This chapter formulates the research question and clarifies the critical methodological issues pertaining to the analysis. This is important because the book aims to bring together science and technology studies, sociological systems theory and jurisprudence The topic of the book is then introduced by giving an overview of all the chapters, making clear that a common thread runs throughout the book and that the argument addresses all of the theoretical, empirical and practical aspects of the research question posed at the beginning.

Chapter 6 reconstructs the technology-specific legal contours of freedom of expression in the Internet age, presenting empirical evidence of the growing importance of technology for legal practice and regulation. Since data-processing technology is a prerequisite for free speech, the starting point is privacy law. An important distinction is made between data integrity and network integrity and the discussion on net neutrality and the open Internet is revisited. The case law of the ECtHR on Article 10 ECHR is also examined to see if there is a tendency to recognise an independent ‘right to transmit’. Moreover, the activities of the Internet Corporation for Assigned Names and Numbers (ICANN) can be seen to produce technology-related standards relevant to the freedom of expression. ICANN, which is responsible for routing data packets to their destination, controls the ‘master key’ to the entire global Internet and can thus influence the conditions under which freedom of communication is possible. Finally, the chapter addresses the technical standards for the Internet developed by the independent Internet Architecture Board and the Internet Engineering Task Force, which are also crucial for the freedom of expression.

The Introduction provides an overview of trademark laws that implicate the right to freedom of expression. It also introduces the concept of inherently valuable expression in trademark law. Examples include descriptive trademarks; popular phrases and designs claimed as marks for T-shirts and other types of expressive merchandise; political and social messages; words, names, and symbols important to religious or indigenous communities; popular colors and shapes; and culturally significant creative works claimed as trademarks. The introduction also discusses the proposed free speech framework for trademark law. Government decision-makers should (1) identify the purpose of this specific trademark law and determine whether it is sufficiently important; (2) evaluate whether that particular trademark law directly and materially furthers its purpose; and (3) determine whether this trademark law endangers free speech, and ensure that it suppresses or chills protected expression no more than necessary in pursuit of that important purpose. The introduction concludes with an overview of trademark registration and enforcement laws that may potentially conflict with the free expression right.

Chapter 1 uses three examples of expression with substantial inherent value that should arguably not be registered as a trademark, or should only have a narrow scope of trademark protection regardless of whether it has acquired distinctiveness in an industry. The first example focuses on words that provide information about products. DC Comics and Marvel Characters have obtained trademark registrations for “Super Heroes” for comic books and other products that feature superhero characters, and “Super Hero” for masquerade costumes. The second example focuses on trademark rights claimed in popular terms or designs displayed on expressive merchandise. Lifeguard Licensing Corp. registered “Lifeguard” and a white Greek cross symbol (similar in shape to the red cross symbol) as a mark for T-shirts and other goods. The third example focuses on intrinsically decorative product features, such as three-dimensional shapes that represent things in nature. Globefill Inc. owns trademark registrations for a human-skull-shaped bottle for alcoholic beverages sold under the brand name “Crystal Head Vodka”, and a copyright registration and design patent for this sculpture.

The Conclusion provides an overview of the topics discussed throughout the book. First, it encourages governments to refuse to register expression with substantial inherent value or only provide a narrow scope of trademark protection to such marks. Then it reviews the free speech framework for trademark law, and the proposed reforms of trademark registration and enforcement laws discussed in Chapter 7. Finally, it discusses why these proposed reforms of trademark law are feasible. Many of the reforms proposed in this book are already included in current trademark laws or model trademark laws. Members of the International Trademark Association and other attorneys, academics, and commentators agree that the free expression right imposes some limits on trademark registration and enforcement laws. International obligations to protect trademarks in treaties and trade agreements do not prevent the United States, countries in Europe, and other members of the World Trade Organization from protecting the right to freedom of expression in trademark law. Governments also have obligations to protect this fundamental right in treaties and constitutions.

