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 applies Oliver Wendell Holmes's heuristic device of the ‘bad man’ to the context of ECtHR intermediary liability jurisprudence. Holmes asserts: ‘if you want to know the law and nothing else’, you must look at it from the perspective of a ‘bad man’. In a June 2024 Issue of the Maastricht Journal, Martin Husovec et al. claim that this ECtHR jurisprudence has ‘officially descended into chaos’ since the 2023 judgment of Sanchez v. France. According to Husovec, Sanchez upended the Court's prior case law and overturned the landmark precedent of Delfi v. Estonia. This article produces a different conclusion. This conclusion is as follows: Sanchez does not overturn Delfi. Instead, Sanchez confirms Delfi. Thus, contrary to Husovec's view that the ECtHR is ‘at risk’ of colliding with EU law, this article proposes that the collision has already occurred, and that Europe's two highest courts have been in a state of ‘collision’ – espousing irreconcilable doctrine – for almost a decade. The fact that this collision has been invisible to scholarship, the article concludes, ought to encourage reflection upon the efficacy of doctrinal analysis of the highest European courts as a method for observing the actual downstream effects of major judgments like Delfi and Sanchez.