Chapter 5 Answer guidance to end of chapter questions

1. Critically analyse the complete Licra et UEJF v. Yahoo! Inc. litigation set. In particular, analyse whether the apparently divergent outcomes of the Tribunal de Grande Instance de Paris and the United States Court of Appeal for the 9th Circuit support Johnson and Post’s thesis that in cyberspace traditional laws fail to be effective due to a lack of borders.

To answer this question I would expect the student to discuss in order:

  1. A timeline of the litigation following all six hearings – three in France and three in California.
  2. An analysis of the divergent decisions in Paris (that the listings were in breach of Art. R.645-1 of the Penal Code) and in California where they were found (at least initially) to be protected by the First Amendment.
  3. A discussion of which legal rules should apply to Yahoo! Inc. Given they trade in both the US and France which legal rule should take precedence in regulating content?
  4. An analysis of the Johnson and Post argument from Law and Borders (discussed in Ch.4)
  5. An discussion of whether the LICRA case set proves Johnson and Post’s Law and Borders thesis or whether the fact that both the French and US Courts took jurisdiction to hear the case actually disproves the thesis.

2. Discuss critically the statement that ‘the divergent approaches of the United States and European states in relation to the regulation of online expression, in particular the distinction between the “marketplace of speech” concept and the “human dignity” concept have left such international uncertainty in regulation of this area that the effect has been to effectively deregulate all forms of online speech’.

To answer this question I would expect the student to discuss in order:

  1. A clear analysis of the philosophical foundations of the marketplace of speech approach (where I would expect to see Douglas Vick mentioned) and the European human dignity approach with its roots in Mill and given effect by laws which act as brakes or restrictions on the marketplace of speech such as Art.10(2) of the ECHR.
  2. A focus on where the approaches lead to a divergence on speech regulation in particular the exceptions to free speech as mostly found in Europe. Such as in s.6 of the Race Relations Act 1965, and ss.17, 23 and 28 of the Public Order Act 1986, 27 Public Order Act 1986. Also the common law of blasphemy. This may be compared with the fighting words restrictions seen in the US.
  3. A discussion of the problem (in US constitutional terms) of Reno v ACLU. Does this mean that the US First Amendment is effectively exported to Cyberspace (see Vick).
  4. An analysis of the Johnson and Post argument from Law and Borders (discussed in Ch.4)
  5. Does this mean Cyberspeech is deregulated? A discussion of R v Sheppard and anor as a case study and an evaluation of the student of this final question.
  6. Does political disinformation form a threat to fundamental rights and democracy? How

3. Does political disinformation form a threat to fundamental rights and democracy? How should we regulate it?

To answer this question I would expect the student to discuss in order:

  1. Astroturfing and Leiser’s concept Cyberturfing.
  2. The evidence of the harm fake news does to political discourse from studies such as the Howard/Kollanyi study of bot activity in the Brexit referendum and the Allcott/Gentzkow and the Center for Human Rights and Global Justice studies of the 2016 Presidential election in the US.
  3. Definitions of fake news/misinformation and disinformation from the likes of D’Ancona, Allcot/Gentzkow and Leiser focusing on Leiser’s taxonomy od online deception.
  4. An examination of regulatory responses including the proposals of the House of Commons Digital, Culture, Media and Sport Committee inquiry, the High-level Group on Fake News and Online Disinformation and the outcomes of both in terms of the Online Safety Bill and the Strengthened Code of Practice on Disinformation.
  5. An examination of the regulatory response as set against Leiser’s taxonomy and measuring whether the balance between free expression and democracy is properly struck.
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