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FROM HARM TO OFFENSE: REFLECTIONS ON THE CONSTRUCTION OF SPEECH NORMS... not acceptable under the Enlightenment’s old canons of rationality. Freedom of expression is gaining new meaning, among others because harm means something different from what Mills considered to be harmful. Different rights, different harms, yet the very same words. Like many others of our generation, I have some arguments in favor of the old understanding of harm, but little does this matter. Each generation has an equal right to err. New communities and new terminology produce new norms. The dominant concepts of society change, often without any formal acceptance of these changes. These are much rather a matter of public sentiment instead, and sentiments are neither good, nor bad. They have an eroding effect (with erosion building up sand with the opportunity of constructing new sandcastles). The next generation will take these new meanings for granted. There is no guarantee that these new concepts will serve them better than adherence to old concepts and meanings. What matters from the socio-cultural perspective is acceptance. There can be better normative arguments within a culture, which indicate that the new concepts are inferior in underpinning an allegedly shared value, but that is secondary (even if relevant) from the point of view of social acceptance. When the better argument is too obviously superior, we will be told that the value underlying it is a false idol. It seems to me that the currently prevailing Western social sentiments influencing society, with formidable impact on freedom of expression, are based on the denial of individual responsibility. The individuals are not responsible for their actions and for what they represent. The person is the product, victim and lucky winner of their circumstances: individuals are victims (in a world where people are imagined either victims or privileged), they are harmed by the ‘structure’ of society and not responsible for their own acts. Agency does not matter. Security (ensured through mild despotism?) and respect without merit are prioritized. The CJEU invention of a ‘right to be forgotten’ is illustrative of the lack of interest in individual responsibility, even though what is to be deleted or made inaccessible is an official fact documenting one’s illicit act, available in an otherwise existing public record.“ But all this is of no consequence: it appears, it was in line with prevailing public sentiment. Instead, as Lord Devlin famously stated: “What is important is not the quality of the creed but the strength of the belief in it." 3 Alexis de Tocqueville, Democracy in America, Chicago, IL, University of Chicago Press, 2002, 663. * Google Spain SL and Google Inc. v Agencia Espanola de Proteccion de Datos (AEPD) and Mario Costeja Gonzalez. CJEU (Grand Chamber), 13 May 2014. The CJEU failed to look at the speech aspects ofthe matter (simply disregarding the views ofthe AG) and therefore the judgment is not only absurd in its consequences but also technically imperfect as a matter of proportionality analysis. 5 Patrick Devlin, The Enforcement of Morals, London, New York, NY, OUP, 1965, 114. * 335 ¢
