网络环境下言论自由及其界限的法理探究
发布时间：2018-09-13 13:49
【摘要】： 言论自由是公民的一项基本权利,是宪法为了保护个人自我表现、自我实现和自我决断的一种基本权利,是民主和法治的基石。随着互联网的兴起,网络媒体打破了传统媒体在言论自由中的局限性和垄断地位,公民在表达观点和传播信息方面享有的自由度得到了前所未有的扩展,这为进一步推动文明发展和社会进步创造了条件。但是,就像一部分人在网络新技术面前不知所措一样,许多人在网络“空前的自由”面前也无所适从,开始滥用网络技术的进步与信息传播的便利,在网上披露、宣扬他人的隐私,肆意攻击侵犯他人的权利,并把这种对技术进步与传播便利的滥用,理解为真正的自由,这其实是自由的滥用,违背了公民在行使个人权利的同时不得侵犯他人合法权利的准则。与此同时,更加不知所措的正是肩负网络治理之责任的政府。从国家监管的角度来考察网络环境的特征,一方面在网络环境下,国家所保护的各种利益相互交织在一起,日趋复杂；另一方面,面对“先有网络,后有监管”这一互联网监管无法回避的现实状况,国家权力呈现出不可逆转地“弱化”之特征。如是,面对网络环境下各种权利冲突更加明显或剧烈的现实,如何进行权利的配置、权衡与取舍就成为解决问题的关键。与此同时,面对在网络环境中产生并因网络这一特殊环境而变得愈加复杂的由众多网络环境中之各类言论所引发的种种纷争,无论是司法者(法官)、执法者(行政机关)还是立法者都不能听之任之、熟视无睹。如是,在解决前述问题的时候,我们又会不得不面临这样的问题：传统环境下所确立的那些言论自由的界限,在网络环境下是否还依然能够发挥既有的效用呢?或者说,网络环境下言论自由的界限究竟是什么?笔者认为,依据传统环境之特征所确立的言论自由之界限在网络环境下是否依然适用,这需要根据网络环境的特征而分别进行具体的考量,而除了前述已经确立的言论自由之界限以外,还必须依据客观环境的发展去摸索、去确定新的更为适宜的“言论自由之界限”。在这一思路的基础上,笔者提出了关于网络环境下言论自由之界限的三点设想：第一,因应网络自身特性,理性正视法律功能；第二,合理使用技术手段,尊重用户个人选择；第三,鼓励公民主张权利,实行逐案利益权衡。
[Abstract]:Freedom of speech is a basic right of citizens. It is a basic right of constitution to protect individual self-expression, self-realization and self-determination. It is the cornerstone of democracy and rule of law. With the rise of the Internet, the network media has broken the limitation and monopoly position of the traditional media in the freedom of speech, and the freedom enjoyed by citizens in expressing their views and disseminating information has been expanded unprecedented. This has created conditions for further promoting the development of civilization and social progress. However, just as some people do not know what to do in front of the new network technology, many people are also at a loss in the face of the "unprecedented freedom" of the network. They begin to abuse the progress of the network technology and the convenience of information dissemination and disclose it on the Internet. To preach the privacy of others, to attack and violate the rights of others, and to interpret this abuse of technological progress and facilities for the dissemination of technology as true freedom, which is in fact an abuse of freedom, In violation of the principle that citizens shall not infringe upon the legal rights of others while exercising their personal rights. At the same time, what is more perplexed is the government that shoulders the responsibility of network governance. Examining the characteristics of the network environment from the point of view of state regulation, on the one hand, in the network environment, the various interests protected by the state are intertwined with each other and become increasingly complex; on the other hand, in the face of "having the network first," After that, there is "supervision", which can not be evaded by Internet supervision, and state power is irreversibly weakened. In the face of the reality that the conflicts of rights are more obvious or intense in the network environment, how to dispose the rights, weigh and choose becomes the key to solve the problem. At the same time, in the face of the disputes arising in the network environment and becoming more complicated by the special environment of the network, which is caused by various kinds of speech in many network environments, Neither a judge, an executive, nor a legislator can turn a blind eye to it. If so, in solving these problems, we will have to face the question: those established in the traditional environment of freedom of speech boundaries, in the network environment can still play its existing role? In other words, what is the boundary of freedom of speech in the network environment? The author believes that the boundary of freedom of speech established according to the characteristics of the traditional environment is still applicable in the network environment, which requires specific consideration according to the characteristics of the network environment. In addition to the previously established boundaries of freedom of speech, it is also necessary to explore the new and more appropriate boundaries of freedom of speech according to the development of the objective environment. On the basis of this idea, the author puts forward three ideas about the boundary of freedom of speech under the network environment: first, facing up to the legal function rationally according to the characteristics of the network, secondly, using the technical means rationally and respecting the individual choice of the user; Thirdly, citizens should be encouraged to claim their rights and weigh their interests on a case-by-case basis.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D90
