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

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