Social media before domestic courts in Europe: An analysis of free speech cases

Abstract

Social media arose as a way to communicate with friends, but it evolved to become a significant medium through which individuals exercise their right to free speech. At the same time, social media has raised a variety of challenges for fundamental rights. Whereas national and supranational legislators play a key role in terms of governing social media, court decisions are a test-bed for the protection of fundamental rights in a social media context. This article seeks to shed light on the social media jurisprudence of constitutional and supreme courts in a selected set of EU Member States. It examines in particular the contribution of national judiciaries to the protection of freedom of expression online and its balancing with other rights and interests in a social media setting. The focus is on cases that concern political speech, cases that examine the application of safeguards for the press on social media, and cases that reflect upon the impact of social media on legacy media regulation, that is, regulation for the mass media from the pre-digital age. The analysis identifies key trends in domestic judicial reasoning and shows the importance of fundamental rights as an interpretative tool for judicial decision-making on social media standards.