Regulating communicative risk: online harms and subjective rights

Keenan, Bernard (2023) Regulating communicative risk: online harms and subjective rights. Law and Critique , ISSN 0957-8536.

Abstract

States are in the process of creating controversial legislation aimed at subjecting ‘harmful’ online communication on social media and search engines to new regulatory regimes. Critics argue that these measures are serious threats to the right to freedom of expression. This article first draws on elements of systems theory to reframe the right to freedom of expression in democracy as a paradoxical critical engine which protects the value of second-order observation. Taking the UK’s Online Safety bill as the paradigm example of the new laws, the article analyses the concept of harmful communication at three levels: society, organisation, and subject. It identifies a shift in the law’s epistemic approach to communication, by which individuals are reconfigured from agential subjects into contingent users, whose capacities are determined by the structure of online communication platforms. Arguing that it is insufficient to merely reaffirm subjective rights in this environment, the article suggests systems theoretical analysis as a means of identifying further lines of critique.

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