Speech Across Borders

As both governments and tech companies increasingly seek to regulate speech online, these efforts raise critical, and contested, questions about how far those regulations can and should extend. Is it enough to delink or delist material in a geographically segmented way, or are global delinking and takedown orders needed to protect the underlying interests at stake? These questions have been posed in two high-profile disputes before the European Court of Justice and in litigation that has pitted Canadian and U.S. courts against one another. Meanwhile, a new form of geographically-segmented speech regulation is emerging—pursuant to which speech is limited based on who is speaking and from where, as opposed to what is being said. 

This Article examines the ways in which norms regarding speech, privacy, and a range of other rights conflict across borders, and examines the implications for territorial sovereignty and prospects for democratic control. It details the power of private-sector players in adjudicating and resolving these conflicts, the ways in which governments are seeking to harness this power on a global scale, and the broader implications for individual rights. It offers a nuanced approach that identifies the multiple competing interests at stake—recognizing both the ways in which global takedowns or delisting can, at times, be a critical means of protecting key interests, and the risk of over-censorship and forced uniformity that can result. The Article also suggests new forms of decision making and accountability to reflect the shifting power structures and increasing porousness of borders online.