The Quest for Rights
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The Quest for Rights

Ideal and Normative Dimensions

Edited by Massimo La Torre, Leone Niglia and Mart Susi

This discerning book explores the concept of human and fundamental rights, originating from the seminal work by the German legal scholar and constitutional lawyer Robert Alexy. Recognising the growing challenges to the idea of the universality of Human Rights, expert scholars consider time-independent conceptual questions which inevitably lie at the heart of any contemporary human rights discourse: What is the justification of balancing and/or trading off fundamental rights against other rights and collective goods? And are there utilitarian considerations that can limit the normative force of human rights?
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Chapter 11: Balancing fundamental rights on the internet - the proportionality paradigm and private online capabilities

Mart Susi

Abstract

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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