Abstract
The use of social networks may increase the potential for risks and violations of fundamental rights. Still, it can also be seen as a platform for exercising of these rights, thus contributing to their implementation and promotion by the Government. This is so because the executive power is still bound to protect and promote fundamental rights, even if these are exercised through cyberspace. Through two examples of different fundamental rights—the right to freedom of expression and the right to assemble and the right to protest and to participate in demonstrations—I will try to understand in this text some of the risks and challenges that the phenomenon of the digitalization of rights poses for the exercise of democracy, as well as for the Public Administration of a democratic rule of law State.
This text corresponds, with adaptations, to the intervention of the author in the panel “Regulation of information in cyberspace”, from the “Social networks, information and democracy” workshop of the VII Fórum Jurídico de Lisboa—Justiça e Segurança, organised by ICJP-CIDP/IDP and FGV, 24 April 2019.
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Notes
- 1.
See in this regard, Morozov (2012); Morais (2020), pp. 142–155, particularly p. 147, “As a matter of fact, the new communication technologies, as we will see, may be used both as a strengthening of democracy and of sophistication of the political and repressive action of authoritarian regimes. These technologies not only contribute to an elevated process of discussion and “deliberation” of informed and conscious citizenship on public relevant themes, but also become powerful vehicles of disinformation, fake news, defamation of political opponents and mass manipulation”.
- 2.
It should be noted that the problems arising from the use of social networks are huge, even if we consider the field of Public Law alone. See, in this regard Wurkert et al. (2017), pp. 1–28, e-book available at https://www.academia.edu/35059487/Digitalisierung_und_Recht.pdf?email_work_card=view-paper; see also Vesting (2019); Peuke (2020). On the new challenges launched to constitutionalism, namely regarding fundamental rights, see Canotilho (2019), pp. 5–7, available at http://www.tribunalconstitucional.pt/tc/content/files/conferencias/cquad/cquad_201910_marianacanotilho.pdf, highlighting that the relationship between Constitutional Law and the technical evolutions was already assessed by Soares (1969). See also, Teubner (2004), pp. 3–28, available at https://ssrn.com/abstract=876941.
- 3.
This protection includes not only the protection of rights, freedoms and personal guarantees but also other aspects, such as the protection of intellectual property or even the criminal oversight of certain acts performed through social networks.
- 4.
See the queries raised by Morais (2020), pp. 147–155, “although acknowledging positive impacts of digital communication in the access by citizens to information and the possibility to interact with the State, we should, nevertheless, highlight a set of queries as to whether the communicative phenomenon described enables to significantly increase democracy’s level of performance, generate a genuinely clarified public opinion, respect the legitimacy of leaders elected by the people and strengthen the quality of power deliberations”, which the Author summarises in five considerations: (i) accuracy and quality of the information circulating in the cyberspace; (ii) the debate of ideas and pure political action aimed for the moment and result; (iii) a source of clarification and citizen culture?; (iv) autocratic regimes, tensions between political-military blocs and digital universe and (v) the non-legitimacy of political leaders in the cyberspace.
- 5.
Accordingly, social networks may be a means for the State (and, namely, State-Administration) to promote, within its discretion and guided by the principle of public interest, its duty to inform the population, which corresponds to a positive task of the State. See, particularly, Silva (2015), pp. 655–668. In Germany, the Bundesverfassungsgericht, in its decision Osho, of 2002, clarified that the governmental information and warnings on potentially danger cults must be seen as an information activity, directly founded in the Constitution and without the need of an additional legal (legislative) authorisation, although bound by principles such as the neutrality of State, that is, the information should be maintained within the limits of the task of objective information, not being able to comprise defamatory, discriminatory or false information,—refer to 105 BVerfGE, 279, 294 onwards, reasoning that may fully be transposed to the use of social networks by the Administration to transmit information. The use of electronic channels by the Administration for compliance with its duties has been, progressively, also legally established, see, for instance, article 14. of the Administrative Procedure Code – DL no. 4/2015, of 07 of January—under the heading Principles applicable to the electronic administration, that establishes: “1 – Bodies and services of Public Administration shall use electronic means in the performance of their activity, in order to promote administrative efficiency and transparency and closeness with the interested parties. 2 – The electronic means used must guarantee the availability, the access, the integrity, the authenticity, the confidentiality, the preservation and the security of the information. 3 – The use of electronic means, within the limits established in the Constitution and in the law, is subject to the guarantees foreseen in this Code and to the general principles of the administrative activity. 4 – The administrative services should make available electronic means of interaction with the Public administration and disclose them, in an adequate manner, so that the interested parties may use them in the exercise of their legally protected rights and interests, namely, to assert their claims, obtain and provide information, make consultations, submit arguments, make payments and challenge administrative acts. 5 – Interested parties are entitled to equality in the access to the Administration services and the use of electronic means may not, under any circumstance, imply restrictions or discriminations not foreseen to those dealing with the Administration through non-electronic means. 6 – The contents of the previous number do not impair the adoption of measures of positive differentiation for the use, by the interested parties, of electronic means in the interaction with the Public Administration”, even if real acts (as opposed to true administrative acts) are at stake, even though they are naturally subject to the general principles applicable to Public Administration, as the article establishes. See also article 61 of the same Code, under the heading Use of electronic means “1 – Unless a legal provision stating otherwise, in the instruction of procedures, preference shall be given to electronic means, aiming to: (a) Render easier the exercise of rights and the compliance with duties through systems which, in a secure, easy, fast and understandable manner, are accessible to all interested parties; (b) Make simpler and faster the access of the interested parties to the procedure and information; (c) Simplify and reduce the length of procedures, promoting the quickness of decisions, with the due legal guarantees. 2 – Whenever electronic means are used to instruct a procedure, the electronic applications and systems used must indicate the person liable for the procedure and the competent body for the decision, as well as
,guarantee control of deadlines and running of the procedure. 3 – For the purposes of the previous number, interested parties are entitled to: (a) Know by electronic means the status of the running of the procedures directly concerning them; (b) To obtain the necessary instruments to communicate by electronic means with the Administration services, namely username, password to access simple electronic platforms and, when legally foreseen, electronic mail address and certified digital signature”. On this principle, see Otero (2016), pp. 102–104. - 6.
