Please ask experts to answer the information law.

Before asking questions, let's look at two cases: one is the case of Huang Jing, a female teacher in Xiangtan, Hunan, who died naked in the dormitory. Under the initiative of "Windcatcher", the online paradise cemetery was established, which triggered the hype of major media and websites. Under the pressure of many netizens representing public opinion, the case went through twists and turns, five autopsies and six appraisals, and finally it was 65438+ in July 2006. Because this case has been played for such a long time under the impetus of the Internet, it is known as "the first major case of China Internet". The other was the Bronze Beard incident in April 2006. When the online name "Feng Jiantou Guhan" made the chat record and one-night stand between his wife and Bronzebeard public, Bronzebeard became the target of public criticism and was besieged by abuse, condemnation, threats and Jianghu killing orders, which seriously affected himself, his family and the school. Later, the perpetrators claimed that it was fabricated and immediately vanished. This event is called "2008". The author put forward these two cases, not to pay attention to their results, but to criticize and reflect on an important issue involved-freedom of speech on the Internet. One of the biggest similarities between the two cases is that the Internet was used as the medium, which was promoted by netizens all over the country in unison, thus changing the course of the whole incident. One is the judicial trial, and the other is the moral and ethical trial, which embodies the great influence of the network age on real life. As legal persons, what we should see from these two cases is the absence of law. Therefore, we can't help asking the following questions: How to treat the speech in the network? How to standardize the freedom of speech under the network? This paper discusses the value function, normative orientation and legal control of freedom of speech on the internet, and points out that freedom of speech under the internet must be under constitutionalism and cannot be separated from constitutionalism.

Second, the value function of online freedom of speech

The rapid development of network technology has greatly changed people's traditional way of communication. No matter where you are, as long as the Internet exists, you can communicate and express your opinions without being restricted by space-time objects. It also makes the right to speak move from the traditional elite class to the civilian class, and realizes the goal that everyone can express their views on an event. As far as the value function is concerned, online freedom of speech has the following functions: (1) promoting freedom. Human freedom includes physical freedom and spiritual freedom, among which spiritual freedom includes freedom of imagination and freedom of expression. In traditional society, the traditional concept of "disaster comes from the mouth" imprisons people's right to express their thoughts freely. Freedom of speech can only be an armchair strategist, and people can't really realize "knowing everything and saying everything". On the Internet, because "anonymity reduces their recognition probability and their fear of revenge", people can speak freely and express their ideas freely, which is the traditional expression medium. (2) Promote the democratic function. Traditional communication and exchange methods are difficult to truly reflect public opinion. Face-to-face communication always makes people nervous to some extent. On the Internet, you can hear more voices and listen to different opinions. At present, some local governments' "online deliberation" and "online office" are aimed at truly reflecting public opinion. (3) Convenient communication function. As long as the Internet exists, you can communicate with any friend in the world, and you can also share your thoughts with netizens. This convenient communication was unimaginable in the past. The existence of the Internet has made the world smaller and accelerated the communication between different countries, regions and people. (4) Carry forward the function of justice. In recent years, jing wong, Liu Yongan, Sun Zhigang and other cases have caused great pressure on judicial organs due to online public opinion. We should not blame them for interfering with judicial independence, but we should also see that they are citizens' longing and longing for justice. The ups and downs of these cases, the revision and correction of sentences, are inseparable from the promotion of online speech, which makes the judgments closer to justice. But "the content of the network is as rich and colorful as human thought", it has flowers and thorns; It can be an angel or a devil. Therefore, when we see the positive value of online freedom of speech, we can't ignore its negative value: (1) one-sidedness. Because of its inherent virtuality, online speech has great one-sidedness in viewpoint. In Huang Jing's case, under the deliberate operation of mother and "tracker in the wind", many different voices can't be reflected on the Internet, but they can confuse people's hearing and hearing, thus losing their correct judgment; (2) non-extensive. According to statistics, the composition of netizens is very complicated, including minors, workers, scholars and government workers, but most of them, especially those who post online, are part of them, especially young people around the age of 20. Their views are not widely representative, and are generally produced by group effects. (3) Lack of rationality. Most netizens on the Internet are born after 80s. They have passion, ideals and a sense of justice, but because they are too young and easily influenced by emotions, their kindness is taken advantage of. (4) deceptive. The network itself is a virtual thing, and most of the comments above cannot be verified, so it is deceptive to some extent. In the Bronze Beard incident, we can see how the majority of netizens were deceived step by step by the "sharp sword and cold bones". Based on the duality of online freedom of speech, we should standardize it and make it develop on a healthy road.

Third, the normative orientation of online freedom of speech.

Freedom of speech is not only a person's personal right to speak freely; It is also the right of others to listen to what others say. Freedom of speech is not only the freedom to express opinions slightly different from our ideas; As the late Judge Jackson said, freedom of speech is "the freedom to hold different opinions on issues that touch the core of the existing system". In the history of freedom of speech, we have to explore some famous precedents to find out the hidden meaning behind them. In the case of Thornhill v Alabama (1 904) in the United States, the federal supreme court pointed out that article1of the constitutional amendment established freedom of speech, that is, Congress may not make laws depriving people of freedom of speech, but it created the principle of "obvious real danger" when implementing this article. In the case of 19 19 Schenk v federal government (Schench v.U.S), the Supreme Court directly tried the precedent of the government's restriction of speech, which became the turning point of 1 amendment and legally allowed the government to suppress dangerous speech. In the case of 1976, Handyside v. Britain, Britain established that freedom of speech is a basic right, which is applicable to the expression of various thoughts and opinions. Even if these remarks may offend people, the exercise of these remarks must be based on the principles of preventing chaos or crime and protecting health or morality, thus indicating the limits of exercising freedom of speech. In the case of Wihelm Elfes (1953) in France, the Federal Constitutional Court dismissed the prosecution because it was illegal to read the declaration of Germany at the Vienna Peace Conference. The explanation is that the Constitutional Court recognizes that freedom of speech is a basic right and should be protected, but this does not mean that a person can express his speech without restriction. If higher interests (such as national security and important interests) are endangered, it should be stopped.

