Ideal and Normative Dimensions
Edited by Massimo La Torre, Leone Niglia and Mart Susi
Chapter 11: Balancing fundamental rights on the internet - the proportionality paradigm and private online capabilities
This chapter explores whether fundamental rights are the same online and offline, and whether private online portals have the capability to balance conflicting rights in their portals. The argument originating from the universalist or practice-independent perspective and claiming that human rights online and offline are the same cannot be justified. This is because the doctrine of sameness, leading to the understanding that freedom of expression and the right to privacy online are of equal importance or deserve equal protection, remains in the stage of contestation. It is not clear whether the epistemic inability of online portals to articulate reasons for their decisions regarding conflicting rights means that these portals are not capable of balancing. There is no quantitative evidence to suggest that the online balancing of conflicting rights produces results which are significantly different from what the courts would produce via judicial balancing of similar conflicts.
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