification’.

The increase of the role of judges in the information society can be explained in at least two ways.

The main (substantive) reason focuses on the traditional gap between law and technology, where law lags behind technological advances. The burden of making up for this inevitable legislative inertia – at national and supranational level – falls heavily on the shoulders of the courts. The new factual and legal context created by the Internet has further extended this gap, thus highlighting the lack of judicial expertise to deal with the scenarios thrown up by new technologies. In this context, political inertia (which is not always forced as sometimes power is delegated to courts with a view to avoiding difficult choices) has fostered judicial imagination within the digital era,³ along with the resulting use of metaphors and frames to adapt legal systems to the peculiarities of the digital realm.

This new amplification of a well-established process of judicial imagination is not the only reason for the increase in judicial power in the digital age. There is also another (procedural) reason, which is related to the inherently transnational nature of the digital environment. The advent of the World Wide Web has challenged traditional legal categories like sovereignty and territory, thus raising new questions concerning the boundaries of law and jurisdiction. The notion of territory or space has been called into question with respect to the online sphere, where the Internet provides a channel for sharing information, products and services across various jurisdictions. Within this context, courts have been called upon to enforce local law within a transnational environment such as the Internet.

It should indeed come as no surprise that the evolution of the digital environment has been one of the drivers behind this new wave of judicial activism. At the outset, scholars debated for a long time whether the Internet constituted a borderless and anarchic territory, a kind of ‘no man’s land’ immune to any attempts at regulation at national or indeed supranational or transnational level. Other scholars have pointed out that, while it is possible to regulate the Internet, the use of domestic law would be incompatible with the nature of the Internet. More specifically, some authors have described the Internet as a self-regulating platform that is capable of developing its own code;⁴ conversely, others have argued that regulation based on geographical boundaries is infeasible, and it is hence impossible to apply national laws to the Internet. Johnson and Post, two champions of this anarchic approach to the web, have stated that ‘events on the Net occur everywhere but nowhere in particular … no physical jurisdiction has a more compelling claim than any other to subject events exclusively to its laws’⁵ and thus ‘[e]fforts to determine where the events in question occur are decidedly misguided’.⁶ Nonetheless, it is well known that such a libertarian dream has faded away. The courts have played a crucial role in breaking down such utopian views. Both the enforcement of fundamental rights online through the use of new judicial narratives, along with the assertion of jurisdiction,⁷ apparently as a simply procedural tool, are two privileged standpoints for understanding the role of courts across the Atlantic in the information society.

This chapter introduces two conceptual pillars, which will be used in this book to reveal how the role of the courts in protecting fundamental rights in the digital age has been amplified. The following sections still stress how the rise of the Internet can be considered as one of the causes of this amplification of judicial momentum.

The first part of this chapter deals with the ability of courts to use the judicial frame as an instrument of interpretation in order to adapt constitutional and legislative rules to the new technological scenario, with specific reference to the shift from the ‘world of atoms’ to the ‘world of bits’. The second part will examine how the transnational nature of the digital environment has led the judiciary to play a critical role in defining the territorial boundaries to the application of rights and freedoms at local level. The third part will then introduce the issue of constitutional protection for these fundamental rights, showing how the (different ages) of codification of fundamental rights within charters and Bills (of rights) have not prevented courts from using new judicial frames and shaping their jurisdiction creatively. Indeed, paradoxically (although only apparently paradoxically), it would appear that the exact opposite has occurred, having resulted in a further amplification of judicial imagination.The fourth part will briefly disclose the constitutional basis of freedom of expression, privacy rights and data protection in the EU and the US, giving an overview of the analysis of the subsequent chapters.

II.Metaphors, Judicial Frames and Cyberspace

One of the principal consequences of the enhanced role of the judiciary in the digital age is the ability for the courts to enjoy broader room for manoeuvre when using metaphorical language and judicial frames in relation to the balancing of fundamental rights. In other words, as mentioned above, the not easy task of adapting ‘traditional’ legal rules to new technological paradigms implies greater judicial imagination. In some cases, as will be noted in Chapters 4 and 5, such as in relation to enforcement by the Court of Justice of the European Union (CJEU) of digital privacy, outright ‘judicial manipulation’ has occurred.

