Draft paper

Please do not quote

European Judicial Dialogue and the Protection of Fundamental Rights in the New Digital
Environment

The Case of Freedom of Speech


Oreste Pollicino*




1.More than an introduction: a methodological declaration of intents

The aim of the paper is to answer to the following research questions:
1)how is it possible to reconcile the academic studies on Internet law with the broader debate
related to the multilevel protection of fundamental rights in Europe and to the judicial interaction
between autonomous but interconnected legal orders, with special emphasis to the horizontal
judicial conversation between Luxembourg and Strasbourg Courts?
2) why is such an attempt expected to have a valuable impact for a better understanding of the
process of European integration, with particular regard to the scholarship which focus on European
judicial dialogue?
In order to answer the why question, it should be recalled that even today scholars are faced
with the debate over governance of the Internet and, in many cases, with the issue of Internet
jurisdiction.The coming of the Internet, in fact, has brought along a number of legal issues related to
the scope of application of the existing domestic regulations and to the enforcement of judgments
delivered by domestic courts. In this respect, courts have developed various approaches, which have
resulted in rulings attempting to determine (and sometimes to extend) the scope of domestic
jurisdiction. Not only the prescriptive jurisdiction (i.e. the power to establish legal provisions), but
also the enforcement jurisdiction (i.e. the power of a court to adjudicate a case and get the
enforcement of the relevant decision) were concerned by this debate
Having said that, the time is ripe to try to bridge the gap between the approach of Internet
lawyers and that of constitutional and European studies concerning judicial dialogue in a multilevel
legal scenario. More precisely, it is clearly emerging from the ongoing relevant debate that the topic
related to the protection of fundamental rights in Internet and judicial enforcement of those rights
goes far beyond what are considered the natural borders of the scope of application of Internet law,
touching indeed crucial issues at the heart of EU Law, human rights law and European
constitutional law.
In light of these assumptions, the main purpose of the paper is to emancipate the debate
concerning the law and jurisprudence of the Internet from the dominant position occupied, in the
said debate, by technicians, technocrats, informatics and intellectual property lawyers. Such an
emancipation aims to inject into the topic under investigation a European and a constitutional
souls and to reconcile the analysis of the relationship between new technologies and fundamental
rights with the theoretical debate related to the process of European integration, with particular
emphasis on the so called European judicial dialogue.
The next question spontaneously arises. It is the how question: which is the best
methodological tool to achieve such objectives? In my opinion the best way to reach the proposed
research aims is to explore these issues from the perspective of the interaction taking place between
interconnected legal systems in the form of judicial dialogue as generally developed in previous
works
1

In order to justify the choice of the perspective of judicial dialogue as the most appropriate
methodology for illustrating the fundamental rights based dimension of Internet law, it is important
to let emerge the autonomous relevance of the two sides of the same coin, where the coin is the
combined approach, above mentioned, between Internet law on the one hand and studies on
judicial dialogue on the other hand. More precisely, it necessary, in this methodological
introduction, to elaborate further, on the one hand, why (first side of the coin) a judicial dialogue
based approach would be an added and innovative value for Internet law studies and on the other
hand why, on the other hand (second side of the coin), looking at European judicial interaction
through the substantial parameter of Internet law (and protection of fundamental rights in the digital
environment) would be an advantage for the research area related to judicial dialogue.
With regard to the first side of the coin, it should be clarified that the judicial involvement of
national and European Courts in what is called judicial dialogue is very often a reaction, and very
rarely a spontaneous action, to a collision (or to risk of it) between the European legal systems with
regard to the identification of the most suitable level of an effective protection of the fundamental
rights at stake.
Now, if this true that today, more than ever, the courts are the institutions which, in their
respective legal orders, occupy a privileged position to identify a risk of potential collision with
regard to the effective protection of fundamental rights between interconnected legal regimes and
consequently to forge closer ties between different but interacting systems, the crucial position of
the Courts (and of judicial dialogue) in times of judicial globalisation is even more amplified with
regard to the protection of fundamental rights in the digital age.
This is due to two peculiarities of the Internet.
The first peculiarity has a substantial nature and deals with the awareness that legal reforms
tend to lag behind technological advances, and the burden to compensate this legislative forced
inertia is heavily on the shoulders of the judicatures. Even more interesting from our perspective,
the novelty of the factual and legal context which Internet let emerge is the main reason, together to
the inertia of the legislative powers at national and supranational levels, why Courts in the field of
protection of fundamental rights in Internet seek, even more than in analogical world, assistance,
inspiration (and at the end of the day, dialogue) with Courts of different but interconnected legal
orders.
The second reason at the basis of the choice to focus on courts interaction has a procedural
character and is connected to the jurisdictional issues brought by the rise of the Web, that resulted,
as it will be said in the first part of the paper, in crucial implications for the protection of
fundamental rights and in a further amplification of the judicial moment in the field.
Against this background, it should be added that the law of the Internet has been the subject of
very specific and technical studies, especially by U.S. scholars who for a long time have questioned
(i) whether the Web could be subject to legal regulation and (ii) which entity had the power to
establish such a regulation.
The problem is that, particularly in Europe, this debate has been almost monopolized by Internet
and IT lawyers who have explored the field from a very specific perspective focusing, mainly, on

1
O. Pollicino, G. Martinico, The Interaction between Europe's Legal Systems: Judicial Dialogue and the Creation of
Supranational Laws 2012, Edward Elgar Publishing, Cheltenham (UK) || Camberley (UK) || Northampton (USA), 350.

