Private censorship and Internet platforms: the freedom of expression and new censors of the digital agora

Abstract

The paper aims to explore what space should have the free speech of individuals on the Internet Platforms and their role in the public discourse and democratic system. The paper is composed of two parts. First part shall study the problem of the privatization of censorship on the Internet in its two variables: the censorship made autonomously by Internet platforms – that in this paper is called “censorship de facto” – and the censorship derived from national laws – that is called “censorship de jure”. In this latter category the censorship that derives from a judicial decision or an administrative one and the so-called delegated censorship shall be analyzed. Delegated censorship delegates the decision about whether and how censor a web-content to the same Internet platforms providing just a framework of principles to be considered by platforms in this type of process and involving a severe problem of chilling effect. The second part of the paper shall develop a general and theoretical framework of these phenomena and of the role of Internet Platforms. Firstly, the section shall explore the US legal system regarding these topics, specifically focusing on the State Action doctrine. Secondly, the paper shall try to understand how these phenomena could be considered concerning the paradigm of Article 21 of the Italian Constitution.