Rebalancing online speech regulation: a model-sensitive approach to judicial protection of end users in Europe

Abstract

Freedom of expression online is increasingly shaped by intermediary-based regulatory models that profoundly affect end users. Judicial scrutiny, however, increasingly focuses on intermediaries rather than the individuals whose speech is restricted. This article develops a model-sensitive analytical framework for assessing the intrusiveness of online speech regulation. It identifies five criteria of intrusiveness: timing of interference, character of expression monitoring, characteristics of the competent authority, breadth of interference with freedom of expression, and severity of sanctions. These criteria are applied to six regulatory models in the European legal space. This article then analyses Strasbourg and Luxembourg case law to evaluate the safeguards and anti-safeguards associated with these models. The findings reveal a structural disproportionality between regulatory intrusiveness and the level of judicial protection afforded to end users, both within and across regulatory models. We argue that both courts overlook several key risks and increasingly underemphasise the perspective of end users.