Building a Free, Safe and Demanding Space for Expression
By Thaima Samman, Attorney, Chair of the Working Group
“Reaffirming Freedom of Expression” – La villa numeris
A cornerstone of democracy, freedom of expression is a fundamental freedom of the highest order. Like any fundamental freedom, it is not without constraints, which must be strictly governed by the principles of legality, necessity and proportionality.
Today, freedom of expression is being tested by technological transformation and the massification of communication. The digital environment has liberated voices, but has also amplified vulnerabilities: the rise of hate speech, disinformation, coordinated harassment, the growing power of private actors, and the increasing presence of non-human systems within the public sphere.
How can we future-proof the principle of free, rigorous and pluralistic expression in an environment where too much abundance can sometimes cloud our judgment?
Our new digital reality comes with a string attached: there can be no right to complacency in the search for a modus vivendi capable of shaping a desirable world that guarantees the sanctity of freedom of expression.
At a time when Europe is redefining its regulatory standards, when platforms are reshaping the boundaries of linguistic expression, and when artificial intelligence is redistributing both the capacity of expression and the capacity of manipulation, we must approach these issues with clear vision and bold ambition.
It is in this spirit that our work over the past two years has led to the formulation of seven recommendations. Their ambition is straightforward: to ensure that freedom remains the rule and restriction the exception.
First, let us recall a fundamental principle: freedom of expression does not apply to robots. This right is a human right; automated systems cannot be its subjects. Consequently, the presumption of freedom — whereby any exception entails potentially lengthy and complex procedures — does not apply to them.
We need to stop for a moment and think things through: it is time to hit the pause button on legislative activity. We already possess a robust legal framework. The challenge is not to create new laws, but to better harness existing laws and apply them to contemporary practices. This approach will also enable us to identify if other measures are genuinely necessary instead of simply adding on new layers of rules that remain unenforced.
The judiciary — as the ultimate arbiter of disputes revolving around freedom of expression—also needs to be given more teeth.
However, we can’t rely on the courts alone. The spheres of accountability and action need to be broadened: first, to trusted actors who can help flag not only unlawful but also harmful content. Second, alongside the courts, and in order to respond to a plethora of potential disputes, we propose the creation of a consultative structure. Composed of legal professionals acting pro bono, it would be capable of swiftly informing platforms’ decisions to remove or retain content, and of protecting them, as far as possible, both against the risk of disseminating unlawful content and that of self-censorship.
No meaningful progress can be made without strengthening digital literacy and critical thinking, both of which are indispensable for telling apart information from manipulation and artifacts.
Finally, technology is not an enemy. On the contrary, it must be placed at the service of freedom of expression. Tools for monitoring, moderation and content authentication, when transparent and properly regulated, can help protect the public sphere and restore trust.
These recommendations outline an ambition to safeguard freedom of expression without being naive, grounded in justice, knowledge, technological mastery and cooperation between institutions, platforms and civil society.
In a world where speech spreads faster than the law, it is our collective responsibility to build a space for expression that is free, safe and demanding. The task is immense, yet within our reach — provided we bring clarity, ambition and innovation.
Foreword
Why a New Report on Freedom of Expression in the Digital Age?
The digital revolution is continuing to profoundly transform our societies, reshaping how citizens form opinions and express them in the public sphere. It has given us all the possibility to speak freely on social networks without traditional intermediation. On the flip side, these new spaces of freedom have also given rise to undesirable side effects: disinformation, hate speech and opinion manipulation.
In the face of rapid innovation and shifting geopolitical realities, it is essential to continually reassess how to maintain a robust and protective framework in which every individual retains the right to express themselves freely.
This framework must take into account, on the one hand, the limits imposed by law and, on the other, the paradigm shift from an expression once constrained by limited, nationally controlled means, to a boundless expression enabled by tools that transcend borders.
