Not hollowed by a Delphic frenzy: European intermediary liability from the perspective of a bad man: A response to Martin Husovec et al.

Abstract

This article proposes a revisionary interpretation of a decade of European Court of Human Rights (ECtHR) jurisprudence on online intermediary liability. This interpretation is produced by applying methodological insights from classical legal realist scholars including from Karl Llewellyn and Oliver Wendell Holmes. This article applies Holmes’s famous heuristic device of the ‘bad man’ to the context of intermediary liability at the Strasbourg Court. Holmes’s heuristic asserts: ‘if you want to know the law and nothing else’, you must look at it from the perspective of a ‘bad man’.

Construing the sophisticated online platform as the ‘bad man’ in this context, whose interpretation is concerned predominantly with minimising the risk of legal sanction, this article suggests an alternative reading of the case law. This interpretation shares premises and concerns with the interpretation articulated by Martin Husovec et al in a recent issue of the Maastricht Journal.  This article’s distinct mode of analysis, however, produces a very different conclusion than Husovec’s. 

On this account, Sanchez does not overturn Delfi or upend the Court’s prior case law on intermediary liability. Instead, in regard to its most fundamental issue, Sanchez confirms the Delfi judgement. Thus, contrary to Husovec’s view that the ECtHR is merely ‘at risk’ of colliding with EU law, this article proposes that the collision with EU law, in its most salient respect, had already occurred in 2015 with Delfi. If this interpretation is accepted, then it follows that Europe’s two highest courts have been in a state of ‘collision’ - espousing contradictory and irreconcilable doctrine - for almost a decade. 

The recognition that this collision is not ‘potential’ but has already occurred, and that its effects were largely invisible, ought to encourage reflection upon the efficacy of doctrinal analysis, particularly of the jurisprudence of the highest European courts, as a method for observing, let alone measuring, the actual downstream effects of major judgements like Delfi and Sanchez.

Keywords: Internet Law, Technology Law, Intermediary Liability, Platform Regulation, EU Law, European Union Law, European Court of Human Rights, ECHR, Legal Realism, Defamation Law, European Constitutionalism, Martin Husovec, Robert Spano, Oliver Wendell Holmes, Karl Llewellyn, Delfi v. Estonia, Sanchez v. France, E-Commerce Directive, Digital Services Act, DSA, Freedom of Expression, Free Speech