Regarding the relationships between the citizen and Public Administration within an “information society” (Informationsgesellschaft), see Holtwisch (2010). That is, pursuant to Otero in regard to an electronic administration, Otero (2013), p. 493 “electronic Administration is still Public Administration, being, therefore, bound by the Constitution” (focusing on the principle of subordination to constitutional rules regarding the organisation, activity of the Administration and administrative guarantees).
- 7.
Rheingold (1993), p. 13.
- 8.
One of the first appearances of the term was in the scientific fiction book Neuromancer of Gibson, in which the same is defined in the following way: “Cyberspace. A consensual hallucination experienced daily by billions of legitimate operators, in every nation, by children being taught mathematical concepts... A graphic representation of data abstracted from the banks of every computer in the human system. Unthinkable complexity. Lines of light ranged in the nonspace of the mind, clusters and constellations of data. Like city lights, receding”, see Gibson (1984), p. 69. We may also find this idea of a digital public sphere in Gruber (2014).
- 9.
As summarised by Morais (2020), p. 146, “blogosphere has, factually, been converted into an informal cosmos of valuation of the intervention in the public space, of citizenship use of the new technologies, of extension of the discussion of relevant themes for the collectivity and of the horizontalization of the communicative relationships between leaders and citizens (with the deletion of mediators)”. In a more sceptic sense, p. 152, “The deliberative democracy idealised by Habermas, linked to the confrontation of different opinions in the public space and seeking the best argument
,is barely related with the digital democracy of blogosphere, guided by the immediatism, mobilisation, dogma, the soundbite of the simple formulas but with images, the “ready to think” and the verbal humiliation of the opponent or the disagreement within the same current. The idea that the objective discussion of politics would have reached a higher stage through the blogger democracy, as a first step to a certain dissemination form of direct digital democracy, was reduced by several authors to a deceptive expression of “cyberutopia” or “internaut-centrism”. This being so, according to the same authors, the idea of freedom arising from the blogosphere has its exact opposite when the same is oversought and manipulated by relevant political and economic forces as well as by subversive groups and intelligence services of the States, vested with powerful technical and communication means that enable to distort the debate and feed through the outcome of the distortions created by itself before social networks, the media which are linked to them”. - 10.
See Morais (2020), pp. 124–125, “This “e-policy”, managed by a communicative mass network in the cyberspace, would create an informal deliberative democracy, which some refer to as “digital democracy” which would have a global and multicultural vocation and social and political awareness, discussion of causes and ferment of political mobilisations. Communication in the cyberspace would potentiate a type of non-representative democracy” and p. 145, “The said “digital democracy”, in its disseminator and libertarian component, would reflect according to its supporters an increasingly informed society, aware within the social-political plan, emancipated and active society that would promote collective actions, would confront the political power and would dispute the public space with the official opinion makers of the traditional media, through messages, videos and powerful images, as well as by means of disclosure of compromising information of political agents infringing ethic and legal criteria. And it is, indeed, a fact that the cross-border expansion of the blogosphere shakes governments and political hierarchies within the borders of each State: the dominium of the private sphere of leaders becomes highly scrutinised, barriers to the circulation of relevant information that flows with an unprecedented speed are eliminated and new transnational political actors arise which have an effective dominium on the contents, treatment and disclosure of such information. The most hidden dimension of power is sometimes opened, and the authority is desacralized, being obliged to appear and justify embarrassing or controversial conducts. If in the nineties the audio-visual power influenced the political decider, who no longer could disregard small or mid-size public protests which were highlighted by a persistent treatment in the media, in the new millennium, the impact of the blogosphere in the same deciders is also unavoidable. State and political actors do not hesitate in using the technologies themselves”.
- 11.
See, namely, the Instagram from the Prime-Minister António Costa, with 42,543 followers in January 2020 versus the one from Donald Trump, with 15,877,745, or the Twitter from António Costa with 101,556 followers versus the one from Donald Trump with 68,154,577 in the same period.
- 12.