the relationship between law and technology. In other words, the peculiarities of the topic have
made it very fascinating for a specialist group of Internet lawyers and much less attractive for the
scholars interested in the multilevel protection of fundamental rights from a European constitutional
perspective. This is a natural consequence of the fact that the Internet constitutes an innovation, first
of all, from the technical point of view.
With regard to the second side of the coin, there is at least one good reason why at European
judicial interaction through the substantial parameter of Internet law (and protection of fundamental
rights in the digital environment) it is considered to be an advantage for the research area related to
judicial dialogue.
It is true that relationships between courts have become, especially in the last decades, one of
the areas where many scholars focused their studies, particularly in the field of constitutional and
European law. This approach resulted in a number of debates concerning the relationships
developed between, especially, European courts (Court of Justice of European Union - hereafter
CJEU and European Court of Human Rights, hereafter ECtHR)and national courts .
However, attention was mainly paid to the reasons, the effects and the functioning of such
interaction, with just a few cases facing the "content" or the subject of the same. Decisions of
courts were mainly considered, indeed, not because of the added value brought in terms of higher
protection of certain rights, but primarily for their importance in the relationships with other courts
and, more generally, with regard to the judicial interaction between interconnected legal orders.
The choice to focus on a substantial issue as the protection of freedom of speech in internet will
hopefully help to inject in the field of judicial dialogue scholarship, some concreteness,
substance, and univocal direction, whose lack, together with the often too vague and general
theorization of its specific features, has been identified, not wrongly, as the Achilles heel of the
studies related to judicial dialogue.
With regard to the structure of the paper the first part will emphasize how, in the US legal
experience, has been interpreted, in the analogic and digital scenario, the provision of First
Amendment related to the protection of free speech. In the central part of paper will be questioned
how, in comparison also to the US experience, the changing of the technology factor impacts on the
judicial protection of free speech afforded by the two European Courts.
In the conclusive remarks it will be seen if there is direct, indirect cooperation or a reciprocal
influence or any form of judicial dialogue between Luxembourg and Strasbourg Courts with regard
the protection of freedom of speech in internet.
One may object that the study should nevertheless be limited to the European context, because
it is mainly focused on the notion of European judicial dialogue.
There at least two different reasons for a comparative approach whose scope of application is
broader than European borders:
First of all the rise of the Internet as pointed out above- has established a link between these
different views, making it is nowadays easier to cross national borders. It becomes therefore crucial
to look at the possible conceptions of freedom of expression that on the Internet confront each
other. Among those conceptions, the one encapsulated in the First Amendment of the US
constitution represent a crucial parameter of comparison.
The second reason why adopting a comparative perspective is essential is that the coming of the
Internet has exacerbated and over-amplified some problems of jurisdiction that even in the past
were familiar to scholars studying freedom of speech, but at a lower degree.
More than others Yahoo! v Licra has been referred to as one of the leading cases in this respect.
Two French anti-racist organisations went before the Court of Paris and obtained an order
imposing Yahoo! to disconnect a website for the sale of Nazi memorabilia hosted by its platform in
France, where the Penal Code prohibited the marketing of such products.
The French Tribunal ruled in favour of the petitioners since the offending material was accessed
(also) in France and, accordingly, the harm was felt there.
2

Then, before the Northern District of California,
3
Yahoo! sought a declaratory judgment that the
French Tribunal lacked jurisdiction. Yahoo!s argument was that the court order violated the First
Amendment and was even unenforceable.
The US court found that the order issued by the Tribunal conflicted with the First Amendment
of the U.S. Constitution. However, the Ninth Circuit of Appeals
4
reversed the decision, finding that
France was within its rights as a sovereign nation to enact hate speech laws against the distribution
of Nazi propaganda. And, accordingly, the petitioners were within their rights to bring suit in
France against Yahoo! for violation of French speech law.
The case has shown that a difference in the degree to which the same fundamental right is
protected can result in conflicts between jurisdictions and problems of enforcement. Different
approaches to freedom of speech, as well as to other fundamental rights such as public order, result,
at the final step, in problems of in enforcement of judgments issued by foreign courts.
5



2.Freedom of Speech in the US and its protection off-line and on-line: a critical
assessment

The First Amendment to the US Constitution affords to freedom of speech a very extensive
protection:

Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government for a redress of grievances.

This provision imposes a prohibition to the Congress from adopting any law which may amount
to a restriction of freedom of speech. As pointed out in the previous paragraph, the Supreme Court
has clarified that the ban extends even to states and, therefore, to the respective governments.
It is worth noting that there is no mention, in the text of the First Amendment, of possible
limitations based on the protection of other fundamental rights that may enter into a balance with
freedom of expression. Then, the First Amendment seems to protect free speech as an absolute that
shall not tolerate any restrictions nor interferences.
6

A picture describing the US approach to free speech can be obtained by applying these
principles to some specific areas of law: i.e., defamation, hate speech and sexually explicit speech.
7

Only once these principles have been observed in action it becomes possible to understand how
the use the Internet has affected traditional categories and doctrine of law.

