ABSTRACT
This chapter addresses questions regarding the judicial balancing of competing rights and values online. It introduces the conceptual framework of judicial balancing in the digital age, providing the necessary definitions, and explores the nature of judicial framing and its importance for understanding why judicial balancing that involves the same rights can lead to different results. The chapter explores the polynomial components of the “balancing equation” that courts must solve in the digital age: namely, the various conflicting human rights as well as public and private interests that courts attempt to reconcile. The chapter concludes with an examination of several case studies, underlining the differences in the approaches of the Court of Justice of the European Union, the European Court of Human Rights, and the US Supreme Court. The trend in internet development is a “shift towards mass participation in content creation”, extending participation and fostering novel means with regard to the exchange of knowledge.