As stated by Langer (2014), consulted on-line at https://www.academia.edu/8432430/Staatliche_Nutzung_von_Social_Media-Plattformen?email_work_card=view-paper “This State is not, however, a user as others, even when mixed with friends on Facebook and Twitter followers: its acts are vested with public authority and, thereby, must be subject to special rules. Which are the principles to be complied with by state actors in social networks and, to which extent these platforms are adequate to comply with the State’s mission of information?” and p. 949, “the State’s acts [contrarily to the acts from private individuals under the private autonomy on social networks] must always comply with the basic principles of Administrative Law, which means,
itthey must be in conformity with the law, pursue the public interest and be proportional”. It could be seen, as example, the possibility to hold the State liable for the non-removal of illegal contents or for the non-verification of discriminatory and offensive comments in its pages from social networks, see Leisterer (2018). See Morais (2020), pp. 123–125, p. 123 “The new public area of debate was extended to the blogosphere and to the cyberspace where, from the Pope to the political leaders, the tweet is used to transmit short messages that are answered by several citizens, which have the illusion of being directly communicating with the decision-maker, supporting it, advising it, criticising it and offending it. Facebook and similar tools became easy means for citizens’ petitions on certain political issues, marked by its volatile and immediate nature”. See also Mccullough (2003), p. 157, available at https://pdfs.semanticscholar.org/9138/59fb687aca92b83a9e9fe28f94b34f3f5be7.pdf, “Ministers could play an important role in stimulating and moulding political debates by engaging in online discussions. It is not intended that their representative role be superseded by the Internet, rather it is envisioned that they will play an important role is identifying threads in discussion groups and ensuring that important issues are brought to the attention of government. In this capacity, the Internet would serve as an adjunct to traditional, face-to-face constituency meetings. Consequently, it is arguable that one of the greatest problems faced by democracy is the rarity of ‘public space’ in which rational-critical, discursive political exchanges can occur. The Internet represents a new public sphere for public interaction where democracy could be revitalised”. - 13.
- 14.
See https://opp.gov.pt/, “The Portugal Participatory Budget (PPB) is a democratic, direct and universal deliberative process through which citizens submit investment proposals and choose, through voting, which projects are to be implemented in different governmental areas. Through the PPB, citizens may decide how to invest 5 million euros”. All national citizens with 18 years of age or more, as well as the foreign citizens residing legally in Portugal, may participate, submitting proposals in the PPB’s portal or in participative meets, with electronic vote (through the PPB portal or through free SMS).
- 15.
See https://www.simplex.gov.pt/. It concerns a set of “innovative measures that promote the “once only” principle in the relationship with the State, that chooses to encourage rather than oblige, fosters the digital and invites sharing and reuse of resources and resorts to new technologies, such as artificial intelligence”. One of the iSIMPLEX 2019 mandates is precisely “Digital by omission”, consisting in the “development of new solutions for Public Administration to privilege the digital format, as well as to seek to convert the on-going analogical models into this dimension. This principle does not mean, however, that services are only rendered on-line, ensuring multi-channel models, aiming the strengthening of proximity, diversification and a higher accessibility to public services”. As it can be read in the same site, “SIMPLEX was launched in 2006 as a strategy of administrative modernisation transversal to the Government and public administration services, either central or local. Between 2006 and 2011, several measures of simplification have been implemented with positive impacts in the life of the citizens and companies, such as the citizen card, “on-the spot firm”, the simplified corporate information or zero licensing. Complying with the Government’s programme, in 2016 SIMPLEX returned as an unique national programme with measures whose purpose is to render easier the life of citizens and companies in their interaction with public services, contributing to a more competitive economy and a more inclusive society”.
- 16.
- 17.
Pursuant to the translation suggested by Correia (2011), p. 596, “democratic responsibility, “However, the accountability, that the constitutionalists from Coimbra translate into public liability, is not only restricted to the constitutional level of the political liability stricto sensu (article 239., no. 1 of the Portuguese Constitution). As regards the administrative function, accountability means, more generally, the democratic liability. We prefer this qualification to highlight that we are before one of the several densifications of the principle of the democratic administration, where liability means the requirement for a double attitude by the Administration: submission, through transparency, to the citizens’ scrutiny and active cooperation with such scrutiny, endeavouring what is reasonably required to make it feasible”.
- 18.
See Morais (2020), pp. 147–155, pp. 146–147, “The scrutiny of undue conducts and politically incorrect statements, the disclosure and the open debate on critical information for the execution of the power and the relationship between the “output” of the “big data” and the activity of public instances of supervision of leaders, generated an extra-organic and disseminated means of control of political power which historically has never existed. It concerns a fact generated by the technological revolution of the digital age that came to stay and which surpasses in terms of impact all the most elaborated and utopian theoretical constructions around participative and deliberative democracy”.
- 19.
The post in question consisted in the promise of offences to physical integrity. If the same had occurred outside cyberspace, would it have had criminal consequences? See Morais (2020), p. 146, “Management of communication, dialogue and image, by politicians as users of new technologies become, on the other hand, not compatible with amateurisms, requiring assistance and professional advising. Actually, inappropriate, impulsive, emotional or thoughtless answers, badly received in the public opinion, require the decision-maker to retract, draw back, to provide more information and even to resign, exposing himself to an erosion of his image, to a wide open scrutiny and a multi-polar and unforeseeable debate, whose dynamics and conclusion he does not dominate. Finally, the denunciation of irregular or illicit behaviours from leaders in social networks, whenever disclosed or extended by the classic media, is a factor of feedback of potential enquiries or investigations in public structures of political or judiciary control over the same leaders”.
- 20.
