Grand Confusion After Sanchez v. France: Seven Reasons for Concern about Strasbourg Jurisprudence on Intermediaries

Maastricht Journal of European and Comparative Law (Forthcoming)

LSE Legal Studies Working Paper No. 8/2024

33 Pages Posted: 25 Jun 2024

See all articles by Martin Husovec

Martin Husovec

London School of Economics - Law School

Tatjana Grote

University of Essex - School of Law

Yara Mazhar

Independent

Cham Mikhaeil

Independent

Harold Miñarro Escalona

Independent

Pragya Sinha Kumar

Independent

Sanjana Sreenath

Independent

Date Written: June 21, 2024

Abstract

The latest Grand Chamber decision of the European Court of Human Rights in Sanchez v France makes the previous Delfi test absolutely unpredictable. This article explains why the uncertainty now concerns almost every single aspect of this test, and why case law hardly offers any guidance. It is argued that with Sanchez, the Strasbourg case law on liability for the speech of others online officially descended into chaos without a proper sense of direction. Grand confusion about Sanchez now has the potential to threaten legal certainty introduced by EU law, as illustrated by its application in Zochling v Austria. Despite the Court's proclaimed deference to national law and increased use of the subsidiarity principle, it is striking that democratically adopted European legislation about digital services has been ignored for so long in Strasbourg. Sanchez now raises a serious prospect that the ECtHR is on a collision course with the EU's newly adopted legislation, the Digital Services Act, that builds on the last 20 years of rules.

Keywords: intermediaries, freedom of expression, Digital Services Act, Sanchez, Delfi, platforms, over-blocking, hate speech, political speech

Suggested Citation

Husovec, Martin and Grote, Tatjana and Mazhar, Yara and Mikhaeil, Cham and Escalona, Harold Miñarro and Sinha Kumar, Pragya and Sreenath, Sanjana, Grand Confusion After Sanchez v. France: Seven Reasons for Concern about Strasbourg Jurisprudence on Intermediaries (June 21, 2024). Maastricht Journal of European and Comparative Law (Forthcoming), LSE Legal Studies Working Paper No. 8/2024, Available at SSRN: https://ssrn.com/abstract=4876062 or http://dx.doi.org/10.2139/ssrn.4876062

Martin Husovec (Contact Author)

London School of Economics - Law School ( email )

Houghton Street
London WC2A 2AE, WC2A 2AE
United Kingdom

Tatjana Grote

University of Essex - School of Law ( email )

Colchester, Essex CO43SQ
United Kingdom

Yara Mazhar

Independent ( email )

Cham Mikhaeil

Independent ( email )

Pragya Sinha Kumar

Independent ( email )

Sanjana Sreenath

Independent ( email )

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