Chapter 3 provides details about the proposed free speech framework for trademark law. Legislators and courts should (1) identify the purpose of this specific trademark law – not the general purposes of trademark law, trademark theories, or a trademark’s functions – and determine whether it is sufficiently important (e.g., preventing misleading uses of trademarks, promoting fair competition, helping members of the public identify the source of goods or services, or discouraging the registration or use of hate speech); (2) evaluate whether that particular trademark law directly and materially furthers its purpose; and (3) determine whether this trademark law endangers free speech, and ensure that it suppresses or chills protected expression no more than necessary in pursuit of that important purpose. It is generally best to avoid constitutional analysis of trademark laws, so legislatures should consider making speech-protective and pro-competitive changes to problematic trademark statutes. In addition, courts and other government decision-makers should interpret provisions in trademark laws in a manner that protects expressive values and promotes the law’s important purpose(s).

Chapter 2 explains why the free expression right is relevant to laws regulating trademarks. Legislatures and courts agree that trademark laws can potentially conflict with this fundamental human right in constitutions, treaties, and statutes. Examples include the Recitals in the EU Trade Mark Regulation and Trade Mark Directive, the Court of Justice of the European Union’s Constantin Film case, and the US Supreme Court cases Matal v. Tam and Iancu v. Brunetti. This chapter also discusses the free speech theories relevant in the trademark context (such as the marketplace of ideas), why uses of trademarks are usually “expression” covered by the free expression right, and state action doctrine. With a focus on US free speech law, the chapter then discusses strict and intermediate constitutional scrutiny. It notes the analysis is different when laws regulate trademarks based on their viewpoint or content, and when the regulated speech is noncommercial or commercial, or fits into a category of expression that falls outside of the boundaries of the First Amendment. The chapter concludes with a discussion of William McGeveran’s four free speech goals for trademark law.

Thus far, we have largely considered technologies that are capable of changing persons’ mental states. However, today, a range of technologies are also being developed that can gain insight into the mental realms of others. One example is the measurement of brain activity, which has enabled researchers to make inferences about individual mental states and faculties. In particular, fMRI and EEG can measure brain activity in a way that allows for inferences about what a person remembers, recognises, thinks or feels. EEG has been used, for example, to identify concealed memories about a criminal offence; and fMRI has been used to reveal sexual orientation, political ideology or a person’s craving for cocaine. Recently, various research groups used neurotechnology together with emerging forms of artificial intelligence (AI) to decode mental content from brain activity, with some interesting first results. According to Brownsword, with the development of these kinds of “brain-reading” technologies, “researchers have a window into the brains and, possibly, into a deeper understanding of the mental lives of their participants”.

Expanding the horizons of constitutional practice further, this chapter shows how the meanings and implications of the Cambodian Constitution – and particularly the mandate it gives the state to protect Cambodian culture and tradition – have been shaped by artists, filmmakers, and performers. The chapter begins by introducing the reader to the Ministry of Culture’s ‘Code of Conduct for Artists and Performers’, which was introduced in 2016. Then, drawing on interviews with a number of artists from around Cambodia, as well as representatives from the Ministry of Culture, I suggest that the Code of Conduct represents a profound and widely shared anxiety about the meaning of modern Cambodian culture and national identity. In negotiating this fraught terrain, Cambodian artists explain how they have either directly challenged or avoided the regulations. In so doing, this disparate group has elaborated its own interpretation of the Constitution, and offered its own definition of the ideas of ‘national culture’ and ‘good traditions’ contained therein. The result is both a micro-level account of constitutional contestation and an exploration of how art, culture, and constitutionalism intertwine, as the artists in question effectively shape the meaning of the Constitution from below, and thus effectively become constitutional actors themselves.

The Human Rights Act requires courts to decide cases in conformity with the rights protected by the European Convention on Human Rights in so far as possible. Employees must bring a claim under UK employment law and then the rights, whether at common law or under statute, should conform to the Convention rights such as the right to respect for private life, freedom to manifest a religion, and freedom of expression.