This seems to be the understanding of the ECHR, see Mota (2018), available at https://www.mlgts.pt/xms/files/site_2018/guias/2018/IMGT_Conferencia_Liberdades_de_Imprensa_Francisco_Teixeira_da_Mota.pdf, pp. 3–11, p. 8 “Another principle that the European Court established in an unequivocal manner was the importance of the public scrutiny of those elected, of politicians, of public figures in any way, because power is not only the political power: it is the economic power, it is the power of showbusiness … There are plenty of powers. Such persons have the advantage of being in the spotlight, the advantages of having a particular light and disposal in the public scene, but must pay a price thereof, which consists in a higher scrutiny, as well as a higher resistance to disturbances, to be more rough that the rest of people. See also the decision from the Supreme Court of Justice of 30 June 2011, proceeding no. 1272/04.7TBBCL.G1.S1, rapporteur João Bernardo, “Politicians and other public figures, whether by their exposure or by the possibility of discussing the ideas supported by them, and also by the control they must be subject to, through media or ordinary citizen,—as to media, the Court has been repeating the expression “surveillance dog”—should be more tolerant to criticisms that private individuals, and must be, concurrently, more permissible to a higher degree of intensity of those (…).Purely exemplifying, we may consider some cases, whose contents may be seen in the site of the Court: Decision Oberschlick against Austria of 1.7.1997 regarding the expression, included in a press article, addressed to a prominent politician—who made a provocative speech—“imbecile rather than Nazi”, because this last name would favour him”; Decision Lopes da Silva against Portugal, of 28.9.2000, regarding the expressions addressed in a press article to a journalist that intended to be a candidate to municipal elections, as “grotesque”, “foolish” and infected of “boor reactionism”; Decision Almeida Azevedo against Portugal, of 23.1.2007, in which, in a press article, a member of the opposition called the President of the Municipality Council as a “complete liar and without complexes”, of having a “lack of unqualifiable shame” and being “intolerant and stoker”; Decision Mestre against Portugal, of 26.4.2007, as regards the expression “boss of arbitrators” said in a television interview, referring to the president of a big club and the Football League; Decision “Público” against Portugal, of 7.12.2010, regarding the case assessed in the Decision from the SCJ of 8.3.2007, proceeding no. 07B566, regarding a publication, in a headline and in two articles in that newspaper, covering tax debts of a Portuguese football club that would have not been paid, referring that the respective managers had committed a crime of tax embezzlement; Decision Otegi Mondragon against Spain, of 15.3.2011, where the plaintiff had been convicted by the Spanish Supreme Court (after being acquitted by the Basque Supreme Court), for having said, in a press conference, in respect of the visit of the king to Bilbau, the following: “How is it possible that they are photographed today in Bilbau with the king of Spain, when the king of Spain is the supreme chief of the Spanish army, that is, the head of the torturers, the protector of torture and who imposes its monarchic regime to our people through torture and violence?”
From this list, however, we may not withdraw that all cases of offences in the media are acceptable to that European Court. The decisions Barford against Denmark, of 22.2.1989, Prager and Oberschlick against Austria of 26.4.1995, Cumpana against Romania of 10.6.2003 and Pena against Italy, of 6.5.2003, constitute examples, among many, in which it was decided that the said article 10 had not been breached. Generally, because the individuals in question held positions without public exposure or because the offences were groundless, disproportionated or without correspondence with the general interest of information and control.”
- 21.
See Morais (2020), p. 153, “The universe of digital communication proved fundamental for social mobilisations in the defence of democracy or as a vehicle of democratic expression. However, it is also certain that autocratic regimes use new communication technologies for their benefit. Therefore, after the use of Twitter by Iranian youth in the 2009 demonstrations, the theocratic regime did not hesitate from identifying its users, anonymous or not, to radiograph and repress the dissidence. In all authoritarian regimes, political surveillance becomes simpler and more effective through the access as member or user of various social networks, including Facebook.”
- 22.
See Morais (2020), pp. 144–155, enabling to speak of a true digital citizenship, but critical of the concept of “digital democracy”, see page 155, “Therefore, we may conclude that “digital democracy” has little to do with deliberative democracy, even informal, if the assumptions and quality levels conceived by its theoretics are taken into account, rather functioning, in a liberal logic, as a space of communication that values individual self-determination of all citizens which are not info-excluded. It concerns, naturally, a space of inclusive communication, libertarian, graffitied and tribal, where information coexists with disinformation and debate with combat, and where simultaneously with political struggles between groups, parties and States with minor rules, some separate islands where a qualified debate is possible are able to subsist. Well, aren’t those islands, in the need of a defined political project, that enable granting consistence to a deliberative democracy in the digital universe? The attractivity of the formulas and clichés does not have, in the current time, correspondence with the political action of the Digital Age. Cyberspace may actually constitute a legal or illegal vehicle for all types of projects or combats.” See also Witt (2017), pp. 37–62.
- 23.
See Mccullough (2003). See also Prosser and Krimmer (eds), ebook available at https://www.academia.edu/23451331/E-Democracy_Technologie_Recht_und_Politik?email_work_card=view-paper, focusing on e-governance and electronic vote.
- 24.
Contrarily, Morozov (2012), with a sceptical posture regarding this democratising potential of Internet and centred in a “cybertopia” (the impossibility to see the “dark” side of Internet) and “internet-centrism”.
- 25.
Without considering, in that regard, the problem of news and content manipulation: we know what is going on, but we do not know if it corresponds to reality.
- 26.
