Law, tech, and fundamental rights

Singapore has implemented legal measures to combat online misinformation, enacting in quick succession the Protection from Online Falsehoods and Manipulation Act (“POFMA“) and the Foreign Interference (Countermeasures) Act (“FICA“). These statutes confer upon government authorities the power to compel the authors of certain material to display notices stating that the material contains falsehoods or originated from a hostile information campaign. Yet, should one accept that the constitutional right to freedom of speech extends to the freedom not to speak, the compulsion of such expressions may well be unconstitutional. This paper will study the theoretical justifications for a prohibition against compelled speech, propose a doctrinal framework to analyse compelled expressions by reference to US, UK, and Canadian jurisprudence, and critically assess how the POFMA and FICA would fare under such a doctrine.

In recent years, the distribution of intimate photos or videos without the consent of the person depicted has become a widespread phenomenon in many countries. Unfortunately this phenomenon expanded even more during the Coronavirus pandemic. The development of small and inexpensive cameras that can be concealed anywhere has increased the vulnerability of women. Due to the unique characteristics of the virtual domain, the phenomenon of “revenge porn“ has far-reaching implications for the victims. By 2022, almost all U.S. states had criminalized revenge porn. However the legislation is eclectic. One of the principal reasons for these differences, is the fact that revenge porn laws are perceived as violating the First Amendment. In this lecture I will criticize this position and will examine the main differences between the existing law in Israel regarding revenge porn (including the balance between the offense against revenge porn and freedom of speech) and the law in the U.S.

There are still constitutional states where the fundamental right to data protection is not recognized, at least as a right expressly affirmed in the Constitution. In Brazil, it was only recently that the discussion took shape, when it was recognized, by the STF, data protection as an autonomous fundamental right. The decision reignited the discussion on the approval and promulgation of Proposed Constitutional Amendment 17/19, which provided the incorporation of the protection of personal data into the catalog of fundamental rights of the Brazilian Constitution and was enacted through Constitutional Amendment 115/22, adding to article 5 that “the right to protection of personal data is ensured, under the terms of the law, including in digital media“. As recognized, data protection can no longer be understood as a simple negative exercise of the State in relation to individuals, but as a right of public and private social agents now enshrined in the Constitution.

The Covid pandemic served as a magnifying glass for copyright impediments in the field of science. This paper, focusing on scholarly publishing, and here on digital content, assesses the deficits of copyright law in the light of the right of everyone “to enjoy the benefits of scientific progress and its applications“ (REBSPA) in Art. 15(1)(b) of the International Covenant on Economic, Social and Cultural Rights. It considers current interpretations of the REBSPA to be flawed. The REBSPA is thus reinterpreted in accordance with what I term a “more“ human rights approach. Its two essential elements are the concepts of “adequacy for science“ and “global science inclusiveness.“ It is concluded that, while copyright needs certain reforms in the interim to accommodate science, in the longer term, entire institutionalised science will have to be reconceived. Genuinely open science requires far-reaching changes of copyright, potentially even its abolition in the field of science altogether.

It is a generally accepted belief, in many societies, that having rights is a good thing. It is one of the ways in which we organize the community we live in---it is a form of defining how we treat, what we owe, and what we can demand from each other. Winning rights---that is, obtaining the state's recognition of rights claimed by mobilized individuals---has historically been a source of social change. This historical fact has created political narratives of rights-expansion as an obviously good thing. Having rights is good, and having more rights is even better. This approach has extended into legal principles, such as the “non regression principle“ in international human rights law. I want to argue against this belief and some of its consequences. Under certain conditions, having rights might be detrimental to the well-being of society. I want to explore, theoretically and through some examples, what are precisely those conditions and what justifies loosing rights under them.