UCE and Freedom of Expression

From the European Convention on Human Rights:-

ARTICLE 8

1. Everyone has the right to respect for his private and family life, his home and his correspondence.
    
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

ARTICLE 9

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
    
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.

ARTICLE 10

1. Everyone has the right to freedom of expression. this right shall include freedom to hold opinions and to receive and impart information an ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
    
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
    

The foregoing can be compared to the Constitution of the United States of America and the First Amendment thereto:-

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This constrains what the state can and cannot do, but it does not directly apply to the private sector. Nor does it afford unlimited protection to commercial speech:-

"Nothing in the Constitution compels us to listen to or view any unwanted communication, whatever its merit. The ancient concept that 'a man's home is his castle' into which 'not even the king may enter' has lost none of its vitality. We therefore categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another. If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even 'good' ideas on an unwilling recipient. That we are often 'captives' outside the sanctuary of the home and subject to objectionable speech and other sound does not mean we must be captives everywhere. The asserted right of a mailer, we repeat, stops at the outer boundary of every person's domain."

Chief Justice Burger, U.S. Supreme Court
ROWAN v. U. S. POST OFFICE DEPT.,
397 U.S. 728 May 4, 1970.

This has since been confirmed by other courts in the United States in relation to UCE:-

"In sum, we find that since AOL is not a state actor and there has been no state action by AOL's activities under any of the three tests for state action enunciated by our Court of Appeals in Mark, Cyber has no right under the First Amendment to the United States Constitution to send unsolicited e-mail....."

Cyber Promotions Inc. vs America Online Inc., 96-2486, November 4, 1996.

"Defendants' intentional use of plaintiff's proprietary computer equipment exceeds plaintiff's consent and, indeed, continued after repeated demands that defendants cease. Such use is an actionable trespass to plaintiff's chattel. The First Amendment to the United States Constitution provides no defense for such conduct."

CompuServe Incorporated v. Cyber Promotions, Inc. and Sanford Wallace, C2-96-1070, February 3, 1997.

"Recent cases have held that there is no First Amendment right to send bulk e-mail"

Cyber Promotions Inc. vs Apex Global Information Systems Inc., 97-5931