網(wǎng)絡(luò)環(huán)境下言論自由及其界限的法理探究
發(fā)布時(shí)間：2018-09-13 13:49
【摘要】： 言論自由是公民的一項(xiàng)基本權(quán)利,是憲法為了保護(hù)個(gè)人自我表現(xiàn)、自我實(shí)現(xiàn)和自我決斷的一種基本權(quán)利,是民主和法治的基石。隨著互聯(lián)網(wǎng)的興起,網(wǎng)絡(luò)媒體打破了傳統(tǒng)媒體在言論自由中的局限性和壟斷地位,公民在表達(dá)觀點(diǎn)和傳播信息方面享有的自由度得到了前所未有的擴(kuò)展,這為進(jìn)一步推動(dòng)文明發(fā)展和社會(huì)進(jìn)步創(chuàng)造了條件。但是,就像一部分人在網(wǎng)絡(luò)新技術(shù)面前不知所措一樣,許多人在網(wǎng)絡(luò)“空前的自由”面前也無(wú)所適從,開(kāi)始濫用網(wǎng)絡(luò)技術(shù)的進(jìn)步與信息傳播的便利,在網(wǎng)上披露、宣揚(yáng)他人的隱私,肆意攻擊侵犯他人的權(quán)利,并把這種對(duì)技術(shù)進(jìn)步與傳播便利的濫用,理解為真正的自由,這其實(shí)是自由的濫用,違背了公民在行使個(gè)人權(quán)利的同時(shí)不得侵犯他人合法權(quán)利的準(zhǔn)則。與此同時(shí),更加不知所措的正是肩負(fù)網(wǎng)絡(luò)治理之責(zé)任的政府。從國(guó)家監(jiān)管的角度來(lái)考察網(wǎng)絡(luò)環(huán)境的特征,一方面在網(wǎng)絡(luò)環(huán)境下,國(guó)家所保護(hù)的各種利益相互交織在一起,日趨復(fù)雜；另一方面,面對(duì)“先有網(wǎng)絡(luò),后有監(jiān)管”這一互聯(lián)網(wǎng)監(jiān)管無(wú)法回避的現(xiàn)實(shí)狀況,國(guó)家權(quán)力呈現(xiàn)出不可逆轉(zhuǎn)地“弱化”之特征。如是,面對(duì)網(wǎng)絡(luò)環(huán)境下各種權(quán)利沖突更加明顯或劇烈的現(xiàn)實(shí),如何進(jìn)行權(quán)利的配置、權(quán)衡與取舍就成為解決問(wèn)題的關(guān)鍵。與此同時(shí),面對(duì)在網(wǎng)絡(luò)環(huán)境中產(chǎn)生并因網(wǎng)絡(luò)這一特殊環(huán)境而變得愈加復(fù)雜的由眾多網(wǎng)絡(luò)環(huán)境中之各類(lèi)言論所引發(fā)的種種紛爭(zhēng),無(wú)論是司法者(法官)、執(zhí)法者(行政機(jī)關(guān))還是立法者都不能聽(tīng)之任之、熟視無(wú)睹。如是,在解決前述問(wèn)題的時(shí)候,我們又會(huì)不得不面臨這樣的問(wèn)題：傳統(tǒng)環(huán)境下所確立的那些言論自由的界限,在網(wǎng)絡(luò)環(huán)境下是否還依然能夠發(fā)揮既有的效用呢?或者說(shuō),網(wǎng)絡(luò)環(huán)境下言論自由的界限究竟是什么?筆者認(rèn)為,依據(jù)傳統(tǒng)環(huán)境之特征所確立的言論自由之界限在網(wǎng)絡(luò)環(huán)境下是否依然適用,這需要根據(jù)網(wǎng)絡(luò)環(huán)境的特征而分別進(jìn)行具體的考量,而除了前述已經(jīng)確立的言論自由之界限以外,還必須依據(jù)客觀環(huán)境的發(fā)展去摸索、去確定新的更為適宜的“言論自由之界限”。在這一思路的基礎(chǔ)上,筆者提出了關(guān)于網(wǎng)絡(luò)環(huán)境下言論自由之界限的三點(diǎn)設(shè)想：第一,因應(yīng)網(wǎng)絡(luò)自身特性,理性正視法律功能；第二,合理使用技術(shù)手段,尊重用戶(hù)個(gè)人選擇；第三,鼓勵(lì)公民主張權(quán)利,實(shí)行逐案利益權(quán)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.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2010
【分類(lèi)號(hào)】：D90
本文編號(hào)：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.
【學(xué)位授予單位】：山東大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2010
【分類(lèi)號(hào)】：D90
【引證文獻(xiàn)】
相關(guān)期刊論文 前1條
1 魏玲;;淺論網(wǎng)絡(luò)實(shí)名制與憲法言論自由[J];法制博覽(中旬刊);2013年03期
相關(guān)碩士學(xué)位論文 前3條
1 劉常興;網(wǎng)絡(luò)“裸聊”行為的法律分析[D];吉林大學(xué);2011年
2 吳湘定;論網(wǎng)絡(luò)言論自由及其管理[D];華東政法大學(xué);2011年
3 韓雪;網(wǎng)絡(luò)言論自由的實(shí)現(xiàn)及其限制[D];中共中央黨校;2012年
，本文編號(hào)：2241351
本文鏈接：http://sikaile.net/falvlunwen/fashilw/2241351.html
最近更新
教材專(zhuān)著