It asserts itself as a “social-political movement intending to use the non-violent resistance to avoid the collapse of the climate, impair the loss of biodiversity and minimise the risk of human extinction and ecologic collapse”, “a globally active movement requesting civil disobedience in the climate crisis to end a mass extinction. The purpose of the Extinction Rebellion is the exercise of pressure over the leaders and the public to increase the awareness about climate crisis”. The movement was able to mobilise some supporters in Portugal, and, among other initiatives, was even able, in April 2019, to interrupt the speech of the Prime-Minister António Costa, when the same was speaking as General-Secretary of the Socialist Party, as a way of protest against the construction of the Montijo airport, thereby taking advantage of the media coverage to gain visibility and supporters, according to a trend felt in several other countries. See Morais (2020), pp. 150–151, “It also concerns a field, where illegal actions, of civil disobedience and of chirurgical violence of small extremist groups mobilize in a network and “deliberate” occupation of urban arteries linked to the capitalist universe, public or private properties (case of the “Occupy” movement), noisy classist provocations in certain social spaces (like the “rolezinhos” in Brazil’s luxury shopping centres), as well as violent acts of attack and counter-demonstration addressed to pacific meetings of parties with opposite ideologies (like the “black block” and the hooligans of the “Antifa” movement).” However, despite the potential that they have for the exercise of rights by minorities, the use of social networks to reinforce the exercise of the right to protest and participate in demonstrations is not, obviously, exclusive of minorities—let us be reminded of the aggregative potential of Facebook to convene student demonstrations.
- 27.
See Morais (2020), pp. 123–125, p. 123 “The political relevance of deliberative democracy, not as procedure, but mainly in its extra-institutional dimension, whether as a fact or as a cultural pretension, did not stop from having a relevant expression upon the increasing of technological advances in the communication hemisphere. The native discussions around its configuration and projection were catalysed during the “Arabic springs”, in the peak of the European social-political movements of protest against the austerity measures subsequent to the crisis of the sovereign debts, to the Wikileaks and to the political earthquakes that the same fed. However, the peak of the debate on its collateral effects surrounded the “Brexit” process and the 2016 American presidential election, with the use of Twitter and social networks by the candidates, particularly Donald Trump”. As regards some of the issues around the relationship between democracy and artificial intelligence, see, particularly Hoffmann-Riem (2019).
- 28.
See Egídio (2016), available at http://www.cijic.org/wp-content/uploads/2016/06/Cyberlaw-by-CIJIC_vf.pdf.
- 29.
Canotilho (2003), pp. 514–515.
- 30.
See Graber (2014). Even though, as highlighted by Castro (2016), p. 31, “it is certain that fundamental rights preserve the same dignity whether they are exercised digitally or analogically. But, with time, with the progressive massification of technological mechanisms, its execution tends to assume, much more, a digital format, and, therefore, the access to the network has a massive importance”.
- 31.
See Neto (2014), pp. 29–48, pp. 31–32, “Therefore, if the protection of a person’s individuality in a cybernetic context must be the continuity of the protection guaranteed by the State in the offline reality, the imateriality convenes, however, increased challenges. It concerns, indeed, the fact of knowing if it is still possible the use of “old wineskins” to contain and discipline “old wines” of the Internet, particularly as to the applicability of the common dogmatic of civil and criminal liability and of the protection of fundamental rights to the factual reality of the Internet. (…) Fundamentally, the discussion as to the acceptance of responsibility for online digital expression and information – rectius, to the respective potential illegal violation – finds obstacles in the immensity of available information, unfiltered, constantly updated and virtually impossible to erase”.
- 32.
See Ribeiro (2018), p. 5, available at https://www.mlgts.pt/xms/files/site_2018/guias/2018/IMGT_Conferencia_Liberdades_de_Imprensa_Goncalo_Almeida_Ribeiro.pdf, “Freedom of action is an asset, but it also constitutes a threat to third parties: its exercise may harm assets which are, abstractly, as fundamental or valuable as such freedom – assets such as life, physical integrity, property or social dignity of the persons in question”, although the author defends that “this conception pursuant to which it is always necessary to weight freedom with other values is a conception which does not - certainly, does not apply in these exact terms – to freedom of expression. And it is not applicable by virtue of three fundamental differences of freedom of expression towards what I have called “freedom of action””: (i) the first, of “ontological” nature, is based on the “uncompromising difference between action and idea”; (ii) because, based on Stuart Mill, for not being considered an asset for such person, like freedom of action, but rather an asset for the public, “because it will always enable that the most overwhelming majority has the possibility to proceed to the critical review of its convictions”, conceiving it as “a value for all: certainly for whoever exercises it, but mainly for those that are affected in their sphere by its exercise” and (iii) a difference of political nature, for not requiring an “authority that decrees which is the true opinion”, therefore, of political ordering, being such freedom intrinsically linked to the democratic principle. These points allow, pursuant to the author’s understanding, to consider freedom of expression as a “main freedom in the constitutional architecture of the democratic State of Law”. This perspective is, apparently, based on the assumptions that there are cases located outside the scope of protection of the freedom of expression, not being, therefore, admissible (for example the freedom to insult or a “perlocutionary use of language”, which may not be used to express an opinion (locutionary use), but to cause an action). This is not our starting point. In our understanding, fundamental rights must be understood as rights endowed with a wide scope, subject to weighting. Accordingly, Novais (2010), pp. 569–581. Regarding the problem of the limits to freedom of expression, Alexandrino (2014).
- 33.
