The internet and social media are public spaces: it is legitimate to restrict freedom of expression

The European Court of Human Rights offers no protection for ‘keyboard warriors’, particularly in cases where users disseminate aggressive messages containing obscene language without taking steps to restrict access to the content, leaving everything in the hands of the algorithms set by TikTok. This was clarified by the European Court of Human Rights in its judgment of 19 May, Miladze v. Georgia (application no. 41585/83), in which the Court in Strasbourg also specified that the concept of public space includes cyberspace, social media and blogs.

Consequently, the rules governing the public sphere also apply to the cyber domain, and the right to freedom of expression, which includes the right to challenge a local authority’s decisions on urban mobility, does not apply where a message criticising the politicians responsible for those decisions goes viral on TikTok even though it contains obscene language or hate speech.

A Georgian activist had criticised the decisions of Tbilisi City Council politicians who had implemented a public transport reform to improve infrastructure for the benefit of pedestrians and, above all, cyclists – although, according to him, the dedicated lanes were being used preferentially by certain public figures. The man had subsequently edited a video on TikTok containing obscene remarks directed at the mayor and other local councillors, which quickly went viral. Administrative proceedings had been brought against him on grounds of public order, resulting in him being fined.

Hence the appeal to the European Court of Human Rights, which, in his view, was obliged to uphold Article 10 on the right to freedom of expression even in the case of messages and videos similar to those he had shared. This position was not accepted by Strasbourg, which recognised that the national measure was an interference with freedom of expression, as provided for by law, even though the domestic rules did not expressly refer to the digital sphere. The concept of a public place, in fact, includes cyberspace as well as online platforms, social networks and blogs. It is not necessary – the Court states – for domestic law to expressly mention these new areas because the digital world falls within its scope automatically and, therefore, the restrictions applicable to printed or televised material also apply to cyberspace.

Having therefore recognised that the restriction was provided for by law, even though it did not explicitly refer to the digital world, the Court held that the restriction on freedom of expression was legitimate on account of the aggressive and vulgar language used, taking into account the country’s cultural and linguistic context. In assessing the texts, the Strasbourg court noted that they were not a satirical text or political criticism and there was no linguistic necessity to use vulgar expressions. Nor is the warning on one’s own page that obscene language will be used sufficient to exonerate the ‘keyboard warrior’, because what matters is taking appropriate measures to prevent access to such content by individuals such as minors, without allowing the flow of posts to be regulated solely by algorithms.