In the context of a ruling recently issued by the Supreme Court of Justice in Mexico (hereafter, “the Court”), in a case in which the right to freedom of expression and copyright on the Internet converged, last Friday, June 16, four jurisprudential theses were published, same that recognize that the Internet is a fundamental means, today- in the so-called information age- to exercise the freedom of expression and opinion. In this sense, the Court stated that the flow of information through the Internet must be limited as little as possible, which means that it can be restricted under exceptional and limited circumstances, as establish in applicable laws.
The Court pointed out that restrictions to the freedom of expression, on the internet, must meet the following criteria to be constitutional: (i) they must be provided by law, (ii) they must be based on a legitimate purpose, and (iii) they must be necessary and proportional.
Accordingly, the Court emphasized that legal operators must consider that there are three types of content categories or expressions, which are: i) those that constitute a crime, ii) those that are not punishable as a crime, but can justify a restriction and a civil suit, and (iii) those that do not give rise to criminal or civil penalties, but which pose problems in terms of tolerance, civility and respect for others.
The three categories of contents will require different legal and technological solutions. In the first case, the vulnerability of human rights of others is so great that it justifies imposing a generic restriction on websites, such as blocking the site. In other cases, restrictions on freedom of expression and the right to information must refer to a specific content, since, in principle, the generic restriction/blocking of websites is not a permissible limitation.
Thus, even when the Court tries to balance the mentioned rights, it fails to consider the technical issues inherent to the case, i.e. to impossibility Internet providers to block specific content on a website. With this, there will probably be a negative impact to the efforts of fighting illegal contents on the Internet.