Far from settling the debate on the legislative framework of freedom of expression, the adoption of the European Digital Services Act (DSA) has strongly reignited the debate on critical issues such as the role of the judiciary in protecting this freedom, the role of platforms in content moderation, and the leeway available to Member States in defining the limits to freedom of expression. The DSA establishes responsibility rules for online intermediaries and regulates their management of content.
Through its original and unprecedented approach, this report seeks to reaffirm the fundamental principles of freedom of expression and to formulate concrete proposals addressing new challenges, including mass litigation and issues related to artificial intelligence (AI).
Why Is It Necessary to “Reaffirm Freedom of Expression”?
The digital revolution has had a paradoxical effect on freedom of expression. It has significantly fostered its flourishing by democratizing access to information and communication technologies. In today’s world, individuals and groups previously excluded from traditional communication channels can participate in the public debate. Public expression is no longer the monopoly of a limited number of media outlets and professionals. In democratic societies, any individual can now easily create and share content, contributing to diversified, peer-to-peer information sources.
However, this democratization has also deeply challenged the very principle of freedom of expression. Viral dissemination of hate speech (incitement to violence, insult, defamation), coordinated campaigns aimed at de facto silencing lawful ideas and opinions, large-scale dissemination of unlawful content, disinformation, and harassment have destabilized democratic societies and governments alike.
The working group firmly believes that addressing these challenges requires reaffirming fundamental principles and using them as the foundation for innovative solutions.
What Is the Working Group’s Approach and Originality?
The working group “Reaffirming Freedom of Expression in the Digital Age” seeks to rethink the implementation of freedom of expression and to make recommendations to ensure that it flourishes as it should, while correcting its sometimes devastating effects that may undermine other fundamental rights or law and order in democratic societies.
It brings together twenty-two members — recognized figures from the digital and freedom-of-expression spheres, academics, innovative business leaders, lawyers, engineers, and leaders of associations defending civil liberties and/or vulnerable populations. Approximately thirty leading experts (public authorities, technology platforms, content providers, tech companies, academics, lawyers, etc.) were consulted to contribute diverse perspectives.
This final report follows an interim report published by La villa numeris in October 2024.
Our Recommendations
Recommendation #1
There is no need for further legislation at this point in time. The core principles underpinning freedom of expression remain fully relevant. It is essential to preserve a principled and evolving legal framework in which freedom remains the norm and restrictions are strictly circumscribed by law.
Digital-related challenges do not necessarily require new legislative reforms, but rather a rethinking of how existing rules are implemented, particularly in the context of mass litigation.
Recommendation #2
Enable the judiciary to fulfil its role. As the ultimate arbiter of the limits of freedom of expression, judicial and administrative courts require financial, staffing, and training resources commensurate with the stakes and tailored to the digital environment.
Judges need to understand the role of the various actors and be digitally proficient for sound management of disputes within a timeline aligning with their societal impact.
Where harm, especially to individuals, falls within its jurisdiction, the criminal justice system must act decisively. Prosecutorial guidance should prioritize offences committed online, especially where a body of identical or similar publications clearly constitute harassment, where minors are endangered by porn that is too readily available to them, or where communities are targeted by racist, antisemitic or sexist speech. Society must reaffirm its values through its enforcement mechanisms.
Recommendation #3
Strengthen dialogue between civil society actors with recognized expertise (trusted flaggers), the State, and platforms to expedite the removal of problematic content. A clear regulatory framework, grounded in the Digital Services Act, should govern the activities of trusted flaggers and ensure their independence.
Recommendation #4
Establish a consultative structure composed of volunteer legal professionals to provide platforms with prompt, reasoned opinions on the legality of content.
Recommendation #5
Redouble efforts in education on technology, media literacy, rational argumentation and critical thinking.
Recommendation #6
Encourage and facilitate the use of new technologies to counter negative effects, including authentication and traceability tools for content.
Recommendation #7
Expand the deployment of bot-detection tools and encourage research enhancing them.