The above-mentioned famous cases have a common feature, that is, freedom of speech, but it should be restricted. Therefore, freedom of speech should be regulated. Countries have formed a series of principles in legal practice: 1, the principle of public welfare. The French Declaration of Human Rights points out that when expressing opinions "disturbs the public order stipulated by law", it should be stopped. Because while disturbing the public order stipulated by law, it also infringes on the freedom and safety of all people. Article 12 of the Japanese Constitution stipulates that citizens shall not abuse the rights guaranteed by the Constitution and have the responsibility to use this right for public welfare. 2. Clear and direct danger principle. In Schenk v. USA (Schench v. USA), the Supreme Court pointed out in its judgment that the characteristics of all behaviors are determined by their environment. No matter how strictly protected the freedom of speech is, if someone lied that a fire caused great chaos in the play, such speech should not be guaranteed. Similarly, people who make statements with violent effects are not protected. No matter what happens, we should examine whether the statement expresses clear and direct danger. 3. The principle of proportionality and ex post facto review. Bridges v California 194 1 and new york times 197 1. The former principle requires that when dealing with conflicts of interest, the interests of the two should be measured and compared, and judges have greater discretion to choose from them; The latter principle requires the government not to ask news organizations to ask the court to ban unpublished news, because that will lead to the abuse of power and the shrinking effect of freedom of speech. 4. More speaking principles. It requires that "unless the evil caused by speech is so urgent that it is too late to fully discuss it, it will happen." The danger of words should not be obvious and immediate. If there is still time to expose lies and fallacies through discussion and prevent disasters through education, then the remedy is more speech, not mandatory silence. "5, the principle of injury. This was put forward by Mill. He believes that freedom can only be restricted if and only if it does harm to society or others, otherwise it is unfair. ....

Protection and restriction of freedom of speech in Britain

Author: Jiang Xiaohong

Article source: China French Open

Number of visits: 388

The protection of any basic rights is a general rule, and the restriction of basic rights is an exception. In a democratic society, the relationship between general principles and exceptions cannot be reversed. The right to freedom of speech is the cornerstone of a democratic society. Only by clarifying the exceptions allowed by law can we define the scope of freedom of speech enjoyed by people. Because the protection of any right is not absolute, even if the protection of one basic right conflicts with the protection of another basic right, concessions must be made. Of course, this does not mean that one basic right is more important than another, but it is necessary to find a balance between the protection of various rights. The balance between different rights and interests is very common in all countries' legal systems. However, how to find this balance point and which side to favor among various rights is a problem faced by governments. For example, British policies and laws on the media are undergoing major changes, including readjusting the balance between the media's obligation to investigate and report news and citizens' right to protect their privacy and reputation. Based on this kind of thinking, this paper attempts to seek useful experience for China by investigating the situation of freedom of expression in Britain.

The Right of Freedom of Speech in the European Convention on Human Rights

Unlike the United States, there is special freedom of speech. The First Amendment to the Constitution clearly stipulates that the right to freedom of speech is protected by the Constitution as a basic right in the form of the Basic Law. Britain has no written constitution. As a founding member of Council of Europe, Britain ratified the European Convention on Human Rights in 1950, and passed the Bill of Rights in 1998, which took effect in June last year. The Bill formally incorporated the Convention into British domestic law, which greatly changed the legal treatment of human rights in Britain. Any domestic legislation in the UK must be consistent with the Convention. Any court in the UK has the right to declare a piece of legislation of the British Parliament inconsistent with the Convention and urge the Parliament to take measures to amend the relevant laws. "The European Convention on Human Rights is a constitutional document to adjust public order in Europe", [1] has constitutional status in Britain. Article 10 of the European Convention on Human Rights makes more specific provisions on freedom of speech:

Everyone has the right to freedom of speech. This right should include the freedom to hold opinions, the freedom to receive and disseminate information and ideas, and the freedom not to be influenced by public rights and borders. This article does not prevent the state from establishing a licensing system for radio, television, film and other enterprises;

The exercise of the above freedom is accompanied by certain responsibilities and obligations, so it should be subject to certain forms, conditions, restrictions or penalties. Such restrictions should be prescribed by law, necessary for a democratic society, conducive to national stability, territorial integrity or public safety, and conducive to preventing chaos or crime, safeguarding health or morality, protecting the reputation or rights of others, preventing the disclosure of confidential information, or safeguarding the authority and justice of judicial organs.

It can be seen from the above provisions that "freedom of expression", as the most basic civil right, should be universally protected, but it is not absolutely protected or unlimited. This general and special relationship between protection and restriction is reflected in this article again. This is the most basic understanding of freedom of speech in the European Convention on Human Rights. In addition to article 10 of the European Convention on Human Rights, article 17 is also a legal provision related to the right to freedom of speech. Article 17 of the Convention stipulates that nothing in the Convention shall be interpreted as follows: any ongoing or completed act that damages the rights and freedoms recognized in the Convention is strictly prohibited, and of course, appropriate restrictions on freedoms and rights are allowed within the scope stipulated in the Convention. It can be seen that the abuse of freedom of speech violates other rights and freedoms guaranteed by the Convention, which is expressly prohibited, and the principle that rights should not be abused is one of the basic principles of the Convention.