Presentation for the BILETA 2012, Newcastle

2. The
Russians
used a pencil

3.  Law and context
(legal realism, sociological jurisprudence)
 Free Speech and context:
In absence of a common denominator , free speech
adjudication is dependent on its context
-ECHR (margin of appreciation) Handyside v United Kingdom
-First Amendment (community standards) Miller n California
 Determining trade-offs for free speech: Realizing
the context for performing a balancing act with
competing rights

4. Realization of rights in a “concrete” situation
– (Da Silva, 2011)
Frequently evoked parameters of
contextualization:
-Where?  Space
-Whose?  Property
-Who is to decide?  State Coercion
Monopoly

5. Q1: Has context changed in the digital era?
Traditional parameters contested online
Old parameters pointing to a distorted perception of the
context, away from what it really is
SPACE
PROPERTY
STATE COERCION MONOPOLY
Q2: Why would it be problematic to maintain our old
approach? Paradoxes- results of miscontextualization

6. 1. Space Contested as a Juridical Tool
Yahoo! Inc. v. La Ligue Contre Le Racisme et l'antisémitisme (LICRA)
“Everything you do on the Web “What makes this case uniquely challenging
may be subject to (just about) is that the Internet … allows one to speak in
everybody’s law” more than one place at the same time”
D. Post Justice Fogel
@WikiLeaks: Free speech has
a number: http://88.80.13.160
wikileaks.o
rg ch (Swiss address,
Swedish IP, French server
14 name servers pointing to 3 IP
blocks with diverse geo location
Over 1000 mirror sites worldwide

7. 1998:J Postel splits the Root
1996: “Governments of the 1999: “Code is Law” L Lessig
industrial world… you have no
moral right to rule us nor do you
possess any methods of Suggestions for the
enforcement…” US and its agency
John Perry Barlow, EFF ITU to control the
Internet
WSIS 2005: Agreement for
International Debate on Online September 2011:
Policy - IGF IGF multi stakeholder
debate on finding common
ground for private actors,
June 2011: ICANN and GAC governments and civil
agree on unwanted new society
domain names

9. Source: whaleoil.gotcha.co.nz

11. Paul Mutant, 2010. Acrylic on canvas 30 x 25 cm (12" x 10") <www.paulmutant.com>

12. “Dear XXXX My Site User,
Your website does not comply with XXXXX's My
Site Terms of Use.
For this reason we have temporarily suspended
your site which means it is no longer online.
You can find our Terms of Use by clicking
on this link : http://www.XXXXX.com/xxxx .
If you wish us to reinstate your site, please send an
email to support.mysite@XXXXX.com after you
have removed the offending material from it.
Regards
XXXX Community Services”
“How Liberty Disappeared from Cyberspace” –
Ahlert, Marsden & Yung, 2004

14. 'share an underlying approach … that pose(s) grave constitutional problems and that could have potentially
disastrous consequences for the stability and security of the Internet's addressing system, for the principle of
interconnectivity that has helped drive the Internet's extraordinary growth, and for free expression.'
(Lemley, Levine & Post, 64 Stan. L. Rev. Online 34, 2011)
Picture by Andrew Dalos, licensed under CC

15. Problematic Trade-off: Over-restriction of free
speech online AND AT THE SAME TIME under
protection of the competing right
What does this mean?
- IS Privacy online doomed?
FREE SPEECH - is Intellectual Property a
ŰBER ALLES? mere relic of the past having
no place in the digital era?

16.  Do we need new laws for this?
Keep it simple - THE RUSSIANS USED A PENCIL
 If the Internet is an artifact then do we need to “fix” it
so as to restore our traditional parameters online?
Keep it real - THE RUSSIANS USED A PENCIL
 Antidote to SOPA, PIPA, CCDP, ACTA etc? TRUAP
 TRUAP is not a new idea in law
 Selznick’s responsive law applied online 
Law is to embrace the net infrastructure as a way of
understanding the digital context for free speech:
Digitization of free speech jurisprudence

17. Trade Off: Realizing the right’s values in the digital context, of
which free speech is a structural element

18.  SOPA and PIPA Bills are now abandoned
-harmful to the net architecture(DNSSEC employment tools)
 ECJ in Scarlet v Sabam
HOWEVER
SOCA taking down a music blog with US domain name
for copyright infringement (February 2012)
Microsoft actively censoring Windows live Messenger
by blocking links to Pirate Bay and the Promo Bay

19. Argyro P . Karanasiou
Centre for International Governance
University of Leeds
[E] lwak@leeds.ac.uk
[W] http://www.karanasiou.co.nr
[T] http://twitter.com/ArKaranasiou