Internet discussions: To delete, or not to delete?

The vast majority of democrats are advocates of the broadest possible freedom of speech, because no democracy can exist without it. Those who back an absolute freedom of speech, however, are most frequently recruited, paradoxically, from the ranks of those who disseminate pornography or racism, people whom it may difficult for the rest of us to consider democrats.

An enormous amount of rules exist related to the right to communicate facts and opinions in public discourse, which means that such expression will never be absolutely free. Information can cause irreversible damage, for example, by revealing military secrets, influencing trials, or inciting racial hatred.  

The right to freedom and the burden of responsibility

Ideas must always be free and communication with one’s own ideas must be free also, but the communication of those ideas to someone else may be subject to restrictions. However, those restrictions must always be based on the law, and they must be clear, concrete, and predictable.  

The prerequisite, therefore, is to formulate these laws such that they are comprehensible and precise enough for citizens to be guided by them. Even when there is an urgent social need for a restriction, it must always be proportionate, and the state authorities must give a satisfactory justification for it.  

Freedom of speech, which is essential to a free state, consists of the authorities not placing any preliminary obstacles in the way of the media. However, that does not mean that appropriate restrictions and sanctions cannot be imposed post facto.

Everyone has the right to publish what he or she considers appropriate – that is the essence of freedom of speech. However, if someone publishes something that contravenes the law,then he or she must bear the consequences of that behavior.

Freedom of speech is one of the basic signs of a democratic society and one of the basic conditions of an individual’s personal development and fulfillment. That goes not just for information and opinions that are positively accepted and assessed as neutral or non-invasive, but also for those that attack, irritate or shock.  

The free flow of information benefits society

The opinion that the greatest protection for freedom of speech is essential does not consist of the naive notion that words can never do harm, but is based on the conviction that the free exchange and flow of ideas is beneficial to society and outweighs the negatives caused by "harmful" ideas. That is why it inappropriate to wonder whether passionate believers should or should not be permitted to display their opinions against abortion in the public spaces in front of abortion clinics.  

It is also incorrect for a court to punish someone who draws graffiti on the image of a politician on an election poster, because that, too, is the expression of a political opinion that is not harmful to society (although it may be somewhat infantile). Freedom of expression and speech represent the free market of ideas, where criminal, false and harmful doctrines will be overcome by correct views and truthful claims.

This freedom of an open market of ideas and its defeat of false notions benefits all of society. However, the situation is not that simple, as freedom of expression has its limits, not just external ones where the restrictions are dictated by legal regulations, but also immanent, inherent ones – freedom of expression involves a responsibility for such expression that is not moral or philosophical, but involves accountability or liability as a legal category.  

The Internet has opened up unsuspected possibilities

The possibilities of the Internet have introduced a new dimension to freedom of expression and speech. The ease with which information is disseminated in cyberspace has changed the quantity of information, and as a consequence has led to a change in the qualities of that information and to a change in the understanding of freedom of speech itself.  

Without any mental or physical effort, anyone can reach a large number of people and also receive their immediate reactions online. These communications, moreover, can be delivered with either complete or partial anonymity and, in contrast to the publication of contributions by the classic media, which are highly elitist, these messages can now be extraordinarily plebeian.

At first glance, the free and general access to the Internet has facilitated the assertion of opinions into social consciousness by the greatest number of people ever, and at the same time, for the first time in history, everyone has been provided the same opportunity not just to receive these opinions, but also to disseminate their own and to thereby become actively involved in the life of a free civil society. The Internet, therefore, represents a significantly democratizing media environment that should increase the degree to which civic freedoms and human rights are enjoyed.

Instead of this being the case, we are witnessing a flood of hate speech on the Internet, published especially in the online discussions related to the material put out in particular by servers featuring journalism and news reporting. This hate speech is mostly of such a nature as to violate the personality rights of other discussants or the persons discussed by the main material, or it is so indecent and vulgar that it violates the rules of civil coexistence, and even racist, xenophobic speech espousing ideologies of intolerance and repudiating democracy and the rights of others is frequently found online.

To delete, or not to delete?

The question arises to what degree the organizers of these discussion formats, who are mostly the providers of information services, should delete, filter, or otherwise respond to these expressions of hate. It is evident that such an intervention is a restriction on their freedom of expression.    

As has already been stated, restrictions on freedom of speech are possible only when facilitated by law, when essential to a democratic society, and when instituted in the interest of protecting the values of a democratic society, i.e., in the interest of protecting the rights and freedoms of others or to uphold good morals. Protection of the democratic legal order from those who would threaten it cannot, at the same time, prescribe limits on freedom of expression that are too narrow.  

No legal norm will ever eliminate hatred, indecency, racism or xenophobia, as these phenomena are deeply rooted in some people, and they, too, have the right to freedom of expression. If the courts create rules for what kinds of expression are acceptable and determine which expressions violate the law, they are privileging a majority opinion and criminalizing a minority one.

The question arises, therefore, as to whether the fight against expressions of hatred on the Internet should actually take place at a different level from the legal one, in particular, at the level of child-rearing and education. It is possible that the criminalization of this particular kind of expression might merely cover up the actual essence of a problem that society does not know how to respond to.  

At the same time, such restrictions on those who speak hatefully could increase their radicalization and push them in a ghetto, which could result in social unrest. Restrictions on freedom of speech, moreover, lead to distortions of the democracy, which should not resolve conflicts violently, but through convincing argument and debate.  

Democracy must learn how to defend itself

The form of democracy that we want to privilege is essential to these considerations. It is obvious that most authors of hate on the Internet are opposed to democracy.

It has been frequently demonstrated in the past that the opponents of democracy have managed to exploit its weaknesses in order to gain power and subsequently destroy it, and that democracy has not been able to defend itself against such destruction. In response to this, there exists the legal and philosophical model of a democracy that defends itself, which means a democracy that protects itself from those opposed to it even at the price of suppressing some of the basic principles on which the democracy is based.  

This defense must be as strong as the degree of preparedness of the enemies of democracy to destroy it. The Constitutional Court of the Czech Republic has identified itself with this concept.

That court has ruled that this concept’s "legal application is justified, taking into account the historical experience with Nazi and Communist totalitarianism, not only in our country but also in the European context. If the opponents of democracy and the values ​​on which democracy stands are ready to attack, then the democratic regime must be prepared to defend itself, even by restricting fundamental rights in cases of necessity."

The European Court of Human Rights has also recognized this concept as a principle of European democracies. If the organizers of online discussions want to contribute to developing a democratic society, and to thereby fulfill one of the basic roles of the media, they must remove hateful expressions from their formats, even if in the Czech Republic a somewhat idiotic analysis of the law on information society services now making the rounds might lead some to the opinion that the media should not do this.