Responsibility to publish: balancing privacy and freedom of expression

Abstract

The main topic of this contribution is how privacy rights influence the exercise of freedom of expression. The contribution has three components. The first part of this contribution discusses the development of privacy rights from ‘the right to be left alone’ to the ‘the right to decide what information is shared’. This changing conception is related to freedom of expression rights. The author draws from Arendt, Foucault, and Mill to discuss this development. The second part consists of a short exposition of Dutch (constitutional and criminal) law. In this exposition, the author focusses on the constitutional freedom of expression and the criminal articles regulating publishers and pressers. In the third part, constitutional and criminal law developments for publishers and pressers are compared to the same laws for internet intermediaries. The author argues that for internet intermediaries the focus is not on safeguarding freedom of expression rights but on privacy rights. Under the influence of the internet and the privacy regulation from the European Union, the author shows that informational privacy rights have a negative impact on freedom of expression rights. The growth of privacy rights manifests itself in an increasing responsibility for intermediaries to censor content, while the individual responsibility (both in moral and legal variety) to engage in the public debate decreases.