本文编号：2241351
[Abstract]:Freedom of speech is a basic right of citizens. It is a basic right of constitution to protect individual self-expression, self-realization and self-determination. It is the cornerstone of democracy and rule of law. With the rise of the Internet, the network media has broken the limitation and monopoly position of the traditional media in the freedom of speech, and the freedom enjoyed by citizens in expressing their views and disseminating information has been expanded unprecedented. This has created conditions for further promoting the development of civilization and social progress. However, just as some people do not know what to do in front of the new network technology, many people are also at a loss in the face of the "unprecedented freedom" of the network. They begin to abuse the progress of the network technology and the convenience of information dissemination and disclose it on the Internet. To preach the privacy of others, to attack and violate the rights of others, and to interpret this abuse of technological progress and facilities for the dissemination of technology as true freedom, which is in fact an abuse of freedom, In violation of the principle that citizens shall not infringe upon the legal rights of others while exercising their personal rights. At the same time, what is more perplexed is the government that shoulders the responsibility of network governance. Examining the characteristics of the network environment from the point of view of state regulation, on the one hand, in the network environment, the various interests protected by the state are intertwined with each other and become increasingly complex; on the other hand, in the face of "having the network first," After that, there is "supervision", which can not be evaded by Internet supervision, and state power is irreversibly weakened. In the face of the reality that the conflicts of rights are more obvious or intense in the network environment, how to dispose the rights, weigh and choose becomes the key to solve the problem. At the same time, in the face of the disputes arising in the network environment and becoming more complicated by the special environment of the network, which is caused by various kinds of speech in many network environments, Neither a judge, an executive, nor a legislator can turn a blind eye to it. If so, in solving these problems, we will have to face the question: those established in the traditional environment of freedom of speech boundaries, in the network environment can still play its existing role? In other words, what is the boundary of freedom of speech in the network environment? The author believes that the boundary of freedom of speech established according to the characteristics of the traditional environment is still applicable in the network environment, which requires specific consideration according to the characteristics of the network environment. In addition to the previously established boundaries of freedom of speech, it is also necessary to explore the new and more appropriate boundaries of freedom of speech according to the development of the objective environment. On the basis of this idea, the author puts forward three ideas about the boundary of freedom of speech under the network environment: first, facing up to the legal function rationally according to the characteristics of the network, secondly, using the technical means rationally and respecting the individual choice of the user; Thirdly, citizens should be encouraged to claim their rights and weigh their interests on a case-by-case basis.
【学位授予单位】：山东大学
【学位级别】：硕士
【学位授予年份】：2010
【分类号】：D90
【引证文献】
相关期刊论文 前1条
1 魏玲;;浅论网络实名制与宪法言论自由[J];法制博览(中旬刊);2013年03期
相关硕士学位论文 前3条
1 刘常兴;网络“裸聊”行为的法律分析[D];吉林大学;2011年
2 吴湘定;论网络言论自由及其管理[D];华东政法大学;2011年
3 韩雪;网络言论自由的实现及其限制[D];中共中央党校;2012年
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