In order to fully understand the relevance of metaphors and frames in the new technological context, it is necessary to take a step back and to consider the theoretical backgrounds to the two concepts.

As far as metaphorical language is concerned,⁸ the shift from a conception of the metaphor as an exclusively linguistic fact to one that considers it as involving a cognitive process and a conceptual framework occurred with the publication in 1980 of the volume Metaphors We Live By, by Lakoff and Johnson.⁹ This is a study that marked a genuine, paradigmatic shift as well as a starting point for research into the role of metaphors within a wide variety of fields (from politics to religion, from economics to the law, etc). Two central theses of modern cognitive linguistics were endorsed: the idea that language is not independent from other human cognitive activities (such as perceiving, reasoning, etc) and the close link between meanings and concepts.

The fundamental theoretical assumption is therefore that a metaphor is more a fact of thinking than language.¹⁰ According to this view, every metaphor has a ‘source domain’, a ‘target domain’ and ‘source-to-target mapping’.¹¹ It is claimed that the metaphorical processes developed through the shift from one domain to another reflect the cognitive structures that condition human understanding.

Metaphorical language performs an irreplaceable role within the law. In fact, many legal categories and institutes have been constructed through metaphorical processes. Within that ambit, metaphors perform a constitutive function of legal reality itself: consider, for instance, the categories of ‘legal person’ or ‘sovereignty’ in all of its manifestations (state, national, popular, etc). As Blavin and Cohen write:

Within the law, metaphors mold the framework of discourse, determining the scope of appropriate questions about and answers to various social and legal problems. Courts and commentators employ metaphors as heuristics to generate hypotheses about the application of law to novel, unexplored domains. Metaphors structure the way lawyers conceptualize legal events, as they infiltrate, consciously and unconsciously, legal discourse.¹²

These scholars have analysed three different ways of describing the Internet in metaphorical terms: ‘the information superhighway’, ‘cyberspace’ and the Internet as a ‘real space’. They have shown how these conceptual metaphors influence the solution to legal problems involving the Internet.¹³ However, this aspect is not always fully appreciated and metaphorical language has not always been viewed favourably within arguments deployed by legal practitioners (above all in those used by courts). Thus, for example, within the US debate, Posner has asserted that

[a]nalogies can be suggestive, like metaphors, similes and parallel plots in literature – devices that analogies resemble … But analogies cannot resolve legal disputes intelligently. To say that something is in some respects like something else is to pose questions rather than answer them.¹⁴

And before him, Cardozo argued – wearing his judge’s hat – that ‘metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it’.¹⁵ It is of singular significance that, in condemning metaphors in this manner, Cardozo did so by recourse to a dual metaphor, namely the liberation of thought and its reduction to slavery. More generally, the creation of new fictions by the courts has been viewed with suspicion by various US scholars as such activity is claimed to jeopardise the ‘judicial candor’ that should – so the argument goes – characterise the decision-making processes of both judges and courts.¹⁶

Based on the conceptual and cognitive paradigm of the metaphor, it is also possible to infer a paradigm that is useful for studying some interesting issues arising in relation to judicial protection for fundamental rights in the digital environment: the frame. More specifically, particular attention must be dedicated to the interactive conception and the theory of conceptual metaphors. The interactive conception, which was developed from the 1950s onwards above all by Black,¹⁷ considers a metaphor to be the result of a process of semantic interaction, or more specifically as the product of the combination of an expression used metaphorically (the ‘focus’) and the enunciative structure within which the expression is framed (the ‘frame’). The conceptual and cognitive paradigm of the metaphor presupposes the fundamental concept of ‘frame’. Within the specific context of legal argumentation, a ‘judicial frame’ is the expressive structure and, more broadly, the reference context for the reasoning set out in the judgment.

As Chapter 2 (on judicial protection for freedom of expression from a comparative perspective) will clarify, different balances are struck and diverging solutions are found even in cases that are essentially similar or identical, depending upon the particular judicial frame chosen by a court. In other words, the notion of frame must be shifted from cognitive studies to the theory of interpretation and argumentation. As Sajó and Ryan point out, ‘translation of a technology and its consequences into the legal frame is not automatic’.¹⁸ This is where courts play an important role through the judicial process of translating something new into the la...