From Delfi to Sanchez – when can an online communication platform be responsible for third-party comments? An analysis of the practice of the ECtHR and some reflections on the Digital Services Act

Abstract

ABSTRACT While social media services offer a useful platform for obtaining information as well as presenting and commenting on opinions, people can still be silenced by fear of hate speech and insults on the Internet. As a result, the expanded freedom of expression can also reduce the range of opinions and information. This article identifies and analyses the conditions under which online communication platform administrators can be held liable for user-generated content. The focus is on the criteria laid down by the ECtHR in recent cases. The outcome is that liability is exceptional, arising mainly in cases of inciting hatred and violence. Although the Digital Services Act, with its notice-and-action mechanism, offers a cheaper, faster, and often more effective way of reducing insulting and defamatory speech than court proceedings, the impact of the mechanism on freedom of expression and freedom to conduct business must be considered.