To Örebro University

In the post-truth era (Vazquez, 2021) where “objective facts are less influential in shaping public opinion than appeals to emotion and personal belief,”[1] the question arises whether protecting the free flow of information is enough to fully safeguard the function of the political debate in a democratic society. Freedom of expression increasingly comes up against a complex socio-technical communications landscape which also harbours various degrees of potentially harmful communication. Nevertheless, freedom of expression is traditionally protected both horizontally (between individuals) and vertically, between State and individuals. From the Enlightenment and onwards, protecting freedom of expression was primarily sought through non-interference by the State. (Argren, 2023, p. 39.) The harmfulness of communication varies depending on several factors and circumstances: Harmful communication directed at individuals may lead to harm that can be physically, socially, economically, or psychologically in nature. Furthermore, harmful communication is often foreseeable. The State here has at least a double role: First, of course, as a regulator, but second, also as a producer and disseminator of information – potentially based on a particular State agenda. (Pentney, 2022, p. 3).

Arguably, the more harmful the result may be and the more foreseeable the risk of such harm is, the greater the positive obligation will be on the State to a) prevent such harm from occurring and b) take action to put an end to such harm, should it materialise. It is argued that preventive mechanisms that can be put into action if and when required should be sought. It is submitted that the public order in a democratic society requires the same scope of protection for freedom of expression as always, but what is required is a “preventive toolbox”, that may be temporarily activated in a regulated manner if or when needed. Such a toolbox needs to take into consideration that the socio-technical process of harmful communication involves multiple actors and parts: such as instigators, agents, a message, intermediaries and targets/interpreters. (Bontcheva &Posetti, 2020, p. 3). In addition to determining what action can lawfully be undertaken, a “preventive toolbox” would as a minimum also have to develop triggers for when respective actions are due.

 [1] Oxford Languages, ‘Word of the Year 2016’ Oxford University Press, available at: www.la nguages.oup.com/word-of-the-year/2016/