2
UEJF et LICRA v. Yahoo ! Inc. Et Yahoo ! France, Tribunal de Grande Instance de Paris, 22 May 2000.
3
Yahoo!, Inc. v La Ligue Contre le Racisme et L'Antisemitisme, 169 F. Supp. 2d 1182 (N.D. Cal. 2001).
4
433 F.3d 1199, Yahoo! Inc., a Delaware Corporation, v La Ligue Contre Le Racisme et L'antisemitisme, a
French Association; L'union Des Etudiants Juifs De France, a French Association (9th Cir., 2006).
5
See more on Reidenberg, J., Yahoo and Democracy on the Internet, 42 Jurimetrics,261 (2002).
6
The reasons why in 1791 such an extensive protection was granted to free speech deal with, at first glance,
the historical background of the settlement of the United States. Since some of the states had refused to sign
the US Constitution in the absence of appropriate guarantees of civil liberties, the Bill of Rights entered into
force. The First Amendment, in particular, was supposed to meet the Anti-Federalist states expectation of
freedom to express (political, first of all) opinions. Then, the right in question was meant to be, at least in its
original consideration, a freedom from any undue interference from public bodies in the enjoyment of the
free speech. Then, a provision intended to produce vertical effects.
7
See in this respect Ronsenfeld, M., Sajo, A., Spreading Liberal Constitutionalism: An Inquiry into the Fate
of Free Speech in New Democracies in Choudhry, S. (ed.), The Migration of Constitutional Ideas
(Cambridge University Press, Cambridge 2006), 146.
As far as defamation law is concerned, the decision taken in New York Times v Sullivan
8
ranks
among the leading cases on the matter. It was at stake whether the use of false or defamatory
statements by the press against public figures was protected by freedom of expression. The
Supreme Court pointed out that the statements made with actual malice or reckless disregard are
beyond of protection of freedom of speech (more precisely, of the freedom of press) and can
therefore trigger a liability for the author of the same. Otherwise, where these criteria are not met,
no limit can be imposed over the public debate. Behind this standard is the assumption that no
advancement in the public opinion can be reached through the diffusion of false statements.
Among others, also the judgment rendered in Calder v Jones
9
has to be mentioned. The
Supreme Court herein applied the minimum contact test
10
to assert that the court of California
(where the plaintiff resided) could hear a defamation compliant against a national magazine that
was edited in Florida. The court of the state where the plaintiff resided was found to have personal
jurisdiction over the defendants, who had certain minimum contacts with the forum state.
The minimum contact test has played a significant role even in Internet cases, where problems
of jurisdiction have proved to be crucial.
The area of law that more than the others brings to light the wide margin of protection
guaranteed to freedom of expression in the US lies with hate speech.
11
We cannot refer the entire
case law that in the US has developed in this respect. However, the common denominator of three
leading cases concerning racial and religious hatred
12
is that only those expressions that are likely to
result in an incitement to violence are beyond the constitutional protection granted under the First
Amendment. The adoption of this standard led US courts to tolerate conducts that as will be
explored below- would have been in all likelihood prohibited under the corresponding European
provisions. So doing, the Supreme Court has fixed a very high threshold for punishing hate speech:
an incitement to hatred does not suffice; instead, only an incitement to violence justifies the
restriction of freedom of expression.
Also with respect to sexually explicit contents and violent contents, the approach of US courts is
consistent with the purpose of granting extensive protection to freedom of speech.
In Miller v California,
13
the Supreme Court established a three-prong test to define content as
obscene: a work goes beyond the scope of protection of free speech and can therefore be regulated
where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently
offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a
whole, does not have serious literary, artistic, political, or scientific value. But another landmark
decision, New York v Ferber, excluded child pornography from enjoying free speech protection.
14

A very recent judgment concerned a California statute that had made it a criminal offense the
sale to anyone under the age of 18 of video games portraying killing, maiming, dismembering or
sexually assaulting an image of a human being. The Supreme Court in Brown v. EMA
15
struck down
the law, finding that video games qualify for the First Amendment protection like film, music and
the other forms of literary or artistic expression. In this decision, the Supreme Court focused on a

8
New York Times v Sullivan, 376 U.S. 254 (1964).
9
Calder v Jones, 465 U.S. 783 (1984).
10
The minimum contact doctrine was developed by the Supreme Court the first time in International Shoe
Co. v. Washington, 326 U.S. 310. The purpose of this US doctrine is to determine the conditions upon which
a state court does have personal jurisdiction over a defendant that may be established in another state.
11
For a more in-depth analysis of hate speech and its relationship with freedom of expression we refer to the
chapter of Gillespie, A., Hate and Harm: The Law on Hate Speech in this book.
12
See Brandeburg v Ohio, 343 U.S. 250 (1969), R.A.V. v City of St. Paul, 505 U.S. 377 (1992) and Virginia
v Black, 538 U.S. 343 (2003).
13
Miller v California, 413 U.S. 15 (1973). See also Roth v. United States, 354 U.S. 476 (1957); Ginsberg v
New York, 390 U.S. 629 (1968).
14
New York v Ferber, 458 U.S. 747 (1982).
15
Brown v Entertainment Merchants Association et al., 564 U.S. 1 (2011).
crucial aspect: the degree of protection of freedom of speech does not vary depending upon the
medium and legislation cannot create categories of unprotected speech, even not for the purpose of
minors protection.
This quick exploration of the landmark categories of US courts decisions will allow to approach
the impact of the coming of the Internet. First, looking at the US scenario, where first the Internet
has grown. Second, having regard to the European perspective that is the specific goal of this
study- in order to represent the implications (even in terms of jurisdictions) raised by the new
technologies.
In order to answer the question as to whether the coming of the Internet has, in the US legal
system, further extended the scope of freedom of expression as protected in world of atoms, a few
cases should be examined after the foregoing remarks.
The most important decision of the US Supreme Court, which is nowadays regarded as a
landmark ruling for Internet freedom of expression, is Reno v ACLU.
16