This chapter examines the phenomenon of disinformation in the digital era and its implications for freedom of expression. It explores how the rapid dissemination of false, manipulated, and misleading information – termed a ‘disinfodemic’ – poses threats to human rights, democracy, and public trust. The chapter outlines the historical roots of disinformation, the technological factors that enable it, and the responses by public and private actors to mitigate its harmful effects. The chapter differentiates between disinformation (intentional), misinformation (unintentional), and malinformation (genuine information used to harm), while highlighting their diverse forms, such as fake news, deepfakes, and conspiracy theories. Disinformation erodes public trust, affects electoral integrity, threatens public health, and harms individuals’ rights to information and privacy. The chapter emphasises the necessity of finding a balance between combating disinformation and preserving freedom of expression.

The rise of microtargeted online disinformation (MOD) has raised concerns over its harms to democracy and human rights. Debates over the regulation of MOD crystallise around Article 10 of the European Convention on Human Rights, the right to freedom of expression, and its limited capacity to regulate disinformation. As the chapter demonstrates, the effects of disinformation are compounded by microtargeting techniques. These facilitate the surgical spread of information to homogeneous groups, based on the analysis of people’s personal data. The chapter contends that human rights protection has shifted from human rights law to other legal regimes. They centre on the protection of personal data, the regulation of online platforms and search engines and the technological systems that propel them, and the use of targeted political advertising. The chapter demonstrates this claim with reference to selected European Union legal instruments, discussing their capacity to address the harmful effects of MOD. It will be argued that the broadening of human rights protection beyond human rights law should be welcomed, but it also has significant limitations, including enforcement gaps and wide-ranging scope for exemptions.

This chapter analyses the evolving role of states in safeguarding freedom of expression within the digital environment, particularly on social media platforms. It highlights how states have both negative obligations (to avoid undue interference) and positive obligations (to actively protect and ensure the right to freedom of expression). The European Court of Human Rights and other international bodies emphasise that states must create a favourable environment for public debate, protect speakers from harm, and ensure media pluralism. These obligations extend to relations between private parties, including users and internet intermediaries. The chapter emphasises that freedom of expression in the digital age requires states to actively safeguard rights while balancing regulation and accountability. It warns against reliance on private platforms for enforcing speech limitations and underscores the importance of transparent, rights-based governance.

This chapter canvasses more than 400 decisions across some twenty IATs where references to international human rights instruments have appeared. Interestingly, it emerges that the vast majority of cases in which such instruments are cited concern three substantive areas: non-discrimination, due process rights and economic rights. The chapter therefore focusses on these three areas. It then reviews citations to human rights instruments in a variety of other substantive areas, including privacy rights, expression related rights, the right not to be arbitrarily deprived of nationality, and the right to just and favourable conditions of work. The chapter concludes that while IATs now regularly refer to international human rights instruments, their treatment of this body of law is inconsistent, ranging from some judgments refusing to acknowledge its direct applicability at all to other judgments considering it hierarchically superior to other sources of law.

Defending a particular vision of the freedom of expression rooted in its history and culture, the European Union has, in recent years, significantly increased its interventions in internet law. However, it has often refrained from taking a clear stance on the issue of the global or regional reach of its legal framework. This situation indirectly fosters a form of digital imperialism and provokes tension with many digital stakeholders who have adopted an American perspective on freedom of expression. Such a situation could potentially have disastrous consequences for the future of the internet. This chapter explores the causes of this conflict and suggests possible directions for solutions, highlighting the need to redefine the protection of online freedom of expression.

Fashion upcycling offers unprecedented opportunities for the sustainable reuse of clothing: using second-hand garments as raw materials for new creations, upcyclers can transform used pieces of clothing into new fashion products that may become even more sought-after than the source material. Considering the overarching policy objective to ensure a circular economy, the use of trademark-protected fashion elements for upcycling purpose can be qualified as a particularly important form of artistic expression. The reference to products of the original trademark owner is made for the socially valuable purpose of providing a vision of better, more sustainable production and consumption practices.