With a huge interest, Vesting (2014). This is a discussion (limits of freedom of expression in the digital environment) which is, obviously, linked to the theme of hate speech and requiring a different reading about the limitation of rights when dealing with means of communication with a much higher potential of diffusion and memory. There are several on-going initiatives in this regard, such as the implementation by the European Commission of a Code of Conduct on countering illegal hate speech online, adopted on 31 May 2016, which, at the date of completion of this text (January 2020), is already in its 4th. assessment, see. https://ec.europa.eu/info/policies/justice-and-fundamental-rights/combatting-discrimination/racism-and-xenophobia/eu-code-conduct-countering-illegal-hate-speech-online_en.
- 34.
We reproduce in this regard our text, Egídio (2016), available at http://www.cijic.org/wp-content/uploads/2016/06/Cyberlaw-by-CIJIC_vf.pdf. See Canotilho and Moreira (2007), p. 556. See Canotilho and Moreira (2010), p. 572, “Besides content protection, the normative programme of the provision is extended to the protection of the means of expression (word, image or any other mean). The constitutional opening—“any other mean”—enables to easily include the new forms of expressions such as “blogs”, “chats”, “electronic protests” and various styles (satirical, ironic, aggressive, rhetoric, etc)”.
- 35.
See reference made in the previous footnote, as well as Alexandrino (2010) “media can be: (…) (ii) means of conditional access and of free use (such as radio and television by the internet, the Internet itself, the electronic mail, the chat, the mobile, fax, telephone, the telegraph and similar means of communication)”, also highlighting, as to the context in which they arise, the direct media, the mass media and those with support in the new information technologies.
- 36.
Tushnet (2015), http://scholarship.law.wm.edu/wmlr/vol56/iss4/15. See also Kraimer (2006); “the rise of the Internet has changed the First Amendment drama, for governments confront technical and political obstacles to sanctioning either speakers or listeners in cyberspace”.
- 37.
See Wachowicz (2015), p. 6, “the Brazilian Civil Rights Framework for the Internet (“Internet Civil Framework”) mainly aims to ensure freedom of expression and of information, with a view to ensure the construction of democratic spaces in the Informational Society. This way, the Internet Civil Framework, by foreseeing sanctions resulting from the undue use by a certain person, categorically highlights that the interruption of basic services of access is not admissible, being guaranteed the freedom of expression in the internet as an open and democratic space. The grounds for the use of the internet in Brazil foreseen in the Internet Civil Framework respect in an equal manner the right to information and to freedom of expression, perceiving them as fundamental rights established in the Federal Constitution, promote and guarantee the integration of the Brazilian citizen to this new technological reality of Informational Society”. The said law establishes in its article 2 that “The discipline for the use of internet in Brazil is based on the respect of freedom of expression”, listing, afterwards, other purposes, being this first purpose for the discipline of the use of internet in Brazil “I- the guarantee of freedom of expression, communication and expression of thought, according to the Federal Constitution”. It should also be highlighted article 19 according to which: “With the intent of ensuring freedom of expression and impairing censorship, the internet provider may only be civilly accountable for damages arising from content generated by third parties if, after a specific judicial order, does not take the measures to, within the scope and technical limits of its service and within the term given, disable the contents pointed out as infringer, safeguarded any legal provisions stating otherwise”.
- 38.
See Otero (2013), p. 496, as “freedom of expression via Internet”.
As highlighted by Neto (2014), pp. 31–32, “if the on-line means of communication are a vehicle of freedom of expression and of information, should the subjective scope of the media concept be modified, so that the same is extended to blogs’ contents? (…) in Portugal, an unprecedented deliberation of the Regulatory Authority for the Media (ERC) (1/DF-NET/2007) foresaw that, from that moment, all persons seeing their expression rights violated in Internet sites, which are vehicles of public communication, may have their complaints dealt with by the Regulatory Board.” To be also highlighted that pursuant to article 6., paragraph e), of the Articles of Association of ERC (approved as an attachment to Law no. 53/2005, of 8 November), “all entities that pursue mass media activities, within the jurisdiction of the Portuguese State, namely: 2 e) private individuals or collective persons who make publicly available an edited coherent framework of contents, on a regular basis, through electronic communications networks, are subject to the supervision and intervention of the Regulatory Board”. See on these themes Castro (2017).
- 39.
On the existence of limits when the right in question is exercised in the cyberspace, see the said deliberation from ERC 1/DF-NET/2007, available at http://www.erc.pt/download/YToyOntzOjg6ImZpY2hlaXJvIjtzOjM4OiJtZWRpYS9kZWNpc29lcy9vYmplY3RvX29mZmxpbmUvNzQ0LnBkZiI7czo2OiJ0aXR1bG8iO3M6MjM6ImRlbGliZXJhY2FvLTFkZi1uZXQyMDA3Ijt9/deliberacao-1df-net2007, p. 26, “This communication sphere, which has a deep impact within the scope of fundamental rights of communication and introduces amendments to concepts such as protection of rights of personality, access to information, prohibition of censorship, licensing and regulation, arises, however, without any state discipline, easily enabling to implement restrictions to freedom of expression. It should be, nevertheless, noted that even if the means of communication is the internet, freedom of expression and information is not absolute, having restrictions under article 18 of the Constitution of the Portuguese Republic and in the settlement that may be necessary to establish in case of conflict with other rights of equal constitutional dignity”.
- 40.
See Canotilho and Moreira (2010), p. 574.
- 41.
Dias (2001), pp. 615–653, namely, pp. 638–639.