The Supreme Court found unconstitutional the provisions contained in the Communication
Decency Act, which criminalized the online distribution of obscene or indecent materials to any
person under 18. In the Supreme Courts view, the CDA posed too vague restrictions and lacked of
the precision required to limit free speech only to the extent necessary for minors protection, in
particular by failing to properly define indecent and patently offensive contents.
It is worth noting that the decision took expressly into account the difference between the nature
of the Internet and that of other media such as radio and television:

radio and television, unlike the Internet, have, as a matter of history [] received the most
limited First Amendment protection, [] in large part because warnings could not
adequately protect the listener from unexpected program content. [] [On the Internet], the
risk of encountering indecent material by accident is remote because a series of affirmative
steps is required to access specific material.
17


Similar nuances characterized another attempt of the US Government to regulate protection of
minors online. In 1998, after the US Supreme Court had struck down the most relevant part of the
Communication Decency Act, the Child Online Protection Act came into force with analogue
purposes. Also this act was reviewed by the Supreme Court, that declared it to be contrary to the
First Amendment. Specifically, the COPA referred to material harmful to minors as any material
obscene or that, based on community standards, an average person would consider to appeal to the
prurient interest. Also this definition, according to the Supreme Court,
18
failed to meet the standards
required to circumscribe free speech limitations.
Another decision regarding the protection of freedom of speech on the Internet was taken in
Ashcroft v. Free Speech Coalition
19
. Concerning the last of the efforts to protect minors from
dissemination of explicit contents, the Child Pornography Prevention Act adopted in 1996, the
judgment found disproportionate and overbroad the restrictions introduced by this act to freedom of
expression. Most notably, the decision was focused on the provisions that prohibited, on one hand,
the diffusion of images that appeared to be minors engaged in sexual activity; on the other one, any
form of speech conveying the impressing that the images reproduced minors involved in sexual
conducts.
Free-speech activists complained that such regulation caused chilling effects. The Supreme
Court found that Congress has of course the power to pass laws with the aim of preventing child
pornography and circulation of obscene contents. However, since the provisions contained in the

16
Reno v American Civil Liberties Union, 521 U.S. 844 (1997).
17
521 U.S. 844, 868.
18
Ashcroft v American Civil Liberties Union, 535 U.S. 564 (2002).
19
Ashcroft v Free Speech Coalition, 535 U.S. 234 (2002).
CPPA went beyond such scope of admissibility the restriction to freedom of speech were overbroad
and in violation of the First Amendment.
All the foregoing suggests that the coming of the Internet, in the approach of the US courts, has
not weakened the protection afforded to freedom of expression, in spite of the possible threats to
other interests caused by its use. Rather, it seems that there has been an advancement in the
effectiveness of freedom of speech, in particular through a very strict scrutiny on the conditions that
may constitute legal grounds for the restriction of this fundamental right.
If in the non-digital environment courts proved to be suspicious with respect to any potential
restriction of free speech but admitted, upon certain conditions, that other interests could prevail,
after the coming of the Internet another path seems to have been undertaken. As the three cited
decisions concerning the publication of obscene contents online demonstrate, even in presence of
another primary constitutional interest, i.e. the protection of minors, limitations of freedom of
speech must be strictly proportionate to the aim pursued. In all these cases, in fact, the Supreme
Court never denied the nature of legal interest of the protection of minors from dissemination of
obscene contents, but always demanded that restrictions based on this equally protected interest did
not undermine freedom of expression at an excessive degree.
In conclusion, the picture drawn with respect to the US scenario proves that the coming of the
Internet has resulted in a further enhancement of the already huge protection enjoyed by freedom
of speech in the non-digital environment. The First Amendment, then, has not only retained, but
also increased its value in the new digital context.
As we will try to demonstrate in the next chapters, the conclusions seem to be opposite turning
the attention to Europe.

3.Freedom of Speech in Europe

The First Amendment to the US Constitution, as the previous paragraph has brought to light,
speaks about freedom of expression in very absolute terms.
20
US Courts decisions, in turn, have
confirmed this quite broad scope of protection, even when other fundamental rights were at stake.
This leads authors like Ronsenfeld and Sajo, referring to Bollinger,
21
to present free speech as the
paramount right within the American constellation of constitutional rights.
22

Against this background, the scenario is completely different in the European context, at least
for two reasons.
The first one is related to the degree of protection. The extent to which constitutional protection
is afforded to freedom of expression is lower in Europe, where there is no provision carving out a
sphere of protection as large as that provided by the First Amendment.
The second reason why the European scenario diverges so much lies with the absence of a
unique constitutional imprinting. While in the US the First Amendment is the sole and sacred
reference, the European model cannot be explained nor understood unless the system of the
European Union is combined with that of the European Convention on Human Rights and the
decisions of the respective courts are read in light of the reciprocal influence and the integration
between the relevant parameters.
The European approach to freedom of expression, the exercise of which shall be balanced with
the protection of other fundamental rights, clearly emerges from the relevant parameters that courts
(both the CJEU and the ECtHR) have been called upon to enforce.

