Freedom of expression and internet: should judges apply a preferred position doctrine to cases involving the internet? Libertad de expresión e internet: ¿deberían los jueces aplicar una doctrina de posición preferida a los casos que involucran internet?

Abstract

This paper aims to contribute to obtain an answer to the following question: should the Judiciary apply a preferred position doctrine to free speech cases involving the internet? The fast growth that the internet has experienced on the last decade converted it into an essential a plural medium of expression. This rapid progress has allowed people to access the internet from nearly everywhere, making it into a quasi-Omni-present network of people. Naturally, the insertion of the internet on people’s everyday routine brought along many legal issues, one of them being the definition regarding the eventual limitations that are considered to be valid when it comes to the exercise of the freedom of expression, a fundamental human right on-line.

It is a personal opinion that this definition should be established with two standards in mind: a) freedom of expression has an intrinsic value as a human right, according to article 19 of the United Nations 1948 Declaration of Human Rights and b) every expression manifested on-line depends directly on the code that is designed by companies such as internet service providers. Therefore, the paper aims to analyze how these two standards could interact in a way of obtaining an answer as to how the free speech cases should be interpreted on the context of the Internet.