- 42.
Our italics.
- 43.
See Castro (2016), pp. 31–32, “In any of the cases, such a fundamental right will oblige the State to guarantee the necessary conditions ensuring global access to the network, to promote the access and fruition of the right, that is, the right to a positive action from the State, whether the same is normative or factual. And, as a right of defence, it shall impair it from adopting measures that put in question the exercise of the Right to Internet, such as the creation of electronic barriers that avoid access to the network, or the access to information included therein (duty of abstention), also imposing to the State
,instrumental positive duties of protection of the Right to the Internet towards third parties”. - 44.
See Canotilho (2019), p. 3, “proposals for the reduction of the problems arising from digital exposure and its control shall be requested to constitutional jurisprudence and courts; of the different access to digital resources and the need to impose limits to its use; in the disparity of the acquisition of capacities and competences in the real world; of the difficulties of overcoming the insufficiencies and inadequacy of the educative system and the asymmetry in the acquisition of capacities of use of digital means. Such digital gap, which has territorial, generational and cultural elements, impairs the enjoyment, in equal terms, of the advantages arising from the digital revolution and generates a distressing dialectic between poverty and domain of information. These phenomena are also associated, as we have acknowledged, to the distortion of the information of the democratic debate, to the overvaluation of minority problems, fait-divers and fake news, in relation to the “real” problems of each society, particularly what concerns structural issues; to the difficulty of the discussion of complex problems of contemporary societies—without binary solutions and requiring data, weighting and reflection—within a framework of a communication system based on networks, in processing speeds and capacity of synthesis; and, also the impossibility to control the activity of old and new political agents: whether from parties or mainly from political groups beyond party-systems in what concerns the dissemination of certain messages and the raising of financing (subject-matter under the jurisdiction of the Portuguese constitutional court as court of appeal).
It is, therefore, within this context that the constitutional jurisprudence will, more and more, be convened to intervene, to solve new difficult cases of constitutional law”. Also see Otero (2013), pp. 493–495.
- 45.
Cfr. Mccullough (2003), p. 157, available at https://pdfs.semanticscholar.org/9138/59fb687aca92b83a9e9fe28f94b34f3f5be7.pdf, “It is suggested that the Government should be responsible for providing accurate information, or at least regulating information that may be referred to in the course of a debate concerning government policy” and also Leisterer (2018). See also Ostermann (2019).
- 46.
Another point of analysis, concerning the principle of competition, relates with the possibility of the State being present in a certain social network, but not in another. In this regard, see Langer (2014), hypothesis. 957. Obviously, the presence in the various networks is also subject to imperatives of economic rationality and, therefore, to a cost-benefit logic which may justify the option for certain networks in detriment to others.
- 47.
As to the importance of a right of access to the Internet, see Castro (2016), pp. 3–32, initially presenting the right to the Internet as “an instrumental fundamental right, corresponding to a right of access to the Internet, which strengthens and extends the exercise of other rights and freedoms, including fundamental rights constitutionally acknowledged, such as freedom of expression and communication, the right to administrative information or the right to democratic participation”; but theorising, afterwards, the right to the Internet, in itself, as “a fundamental right with its own contents, corresponding not only to the right of access to the technological infrastructure, but also of use of its communication virtues, of knowledge, of participation and of interaction, constituting a right to digital sharing and relation with other persons and institutions” and p. 10 “The digital world did not restrict from dematerialising the execution of some rights, which became exercised under new vests and in a digital environment, but also created relationships that the Law now governs. It is the case of the Right to Internet”, resulting from article 35., no. 6 of the Portuguese Constitution.
- 48.
For the most complete featuring among portuguese scholars, see Correia (2006). See also Batista (2006). None of the authors, obviously, assesses the exercise of the right from the perspective of the vehicle for its exercise being the recourse to social networks.
- 49.
See Morais (2020), pp. 123–125, p. 123, “The political activism became more informal through social networks, namely through Facebook, blogs and Twitter (and, inclusively, through the hidden tanks of confidential information, through darknet), surpassing the harshness of the classic social media, the national borders, the traditional hierarchies of public opinion making and the cultural and legal barriers between public and private”.
- 50.
Highlighting this point, Castro (2016), p. 16, “At the same time, the Right to Internet may be an instrument of materialisation of freedom of association and, particularly, of the right to assemble or to protest and to participate in demonstrations constitutionally established, namely due to the mobilisation effect without intermediation it may cause, associated to the easiness of communication and of transfer of information. There are plenty of diversified examples of spontaneous social movements initiated and/or fostered in the Internet, through social networks and blogs, which were extended to the public space, from the movement, amongst us, that led to the protest of 15 September 2014 under the lemma “Que se lixe a Troika”, or, in Spain the “Mareas Ciudadanas” or the “15M” movement to the “Arab Spring”, whose participants, resorting to the Internet, got around the news embargo on the events. Many of these movements, “networks of indignation and hope”, according to Castells, use the network as a “mass self-communication” mechanism, that “va de muchos a muchos com interactividad”, transforming the network in the source and extension of other networks. The access to the Internet and to the new technologies has a key role herein in the exercise of the right the citizen has to assemble and to protest and to participate in demonstrations”.
- 51.
See Vogelsang (2017) analysing flash mobs, smart mobs and Facebook-parties phenomena.
- 52.
See Vogelsang (2017) particularly pp. 43–173.
- 53.