20
See for a more in-depth comparative study, Schaurer, F., Freedom of Expression Adjudication in Europe
and America: A Case Study in Comparative Constitutional Architecture, in Nolte, G. (ed.), European and
US Constitutionalism (Cambridge University Press, Cambridge 2005), 49-69.
21
Bollinger, L., The Tolerant Society: Freedom of Speech and Extremist Speech in America, (Oxford
University Press, Oxford 1988), 7.
22
Ronsefeld and Sajo, supra n. 21, at 152.
In particular, since the European Union -at least in its origins - was intended to constitute an
economic community only, the very constitutional background has been represented by the system
of the European Convention on Human Rights and the ECtHR indeed.
Only in more recent times the European Union has acquired a new supranational dimension as a
non only economic community, even though the road to a very constitutional identity is still long.
Then, prior to the coming into force of the Treaty of Lisbon there was no express
acknowledgment of freedom of speech as fundamental right. It was through the incorporation of the
Charter of Fundamental Rights of the European Union within the primary law that freedom of
expression (under Article 11), among the others, has started to be regarded as a fundamental right of
the EU.
Article 10 of the ECHR and Article 11 of the Charter of Fundamental Rights of the European
Union are therefore the relevant parameters upon which protection of freedom of expression in
Europe relies.
The courts of respectively the EU and ECHR systems have interpreted these parameters and
delivered judgments that have clarified the scope of the protection afforded to free speech in
Europe. Basically, it has been first a task of the ECtHR to carry out a scrutiny of the concerned
contracting states legislation alleged to be in breach of Article 10 of the Convention.
A last case is worth to be mentioned: in Handyside
23
the Court rejected the complaint of an
editor who had been convicted for having published a schoolbook containing sexually explicit
contents. The Court found that the restrictions imposed in the case to freedom of expression,
including the seizure of the available copies of the book, met the criteria set forth under Article
10(2) of the Convention. However, what has to be remarked of this decision is an obiter dictum
where the Court stressed that

Freedom of expression constitutes one of the essential foundations of such a society, one of
the basic conditions for its progress and for the development of every man. Subject to
paragraph 2 of Article 10 (art. 10-2), it is applicable not only to "information" or "ideas" that
are favourably received or regarded as inoffensive or as a matter of indifference, but also to
those that offend, shock or disturb the State or any sector of the population. Such are the
demands of that pluralism, tolerance and broadmindedness without which there is no
"democratic society".

What about, then, the Court of Justice of the European Union?
We have noted, at the beginning of this paragraph, that only by the incorporation of the Charter
of Fundamental Rights of the European Union in the primary law of the European Union freedom
of expression, as well as other fundamental rights, has been provided with constitutional grounds
in the system of the EU law. This circumstance reflected in the approach of the CJEU, that has been
lacking for a long time of a parameter to enforce regarding freedom of speech. In fact, the scope of
the Luxembourg Courts scrutiny, carried out especially by the technique of the preliminary
proceedings, was limited to acts adopted within the EU competences in the economic sphere
(among others, the abovementioned E-Commerce Directive).
However the Court of Justice has in some cases, even if indirectly, acknowledged the nature of
freedom of expression as fundamental right. For instance, this happened in the Schmidberger case.
24

The Court was asked to determine whether the domestic legislation at stake was compatible with
the free movement of goods to the extent it permitted the temporary closure of a motorway for a
demonstration aimed at drawing attention of the public opinion to environmental issues. Then, the
proceedings aimed at determining whether the fundamental economic freedoms established in the

23
Handyside v United Kingdom App no 5493/72 (ECtHR, 7 December 1976).
24
CJEU [C-112/00], 12 June 2003, Eugen Schmidberger, Internationale Transporte und Planzge v
Republik sterreich
EU had been respected and the restrictions to the same were legitimate. The judgment expressly
referred to Article 10 of the Convention:

unlike other fundamental rights enshrined in that Convention, such as the right to life or
the prohibition of torture and inhuman or degrading treatment or punishment, which admit
of no restriction, neither the freedom of expression nor the freedom of assembly guaranteed
by the ECHR appears to be absolute but must be viewed in relation to its social purpose.
Consequently, the exercise of those rights may be restricted, provided that the restrictions in
fact correspond to objectives of general interest and do not, taking account of the aim of the
restrictions, constitute disproportionate and unacceptable interference, impairing the very
substance of the rights guaranteed.

However, taking into account the circumstances of the case, the Court said that various interests
had to be weighed and noted that an outright ban on the demonstration would have constituted
unacceptable interference with the fundamental rights of the demonstrators to gather and express
peacefully their opinion in public.

4. The impact of the internet on the protection of freedom of speech in Europe

4.1 The European Convention of Human Rights

In light of the approach developed by the European courts in the worlds of atoms, it is now
possible to analyse how the coming of the Internet has affected the judicial protection of freedom of
speech. As pointed out at the beginning of the essay, the purpose of the study is to bring to light
whether the new technological scenario resulted in a higher or lower degree of protection of free
speech. We have noted, in the previous paragraph, that US courts have maintained a very broad
protection, despite the freedom of communication is now more likely to enter into conflict with
other rights or interests.
Which was the impact of the Internet, instead, on the other side of the Ocean?
While the European Union has adopted a number of acts concerning the use of the Internet as
part of the movement of goods and services, including the E-Commerce Directive and the
Audiovisual Media Services Directive, and recently welcomed freedom of expression into its very
constitutional soil pursuant to Article 11 of the Charter, the relevant parameter for the Court of
Strasbourg has been represented so far by Article 10 of the Convention.
At the outset, we have to note that the flexible approach of the Strasbourg Court in respect to
the possible limitations to freedom of expression does not constitute, of course, something new. The
cases handled by the ECtHR prior to the development of the new technologies, some of which have
been overviewed in the previous paragraphs, prove that Strasbourgs judges were already well
inclined to enforce Article 10(2) of the Convention. However, if we analyze the most recent
decisions taken by the Court, it appears that the coming of the Internet in contrast to the trend of
the US Supreme Court- has further extended the possibility to limit freedom of expression, once the
conditions set forth under Article 10(2) are met by the national legislation.
The assumption that freedom of speech works as a watchdog of democracy appears to be
revisited, since the Court has paid attention more to the cases where the Internet was likely to pose
new risks to the protection of fundamental rights and where restrictions were then found justified-
than to those in which the Internet appeared as a new opportunity for the enjoyment of the same
and when, therefore, free speech was to be preserved.
Even though the Court repeatedly held that the safe harbors entrusted to Article 10(2) must be
construed strictly, the coming of the Internet has determined an increase of the consideration paid to
restrictions to free speech. Particularly, in the ECthRs view, the specific medium represented by
the Internet has given rise to an amplification of the threats to fundamental rights compared to the
past. This point emerged, for the first time, in Editorial Board of Pravoye Delo and Shtekel v
Ukraina,
25
concerning the particular segment of freedom of expression corresponding to the
freedom of press:

