Private Regulation and Freedom of Expression

Fabrizio Cafaggi, Tony Prosser, Federica Casarosa, Federica
2017 International Journal of Communication   unpublished
Freedom of expression as a constitutional right is common to European countries. The scope of application of this right is defined through the jurisprudence of domestic and European courts (European Court of Human Rights and the Court of Justice of the European Union), an ongoing process that determines not only the boundaries of freedom of expression but also its implications for media regulation. This article builds on this jurisprudence, constitutional principles, and the qualitative data
more » ... vided by the MEDIADEM project to understand what freedom of expression entails from a regulatory perspective and whether international and national, notably constitutional, instruments establish criteria that govern how the regulatory space can, or should, be partitioned between public and private spheres of operation. Freedom of expression as a constitutional right is common to European countries. The scope of application of this right is delimited through the jurisprudence of domestic and European courts (European Court of Human Rights [ECtHR] and the Court of Justice of the European Union [CJEU]), an ongoing process that also clarifies the implications of freedom of expression for media regulation. Constitutional principles contribute to the definition of the media and the choice among different strategies for regulating the media, including the degree of complementarity between public and private regulation. As is evident from many national legal systems, the principle of freedom of expression can lead to the development of criteria that determine how the regulatory space is to be partitioned between, on the one hand, those areas that can or should be regulated by legislation and, on the other, those that should be left to self-regulation. In other words, by setting the permissible limits of legislative intervention, they "implicitly" Fabrizio Cafaggi:
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