On recent demonstrations, see Morais (2019), opinion paper published at https://www.publico.pt/2019/12/12/mundo/opiniao/nova-rebeliao-massas-1896654. See also Morais (2020), p. 124, “The same ciberactivism undertook an unavoidable impact within the political scope, whether in a democracy or autocratic regimes, as an information element and inorganic mobilisation. For example, through the informal electronic communication means: (i) sank political parties ahead in the polls (case of the Spanish PP in 2004 after the attempts in Madrid, confronted at the voting polls with demonstrations convened by sms alerting to the lies of the Government as to the origin of the same attacks; (ii) participants in the demonstrations of the Thair square were convened by twitter and sms, causing the fall of the Mubarak regime in Egypt;); (iii) Twitter was used to convene massive mobilisations of youth in Iran against the 2009 fraudulent elections; (iv) huge demonstrations were convened by angry young people hit by austerity, from which resulted the strengthening of radical left wing parties; (v) instigated and weekly demonstrations were mobilised against uncontrolled immigration by PEGIDA, in Dresden; (vi) strong messages were transmitted in the campaign for the exit of the United Kingdom from the European Union and apparently solid alliances were broken between allies for leadership of the conservative party; (vii) the republican candidate, Donald Trump, used cyberspace to defeat the candidate Clinton in the North American presidency, not only directly communicating with the voters through twitter and a parallel pool of informative networks chirurgical addressed to target voters in strategic states, but also benefited from the disclosure of problematic emails and messages disclosed by Wikileaks affecting the addressees and surpassing the media; (viii) an attempt of military coup in Turkey in July 2016 was defeated through Facetime, with intervention of the popular masses; (ix) and it was through social networks and TV channels through the internet that the Venezuelan parliament convened popular demonstrations against the State’s self-coup of the authority regime of Nicolas Maduro and enabled to transmit information and speeches blocked by the official media”.
- 54.
Which is different from being configured as “spontaneous demonstrations”, given that the same are organised in advance.
- 55.
Usually reinforced with the use of hashtags, enabling to aggregate the same initiatives and centralise information, such as the #VemPraRua in Brazil.
- 56.
Disinformation, in this type of actions, may represent a relevant problem of public security, see Dietrich (2019).
- 57.
This unforeseeability was clear in the yellow vests protest in December 2018 in Portugal, where the number of security agents was far higher than the number of protestors, see, for example https://visao.sapo.pt/atualidade/politica/2018-12-21-muita-policia-e-poucos-coletes-amarelos-retrato-de-um-protesto-fracassado. As to the task of prevention of dangers, see Silva (2015), p. 167 onwards, and specifically, on the duty of police protection, Sampaio (2012). See, in regard to the right to protest and to participate in demonstrations, Correia (2006), pp. 210–225.
- 58.
Formally, demonstrations follow the regime foreseen in Decree-Law no. 406/74, of 29 August, which foresees in its article 2, no. 1 a prior notice for the demonstration (persons or entities willing to make meetings, rallies, demonstrations or parades in public places or opened to the public shall make a written communication with, at least, two business days in advance to the civil governor of the district or the president of the municipality council, whether the place of the agglomeration is located in the capital of the district or not). The requirement for prior notice regarding demonstrations in open places to the public has been afterwards deemed as unconstitutional by scholars (to be noted that the diploma, being dated of 1974, is prior to the Constitution of the Portuguese Republic of 1976). However, some scholars support that the requirement of a prior notice regarding all demonstrations in public places is also unconstitutional itself, see Correia (2006). See also Baptista (2006), pp. 278–279, “Therefore, the prior notice is constitutionally admissible when the meeting may put in question any fundamental right or other collective asset constitutionally safeguarded. It is the case of meetings that the persons organising it need to occupy car highways or, due to the estimate number of participants, place and time, may create risks as to the maintenance of order, may use means that cause a significant noise or install temporary structures in the site”, which leads to the understanding that the lack of prior notice, as well as the breach of the term to deliver it, does not constitute a ground to interrupt a meeting or demonstration. None of the authors, naturally, given the date of publishing of the works (2006)—assesses the exercise of the right through social networks.
- 59.
Although not in regard to this reality but perfectly applicable, Correia (2006), pp. 202–203, “Before the promotion of demonstrations of opposite direction for the same day and time, the multipolar nature of the legal-administrative relationships in question and the need to act for the satisfaction of colliding fundamental rights (grundrechtlichen Gewährleistungen) demand for a balancing of procedures and measures that consolidates de administrative discretion rather than consume it”.
- 60.
However, the said weighting shall be processed within general principles of law—it will not be necessary to create a new theory. As we have mentioned above, the institutes and theories of Fundamental Rights and those of general Administrative Law shall also be applicable to the exercise of rights in the cyberspace, although with adaptations. It is the case of the multipolar legal relationship theory, of the effectiveness of fundamental rights between private individuals, of the restrictions to fundamental rights and of weighting as a form of resolution of conflicts of rights.
- 61.
Hoffmann et al. (2012).
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Melo Egídio, M. (2022). Social Networks and the Exercise of Fundamental Rights: Public Administration and the Digitalization of Fundamental Rights. In: Blanco de Morais, C., Ferreira Mendes, G., Vesting, T. (eds) The Rule of Law in Cyberspace. Law, Governance and Technology Series, vol 49. Springer, Cham. https://doi.org/10.1007/978-3-031-07377-9_12
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