The risk of harm posed by content and communications on the Internet to the exercise and
enjoyment of human rights and freedoms, particularly the right to respect for private life, is
certainly higher than that posed by the press. Therefore, the policies governing reproduction
of material from the printed media and the Internet may differ. The latter undeniably have to
be adjusted according to technologys specific features in order to secure the protection and
promotion of the rights and freedoms concerned.

The assumption behind the reasoning of the ECtHR is that the Internet is likely to raise new
problems for the protection of fundamental rights and that the measures applying to traditional
media shall not effectively work in the new digital environment. Then, a new balance between
freedom of expression and other human rights must be sought. In a nutshell, given that the Internet
is bringing along unprecedented legal issues, restrictions to freedom of expression should be more
broadly accepted.
This remark could be per se enough to describe how different is the approach of the ECtHR
from that of the US Supreme Court that, in the aforementioned decision Reno v ACLU, expressed a
completely opposed view:
26


The record demonstrates that the growth of the Internet has been and continues to be
phenomenal. As a matter of constitutional tradition, in the absence of evidence to the
contrary, we presume that governmental regulation of the content of speech is more likely to
interfere with the free exchange of ideas than to encourage it. The interest in encouraging
freedom of expression in a democratic society outweighs any theoretical but unproven
benefit of censorship.

Also in the case K.U. v Finland
27
the Court highlighted the non-absolute nature of the protection
of certain fundamental rights on the Internet. The case concerned the dissemination of the personal
data of a minor by an anonymous individual who had posted an online advertisement where he
claimed to be in search of a sexual relationship. When the applicant filed a complaint with the local
court, there were no legal grounds in the domestic legislation to force an ISP to disclose personal
data in case of a criminal conduct such as that at issue. Then, the domestic legislation failed to
strike a balance between the right to data protection and other interests. Although the complaint was
not based on Article 10, the ECtHR expressed significant remarks as to the enjoyment of freedom
of speech on the Internet:

Although freedom of expression and confidentiality of communications are primary
considerations and users of telecommunications and Internet services must have a guarantee
that their own privacy and freedom of expression will be respected, such guarantee cannot
be absolute and must yield on occasion to other legitimate imperatives, such as the
prevention of disorder or crime or the protection of the rights and freedoms of others []
[I]t is nonetheless the task of the legislator to provide the framework for reconciling the
various claims which compete for protection in this context.

Only when the limitations imposed to freedom of expression were excessive compared to the
aim pursued, the Court has adopted a stricter approach. For instance, this was the case of Ahmet

25
Editorial Board of Pravoye Delo and Shtekel v Ukraina App no 33014/05 [ECtHR, 5 May 2011].
26
521 US 844, 885.
27
K.U. v Finland App no 2872/02 [ECtHR, 2 December 2008].
Yildirim v Turkey,
28
where the judges of Strasbourg concluded that Turkey had violated Article 10
of the Convention by imposing a disproportionate restriction to Internet access. In the context of
criminal proceedings against the owner of a website where expressions insulting Ataturks memory
had been posted, an administrative authority ordered the blocking of all the Google Sites as a whole
to prevent access to the site in question, without ascertaining whether a less far-reaching measure
could have been taken. Then the applicant, who owned a website where his academic works were
published and which was involved by the extension of the blocking order, alleged a violation of his
right to freedom of expression. The Court noted that the blocking of a website falls within the
legitimate restrictions that contracting states may adopt in accordance with Article 10(2) of the
Convention, but only upon the condition that such a restriction meets the requirement referenced
herein. In the case at stake, both a strict legal framework defining the scope of the ban and a judicial
review were lacking.
Then, the approach of the ECtHR has proved to be very cautious. On one hand, it concluded that
a violation of Article 10 had occurred when the restrictions to freedom of expression did not fulfill
the conditions set forth under Article 10(2). On the other one, however, the Court conceded that free
speech is not an absolute, nor a right to which a greater protection is attached compared to other
fundamental rights: then, given the risks brought by the Internet, the right to freedom of expression
can more likely be limited than in the non-digital context.
The same view is behind the decision regarding the Pirate Bay
29
case, where on the contrary-
the ECtHR rejected the application based on Article 10. The applicants were the owner of a famous
online platform where users were provided with links to download illegally copyrighted materials
through the use of peer-to-peer systems. They had been sentenced under the Swedish law that
criminalized copyright infringements but complained that their right to freedom of expression had
been violated in this way. The Court declared the complaint inadmissible, as the restriction posed to
free speech met the conditions under Article 10(2) and, particularly, was proportional to the
legitimate aim pursued.
30

