Social Media, Fundamental Rights and Courts in Europe, by Evangelia Psychogiopoulou and Federica Casarosa

Social media has become the means of communication of our time: it is the means through which online users interact, express their opinions, get information and even find jobs. Social media has been mostly praised for its role in enhancing free speech and the freedom to exchange views and ideas by providing for a forum where users can discuss and debate issues of public interest. It has also been cherished for facilitating the exercise of a broader set of fundamental rights such as the right to freedom of assembly and association, the right to freedom of thought, conscience and religion, and economic, social and cultural rights, with the understanding that free speech is often a prerequisite for the enjoyment of such rights. The other side of the coin, however, is that social media can be exploited and abused, enabling the spread of harassment, hatred and incitement to violence on such grounds as gender, race and religion, to name just a few. Social media feeds illegal content, disinformation, and other harmful content and raises key challenges for data protection rights, personality and reputation rights.

Research carried out in the framework of COMPACT, a coordination and support action (CSA) that received funding from the EU’s Horizon 2020 program, explored, amongst other issues, judicial approaches to social media and convergence. COMPACT identified the social media jurisprudence of supreme, constitutional and appellate courts in a selected set of EU Member States, it explored judicial reasoning on social media and its specificities and examined patterns of interaction between national and European courts in relevant cases. Research sought in particular to probe the contribution of national judiciaries to the protection of free speech and its balance with other rights and interests in a social media setting.

Case law was gathered by national research teams from the following EU Member States: Bulgaria, Croatia, Greece, Italy, Latvia, Portugal, Slovakia and Slovenia. Our sample covered 147 higher court cases (from Bulgaria, Croatia, Greece, Italy, Latvia, Slovakia and Slovenia) for the period 1/1/2012 – 31/05/2018, and around 80 second instance court cases (from Bulgaria, Croatia, Greece, Latvia, Portugal, Slovakia and Slovenia) for the period 1/1/2012 – 31/12/2017. The identification of cases was based on a set of keywords related to social media and covered cases concerning social platforms such as Facebook, Twitter, YouTube, etc., but also cases on blogs, chat rooms online forums, and so on. The latter came within the scope of the study because they display similar characteristics to social media, in particular connective communication (i.e. communication with the main purpose of connecting and relating to other users), interactivity and creative participation through user-generated content. Other cases that were included in our study were cases concerning legacy media (i.e. the press, radio and television) operating online and news portals, insofar as relevant court decisions addressed and dealt with the similarities between social media and legacy media (or differences between them).

The majority of higher court cases stemmed from criminal branches of national supreme courts, with issues related to defamatory content, social media content as evidence in proceedings, hate speech and other illegal content as the main topics. Appellate court rulings similarly related to defamatory content, hate speech and other illegal content as well as cases concerning privacy and personal data protection and cases related to the use of social media in an employment context.

Not surprisingly, our findings show that the judicial treatment of social media cases has heavily drawn on the existing ‘generic’ legal framework. Many of the rules that domestic courts applied in social media cases were adopted well before the latter’s expansion. The fact that national (and European) legislators were slow (and perhaps for some time unwilling) to engage in legislative intervention has played a role here, leaving national judiciaries to deal with social media cases through the lenses of the existing (not social media-specific) legal framework. For instance, defamation rules in the countries under study were clearly used to capture defamation occurring through social media.

Bringing social media within the scope of the generic legal framework has resulted, on certain occasions, in the adaptation of past rule interpretations by the judiciary. A few cases in our sample indicate for instance changes in judicial reasoning and evolving standards as regards the responsibilities of legacy media, in particular audiovisual media, due to the changes brought to the media landscape by the advent of social media, amongst others. National courts have overall refrained, however, from bringing social media, blogs, chat rooms and so on, within the scope of existing rules concerning the press. This has emerged clearly from a set of cases by the Italian Supreme Court, which examined whether or not social media, blogs, chat rooms, etc., could qualify as ‘the press’. This would have allowed them to come within the scope of specific constitutional guarantees, namely the constitutional prohibition of seizure. According to the Italian jurisprudence, the online press could benefit from the constitutional guarantees that are applicable to the printed press, provided that it had the same structure and characteristics of the printed press. Only if social media could provide for the editorial control of the content on their services and demonstrate an organizational structure that is able to carry out editorial control could it fall within the concept of the press.

Other cases have provided insight into the challenges that may emerge when domestic rules, originally designed for legacy media, extend to the Internet without due consideration to the specificities and complexities of the online environment and social media. Latvian case law concerning domestic rules on pre-election political campaigning prohibitions is a clear example of this. Bringing the Internet within the scope of relevant rules on the prohibition on political campaigning through the media on the day of elections and the day before was argued to be a disproportionate restriction on freedom of expression as it would cover political communication through social media.    

Freedom of expression has in fact been central to judicial analysis in cases where the courts engaged in fundamental rights analysis. To illustrate, 83% of the higher court cases with a fundamental rights component had a free speech dimension. However, overall, our case sample shows that judicial reasoning on fundamental rights is rather limited. The percentage of higher court cases involving fundamental rights reasoning revolved around 15%. In cases with a fundamental rights component, constitutional provisions have been the backbone of judges’ reasoning (though often in mere reference). When courts have opted to address fundamental rights from the perspective of the European multi-level system of fundamental rights’ protection, judicial reasoning has been mostly guided by the European Convention on Human Rights (ECHR) and seminal rulings of the European Court of Human Rights. Free speech safeguards, laid down in the ECHR, alongside domestic constitutions, were interpreted with due attention to the new technological and communication context, making clear that fundamental rights sources are ‘living instruments’ that can be construed in the light of present day conditions.

Further avenues for research

The research carried out in the context of the COMPACT project has laid the groundwork for a book project that has just begun thanks to the collaboration of a wider network of emerging and established experts and scholars in the field of digital media. Research is currently undertaken to examine the social media-related jurisprudence of higher (supreme and constitutional) courts in another set of EU countries from between 2010-2020, as well as CJEU and ECtHR case law of relevance and importance to social media. This book project embraces two main themes: fundamental rights and judicial dialogue. First, it seeks to identify main issues and trends in European and national social media jurisprudence, specifically from the perspective of the protection of fundamental rights. Secondly, it explores the interaction of the national judge with European supranational courts and the contribution of the latter’s jurisprudence to national judicial reasoning and the judicial outcome of the cases reviewed. This second line of research is based on evidence from the COMPACT project that in social media cases, judges may benefit from judicial dialogue. This is not only due to the pace of technology’s evolution that may put the judiciary under strain. It is also related to the fact that social media and platform-specific regulation has thus far been rather limited overall. Judicial dialogue may thus be particularly useful in a field of law that is still developing.

Posted by Dr Evangelia Psychogiopoulou (Hellenic Foundation for European and Foreign Policy) and Dr Federica Casarosa (EUI)