Grand confusion after Sanchez v. France: Seven reasons for concern about Strasbourg jurisprudence on intermediaries
| Published date | 01 June 2024 |
| DOI | http://doi.org/10.1177/1023263X241268436 |
| Author | Martin Husovec,Tatjana Grote,Yara Mazhar,Cham Mikhaeil,Harold Miñarro Escalona,Pragya Sinha Kumar,Sanjana Sreenath |
| Date | 01 June 2024 |
Grand confusion after Sanchez
v. France: Seven reasons for
concern about Strasbourg
jurisprudence on intermediaries
Martin Husovec* , Tatjana Grote**,
Yara Mazhar*, Cham Mikhaeil*,
Harold Miñarro Escalona*, Pragya Sinha Kumar*
and Sanjana Sreenath*
,1
Abstract
The latest Grand Chamber decision of the European Court of Human Rights in Sanchez v. France makes the
previous Delfitest 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 on the most basic questions. It is
argued that with Sanchez, the Strasbourg case law on liability for the speech of others online officially des-
cended into chaos without a proper senseof direction. Grand confusion about Sanchez now has the poten-
tial to threaten legal certainty introduced by EU law, as illustrated by its application in Zöchling 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
ECtHR, freedom of expression, online platforms, intermediaries, overblocking
*
LSE Law School, The London School of Economics and Political Science, London, UK
**
Essex Law School, Colchester, UK
Corresponding author:
Martin Husovec, LSE Law School, The London School of Economics and Political Science, London, UK.
Email: m.Husovec@lse.ac.uk
1. The authors are members of the LSE Intervention Clinic, who have authored (on apro-bono basis) an intervention for the
European Information Society Institute (EISi) that was submitted in Sanchez v. France to the European Court of Human
Rights under the supervision of Dr Husovec, who is Associate Professor of Law at London School of Economics and
Political Science (LSE). The authors would like to thank two anonymous peer-reviewers for their valuable feedback.
Article
Maastricht Journal of European and
Comparative Law
2024, Vol. 31(3) 385–411
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X241268436
maastrichtjournal.sagepub.com
1. Introduction
One of the central questions of the regulation of the Internet is who can be held responsible if some-
thing goes ‘wrong’online and how.
Imposing strict liability upon intermediaries who facilitate discussions would lead to strict
control of individual speakers and their expressions. Such editorial control is incompatible with
the idea of the Internet as a space that enables individuals to meet and discuss online without
seeking any permissions to publish. Not imposing any liability upon intermediaries, on the other
hand, submits potential victims to the mercy and whims of intermediaries over how they handle
such non-editorial speech.
For the European legal tradition, neither is acceptable because it either empowers the state or
private power too much at the expense of the fundamental rights of individuals. The ECtHR has
thus so far embraced the Internet as a new medium with speakers who do not have editors,
while also refusing to accept that victims of online abuse are left powerless.
2
Navigating the middle between the two extreme positions is proving increasingly difficult for
Strasbourg judges. After all, the heightened levels of hate and vitriol in society are most visible
online. Such developments cannot leave cold anyone conscious of the recent European history.
In addition, the societal debate increasingly favours quick, simple and radical measures instead
of slow, complex and limited responses.
However, we must be careful not to overreact by slowly undermining the very foundation of the
system we are trying to defend. Freedom of expression is not only a freedom for ‘good times’.If
such freedom cannot withstand the tides of extreme weather, it is not worth much as ‘one of the
essential foundations of [democratic] society’or ‘one of the basic conditions for its progress and
for the development of every man’.
3
This article is about one instance where we believe the Grand Chamber of the European Court of
Human Rights has got it wrong. Sanchez ruling offers a quick, simple and radical solution: hold
politicians liable, including in criminal law, for failing to remove hateful comments of others,
even if they did not incite or were not aware of them. Unfortunately, this solution is also very
easy to misuse against those who use their freedom of expression to fight hate by persuading, cam-
paigning or otherwise holding fearmongers to account. There are alternatives to Sanchez. One of
them, which is slower, more complex and limited but is less prone to abuse, is represented by
the model offered by the EU Digital Services Act, a law adopted several months before Sanchez
was handed down.
This article proceeds as follows. It first places the Sanchez v. France judgment into the perspec-
tive of the broader pre-existing case law and legislative landscape. Next, it analyses the key ele-
ments of the judgment, especially how it looks at the question of knowledge. Finally, we
articulate seven key concerns that follow from these developments.
2. Background
Long before the European Court of Human Rights was called upon to decide the first cases, the EU
legislatures adopted rules about when providers can be held liable for others.
2. M. Husovec, ‘Rising Above Liability: The Digital Services Act as a Blueprint for the Second Generation of Global
Internet Rules’,38Berkeley Technology Law Journal, available at http://dx.doi.org/10.2139/ssrn.4598426.
3. ECtHR, Handyside v. United Kingdom, Judgment of 7 December 1976, Application No. 5493/72, para. 49.
386 Maastricht Journal of European and Comparative Law 31(3)
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