being detected by potential critics. “Bullying,” sometimes by “trolls” or bots, has become a dreaded threat. Such Internet activity seems more threatening than if it happened on TV or in a printed newspaper. Are threats harmful only when they travel, hidden away, through the dark corners of the Internet? No, as telephone harassment can also be a nightmare. The multiplying effect of social networks is to increase the dissemination, but not the nature, of criminal acts. Harassment, fraud, and threats are illegal acts in and of themselves, regardless of the medium or form of the message. Spanish courts have already established the concept of legal responsibility for Tweeting and reTweeting (Corredoira 2017).5
It seems that the universalization of communication mediated through the Internet is creating risks and potential “plagues” arising from the basic human behavior of communicating and sharing. The Internet is generalizing the right to receive and disseminate information to the many rather than the few, which is a strongly positive phenomenon, and yet sovereign states tend to be on guard because they see this as a development that leads to the emergence of potential enemies.
Along these lines, the European Union is even considering reducing anonymity on social networks and platforms such as YouTube and Vimeo. The governments of France, Spain, and Portugal6 made this request as part of the debate that took place as the EU’s Copyright Directive (Directive 2019/790) was being debated. This request was met with considerable resistance within the sector owing to its potential to restrict communication rights on the Internet7 as well as offline.
As mentioned, it is important to return to the foundations of the universality of these rights and understand their basic features. These rights apply equally to private and professional individuals using digital media. This is also the case in the United States under First Amendment doctrine, as Ugland analyzes in Chapter 6 of this volume.
Who is the “Universal Subject” in the Information Society, and what Rights does this Subject Possess?
If “everyone” has communication rights, such that “everyone” is the “universal subject” of them, that “universal subject” can be differentiated from the “professional subject” (that is, a journalist working with any medium or format of dissemination) as well as from the organized or corporate subject. By this, I mean that this subject also includes media, as Desantes (Desantes Guanter et al.1994) commented: “Universality also applies to the communication medium for an obvious reason: if communication is a necessary good, no source of information can be closed off. Because the positive provisions refer to media indistinctly, it must be understood that all media are included, even those of the past and the future; this is the case in UDHR Article 19.”
Private individuals also hold other rights closely related to their communication rights. For example, they enjoy the universal right to Internet access, which amounts to a right to share and participate in Internet culture, to create and be recognized as authors of content, and to have access to education and employment. This was part of the motivation of the 2003 Geneva Declaration, which is entitled “Our Common Vision of the Information Society,” meant as a response to the challenges posed by information and communication technologies (ICTs), and centered on the right to communicate as a means of updating the conception and reach of communication rights for our current times.
1. We, the representatives of the peoples of the world, assembled in Geneva from 10–12 December 2003 for the first phase of the World Summit on the Information Society, declare our common desire and commitment to build a people-centered, inclusive and development-oriented Information Society, where everyone can create, access, utilize and share information and knowledge, enabling individuals, communities and peoples to achieve their full potential in promoting their sustainable development and improving their quality of life, premised on the purposes and principles of the Charter of the United Nations and respecting fully and upholding the Universal Declaration of Human Rights.8
The universality and interdependence of rights enshrined in the UDHR and the Geneva Declaration subserve the development and democratization of our societies. The 2003 declaration was more focused on describing a philosophy than it was on proposing a specific program of implementation. In the 15 years since the declaration was made, the vision that it presents has gradually taken shape through initiatives led by organizations such as the International Telecommunications Union to define specific universal rights for the information society.
Here, I would like to emphasize an essential point. Universal rights are rights of individuals who hold subjective rights and who are able to exercise those rights. The “person-based” or “people-centered” nature of fundamental rights lies at the heart of the principles of communication that I will consider later, and it therefore imposes an ethical obligation on policies and policymakers.
The information society is not a closed society. Nor is it a place for a privileged few. Rather, it extends across the globe and should become even more universal among people, countries, and media. Indeed, universality lies, as expressed by the United Nations (2008, See, for example, the following statement by UN in December 2008 https://www.un.org/en/chronicle/article/are-human-rights-universal), at the “core” of human rights, and it connects with the principles of interdependence, indivisibility, equality, and nondiscrimination. This relates to another research topic in communication law, namely minorities and how to guarantee communication rights to groups that are minorities owing to their members’ language, ethnicity, disability, age, or any other sociopolitical reality that may put such a group at a disadvantage in relation to others. The principles of universality and justice demand the creation of conditions that ensure equality for minority groups, sometimes based on their differences relative to the majority.
Communication rights, previously known in general terms as “freedom of expression” and also referred to as the “right to freedom of expression and information,” were fully defined in the International Covenant on Civil and Political Rights. These rights include the freedom to “seek, receive and impart” information, and they are characterized by six key features (INCL 2015) that are especially relevant in the Internet-based society. This amounts to a quite vehement stance despite criticisms of the UN system of rights. Though other authors in this volume will return to this topic in greater detail, I wish to highlight that the following are among the principles of communication rights:
They apply to all without distinction. Any discrimination based on language, color, race, sex, religion, or opinion is void.
Their geographic area is universal and knows no borders. This universality is guaranteed by the Internet, unless services or sites are blocked, as they still are in many countries.
Their scope, while not limitless, is broad and affects “information and ideas of all kinds.” The UN Human Rights Committee employs the term “expression” in a broadly defined way to include not only political, cultural, and artistic expression, but also “controversial, false and even shocking expressions.”
They include the right not only to receive information but also to impart or disseminate information. They protect radio listeners, broadcasters, witnesses of events or public protests, and protesters themselves. In other words, both active and passive exercise of the communication rights is guaranteed.
They demand that states create guarantees to protect them and eliminate any abridgments of these rights.
Finally, they include dissemination of ideas or messages in any form or medium.
Communication law and international texts hold that among subjects, professionals enjoy greater protection than private individuals. These professionals include journalists, full- or part-time reporters, bloggers, and those who own or publish their own media. They exercise universal communication rights (the “function of informing,” as Desantes stated in 1976) on the basis of authority tacitly delegated to them from private individuals. From this authority derive professionals’ special