Invectivity online: the protection of privacy and personality, civil liberties, and the constitution of (digital) public spheres
The research project is part of the Collaborative Research Centre 1285 ‘Invectivity. Constellations and Dynamics of Disparagement”. It investigates how democratic constitutions deal with invective expressions on the Internet. Central to the Project is a re-mapping of the relationship between rights to freedom of expression and rights to privacy and personality. In this context, the constitution of public sphere(s) ought to be the pivotal point in the formation of an adequate research perspective. This is because public spheres are a fundamental condition of democratic constitutions, a criterion for distinguishing freedoms of expression from protection of personality as well as a characteristic feature of invective Internet phenomena.
Invective utterances on the Internet, in the form of cyberbullying, shit storms, doxxing, shaming or swarming, for example, challenge the well-established relationship between rights to freedom of expression (freedom of opinion and freedom of the press, but also artistic freedom) and rights to privacy and personality. They do not simply represent further cases of a collision of rights that is typical for democratic constitutions. Rather, they signal a far-reaching transformation of the media conditions of society, which affect the basic coordinates of democratic constitutionality: the relationship between privacy and publicity, which finds a specific concretization in the relationship between the protection of personality and freedom of expression. The presence and absence of the participants of online communication can no longer be assigned to either side of the relationship; publicity on the Internet is indestructible and makes the production of public spheres unpredictable; the speed and location of emerging digital public spheres follows different rules than in the case of public spheres produced for and by mass media; anonymity serves not only as a means of protecting privacy but also as a threat to it. These aspects of digital life worlds and rationalities force the law to reformulate the boundaries of public and private (also) in relation to digital communication.
Invective phenomena such as cyberbullying or shit storms are of paradigmatic importance for this dimension of constitutional rights protection: every restriction of freedom of expression undermines a basic condition of democracy, the possibility of public communication; but unlimited possibilities of expression run the risk of depriving those affected of the possibility of communicative (democratic) participation. In the foreground of the investigation are therefore problems of protecting both freedom of expression and rights to privacy and personality, which result from such invective utterances and which are treated from a comparative law perspective (exemplary: the USA) that highlights different ways of dealing with these problems. Starting from invective phenomena on the Internet, a fundamental remapping of this field, including transnational differences and references, will be undertaken for the first time. The concept of invectivity makes it possible to synthesize previously scattered phenomena in a single research perspective.
On the other hand and related to this, the research project will focus on the triple role of the public sphere in this constitutional constellation: Firstly, publicity is the mode and criterion of invective utterances on the Internet. Secondly, the collision of freedom of expression and protection of personality runs along the respective borderline between privacy and publicity instituted by the constitution. Thirdly, against this background, the emergence of digital public spheres (Münker 2009), becomes a challenge to the idea of a constitution through the lens of democratic theory: Democratic constitutions must enable the creation of ever new, even fragmented, simultaneous and digital public spheres, while at the same time protect individuals from these public spheres to such an extent that they remain self-determined and thus capable of democratic participation.
Overall, the project not only examines phenomena of invective expressions on the Internet in terms of constitutional law, but makes comprehensible in terms of constitutional theory the fundamental shifts in the relationship between publicity and privacy, which are indicated by the Net phenomena. At the same time, the study of invective Internet phenomena will contribute to the contouring of the concept of invectivity by typifying these phenomena and deciphering their specific implications for democracy and the public sphere.