Thus, the view taken by the Court of Strasbourg is that the coming of new technologies, and the
Internet in particular, has not generally expanded the scope of freedom of expression; rather, it has
created more opportunities for this right to enter into conflicts with other interests protected under
constitutions.
This remark is confirmed, first of all, looking at how the ECtHR reacted to the use of the
Internet with respect to the freedom of press, regarded as an essential part of the freedom of speech
and pillar of democracy. In the case of Stoll,
31
the assumption behind the reasoning of the ECtHR is
that by virtue of the new technologies the duties of journalists has become more demanding:

[T]he safeguard afforded by Article 10 to journalists in relation to reporting on issues of
general interest is subject to the proviso that they are acting in good faith and on an accurate
factual basis and provide reliable and precise information in accordance with the ethics of
journalism [] These considerations play a particularly important role nowadays, given the
influence wielded by the media in contemporary society: not only do they inform, they can
also suggest by the way in which they present the information how it is to be assessed. In a
world in which the individual is confronted with vast quantities of information circulated via
traditional and electronic media and involving an ever-growing number of players,
monitoring compliance with journalistic ethics takes on added importance.


28
Ahmet Yildirim v Turkey App no 3111/10 [ECtHR, 18 December 2012].
29
Fredrik Neij and Peter Sunde Kolmisoppi (The Pirate Bay) v Sweden App n 40397/12 [ECtHR, 13 March
2013].
30
See also Ashby Donald and other v France App n 36769/08 [ECtHR, 10 January 2013].
31
Stoll v Switzerland App no 69698/01 [ECtHR, 10 December 2007].
Furthermore, these observations are confirmed even if we assume that similar conducts occurred in
the non-digital scenario. Recalling the case of Yildirim v Turkey, such a broad limitation of freedom
of expression as that adopted by the Turkish authority presumably would not have been necessary.
If a singular publication is found to be defamatory and there are legal grounds to prevent its
circulation, the measures to be taken by the relevant authorities in the non digital world are only
concerned with that publication, not with others. There will be no reason, in other terms, to block
(in the online environment) i.e. to seize in the offline scenario- several contents instead of the only
one regarded as an unlawful exercise of freedom of expression.
Of course, the problem of proportionality that is a key factor in this respect- is connected to the
nature of the technical means and represents the leading factors that makes it critical the protection
of freedom of expression on the Internet.
The same case of Delfi In the recent case Delfi v Estonia
32
, the European Court of Human
Rights (hereinafter, the ECtHR) has been asked to review whether imposing fines over an Internet
news portal for defamatory comments posted by users that the website had failed to promptly
remove constituted a restriction of freedom of expression.
protection
In Delfi, the ECtHR found that Article 10 of the Convention does not afford protection to
freedom of expression in absolute terms. Rather, Article 10 allows contracting states to interfere
with the exercise of this right provided that the said restrictions meet the conditions under par. 2, i.e.
(i.) are prescribed by law, (ii.) have a legitimate aim and (iii.) are necessary in a democratic society.
What it is important to highlight is that the ECtHR, on one hand, considered that the legislation at
stake posed a significant restriction, whereas, on the other one, found that nevertheless the same did
not amount to a violation of Article 10.
Since the protection of individuals reputation, in the Courts view, ranks among the objectives
that may justify a limitation of freedom of expression, the ECtHR held that there was no
infringement of Article 10.
A last point has to be stressed in conclusion. The relative (rather than absolute) consideration
paid to the fundamental rights enshrined in the ECHR does not constitute an invention of the
ECtHR fostered by the impact of the new technologies. Balancing fundamental rights has been the
task of the ECtHR since its origins, indeed. However, the new environment where fundamental
rights can be enjoyed has induced the judges of Strasbourg to stress more frequently the relative
nature of the same and, then, to justify restrictions that in the world of the atoms they most likely
would not have tolerated.


4.2. The Court of Justice of the European Union

How the Court of Justice of European Union would have ruled the Delfi case before
mentioned? This question is crucial to introduce the European Union scenario against the
background which, as we have seen, characterize the ECHR legal context-
As it has been pointed out in the last paragraph, the case arose out of the claim of the owner of
an Internet news portal, which had been sentenced for the existence of defamatory statements
posted by users as comments to an article. The ECtHR, as we have noted, held that there has been
no violation of Article 10.
From a perspective other than an Article 10-based scrutiny, instead, the CJEU would have taken
into account the E-Commerce Directive (Directive 2000/31/EC) to review whether the legislation of
Estonia was compatible with the obligations imposed on and the liability exemptions accorded to
Internet service providers. And, in all likelihood, even in light, now, of Article 11 of the Charter of
Nice.

