| With the development of information technology,the way citizens communicate has undergone profound changes.Traditional means of communication such as letters,mail,telegrams,and short messages were gradually replaced by network communication.Emerging online chat tools,such as QQ,We Chat,Ding Talk,etc.,not only enrich the communication methods between citizens,but also change the demands of communication rights and obligations,breaking the "binary antagonism" between citizens and the state.Accordingly,network communication presents new characteristics that are different from the past,and the expression function is further amplified.Article 40 of our Constitution stipulates the right to freedom of communication and the right to confidentiality of correspondence(hereinafter collectively referred to as the right to correspondence)enjoyed by citizens,and the constitutional provisions constitute a strong protection of the right to communication in an absolute expression.Recently,the academic community has been discussing "whether the court has the right to access call records",and it has been found that the academic community generally places research on the protection of communication secrets,and believes that communication secrets are the privacy expectations of protecting the content of communication information.The author believes that the practice of discussing communication secrets alone cannot fully grasp the substantive meaning of communication rights in the network era,nor can it completely solve various problems that arise in practice.Therefore,the right to communication should be re-understood from the perspective of freedom of expression,which can not only bridge the gap between the law and reality,but also solve the constitutionality of relevant laws,and then guide judicial practice.As an information transmission field in cyberspace,communication has both instrumental value and independent value.In the Internet era,the construction of the right to communication on the basis of communication information is not in line with the original intention of strict protection by the Constitution,and the right to communication should be studied from the independent value of communication.According to this,freedom of communication refers to the freedom of citizens to use communication methods to communicate with the outside world at will and without unlawful obstruction,that is,the freedom to enter the communication process;Communication secrecy refers to the private state of the communication process,and prohibits the illegal intervention of any state organ,organization or individual,so as to provide a private and safe communication environment for citizens’ communication and expression.Second,freedom of communication is a prerequisite for secrecy in communication.If a citizen loses his freedom of communication,there can be no protection of the secret of correspondence.On the contrary,if citizens have freedom to communicate,the focus should be on protecting citizens’ trust interests in communication.Third,due to the "premise" of freedom of communication,if you set too strict a restriction method,it will inevitably lead to the "restriction of communication".Thus,freedom of communication could be based on a model of general legal reservations,allowing limitations on the right based on,for example,public interest considerations.Communication inspection is "outward-looking",which means that public authorities intervene in the communication process to break the privacy of communication.Combined with the provisions of the Constitution,there are no restrictions other than communications checks.Accordingly,restrictions on the secrecy of communications should follow the modalities of aggravating legal reservations.Finally,"no remedy has no right".As a fundamental right,States should also assume a duty to protect.Specifically,the state should establish a complete constitutional review system and improve the legal system for the right to communication,so as to provide remedies for infringement of rights. |
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