32
Delfi v Estonia App no 64569/09 (ECtHR, 10 October 2013).
This brief comparison gives the opportunity to bring to light the differences between the systems
of the European Convention on Human Rights and the European Union law, as well as the task of
the respective courts.
We have already pointed out that the Strasbourg Court handles complaints based among
others- on Article 10, to which the relevant provisions under national constitutions concerning
freedom of expression should conform. Then, the European Court acts as a very constitutional court
of fundamental rights in the context of the Council of Europe. However, the parameter to enforce
was established in 1950, when the Convention entered into force, thus the Court when tackling
cases involving new technologies- was required to carry out its review on the grounds of a very
dated parameter, which was designed to apply to a very different scenario. At the same time,
however, Article 10 (as well as the other provisions of the Convention) does lend itself to a very
flexible interpretation.
It is no accident that the parameters that the CJEU has to enforce, and particularly the E-
Commerce Directive, sounds more obsolete -for certain nuances- than the mentioned Article 10.
The Court of Justice, in fact, normally delivers its decisions in the framework of preliminary
proceedings. Since it is for courts of Member States to raise a reference for preliminary ruling, the
Court is bound by the question that is proposed and prevented from carrying out a broader scrutiny.
This precludes the Luxembourg judges to act - unlike the Strasbourg judges - as a very
constitutional court of fundamental rights, despite the recent incorporation of the Charter into the
EU primary law.
That said, the parameters on which the Court of Justice delivers preliminary rulings are less
flexible than Article 10 of the ECHR but, on the other hand, more specific. As to protection of
freedom of speech, we have already pointed out that, with the exception of a few provisions
contained in the Audiovisual Media Services, there is no hard law content regulation-policy at the
EU level. Rather, we note that the E-Commerce Directive governs the responsibility of Internet
service providers and is the sole legal framework that is specifically concerned with the Internet.
Yet, we have said, the enforcement of these provisions is difficult since the same have proved to be,
even if quite recent, obsolete compared to Article 10 of the Convention. The problem affects in
particular the liability exemptions set forth under the E-Commerce Directive, behind which there
was a state of the technology very different from the achievements that today we can observe. The
rise of the user generated content platforms, for instance, or the peer-to-peer systems, has brought
unprecedented issues that the same Directive 2000/31 does not seem able to satisfactorily resolve.
33

Then, the Delfi case, to go back to our question, should have been most likely adjudicated on the
basis of the liability exemptions. Rather than examining whether condemning the news portal for
offensive comments is in violation of freedom of expression, the CJEU would have focused we
suppose- on the absence of a control by the owner of the website over the (unlawful) activity of
users. No consideration would have paid, in all likelihood, to freedom of speech, since the task of
the Court is not to ascertain whether a violation occurred, but rather if the provider could be
responsible in relation to the conduct of those users who posted defamatory comments.
This does not mean, however, that freedom of expression has not entered into the subject matter
of some judgments of the Court of Justice.
Even in the absence of a specific policy providing a content regulation, in fact, we can assess
how the freedom of expression has been weighed with other fundamental rights in some recent
decisions involving the use of the Internet.
First of all, the case law from Luxembourg shows that freedom of expression has been touched
upon in judgments concerning copyright protection.

33
See, in this respect, CJEU [Joint Cases C-236/08, C-237/08 and C-238/08], 23 March 2010, Google
France SARL and Google Inc. v Louis Vuitton Malletier SA, Google France SARL v Viaticum SA and
Luteciel SARL, and Google France SARL v Centre national de recherche en relations humaines (CNRRH)
SARL and others. See also CJEU [C-324/09], 12 July 2011, LOral SA and Others v eBay International AG
and Others.
This is also the result of the incorporation into the EU primary law of the Charter, that affords
expressly protection to intellectual property under Article 17(2) as fundamental right. The fact that
intellectual property, as essential part of the right to property, ranks among the rights protected
under the Charter means that copyright is a competing interest compared to freedom of expression
and is thus likely to enter into a balance with the same.
This factor has an important consequence: whereas in the past freedom of expression as
individual fundamental right- was far from entering into competition with copyright, regarded as a
property right and then as an economic interest, the scenario nowadays is completely changed.
Along with the coming of the Internet, this factor has escalated the conflict between copyright
protection and freedom of expression. So, both the CJUE and the ECtHR have faced with an
increase of the cases where these rights are in conflict.
34

In two almost identical cases (Scarlet v Sabam and Sabam v Netlog
35
, or the Sabam saga) it was
at issue whether the judicial authority was entitled, pursuant to the EU law, to impose over Internet
service providers an obligation to adopt a filtering system aimed at detecting possible copyright
infringements on the assumption the use of a large amount of Internet connection was linked to the
illegal downloading of materials.
36

In both the cases, it was questioned whether such injunctions were compatible with the EU
relevant provisions and, particularly, with (i.) users right to the protection of their personal data;
(ii.) ISPs freedom to carry out economic activity and, finally (iii.) users freedom of expression (as
the filtering may not distinguish between illegal content and legal ones).
Surprisingly, the CJEU only considered as residual the claim regarding freedom of speech and
first examined the question in relation to the other two profiles. The CJEU found that imposing the
adoption of a filtering system such that in question was not proportionate to the objective of
copyright protection, as it determined a restriction, first of all, of the ISP right to carry out economic
activity, which is protected under Article 16 of the Charter. Only as secondary nuance, the Court
said that the system constituted also a violation of Article 8 and 11 of the Charter, which refer,
respectively, to right to personal data and freedom of expression.
It is true that also copyright enjoys protection as fundamental right under the Charter. However,
it is significant that the compatibility of measures aimed at copyright protection has been reviewed
only in a secondary step with respect to individual rights.
These decisions seem to downgrade the role entrusted to freedom of expression, which is
considered as a fundamental right like others, especially compared to freedom to economic activity.
The fact that no particular prominence has been given to this right can be, perhaps, put in relation to
the not still accomplished emancipation of the EU from a prevalent economic dimension.
In the wake of the Sabam saga is the opinion recently delivered by the Advocate General in a
case pending before the CJEU.
37
Here in question is the compatibility with the EU law of
injunctions ordering an ISP the blocking of a website providing illegal access to copyrighted
materials. Also in the reasoning of the Advocate General -who found that an ISP may be required to
prevent the access to a website, provided that such measures are proportionate- it emerges that
copyright protection must be balanced, as far as ISP are concerned, with freedom of expression and
freedom to carry out business. The opinion seems to attach greater importance to freedom of
speech, conceived as the right of ISPs to disseminate information and to provide users with access
to the same, but the analysis does prevalently focus on the possible infringement of Article 16 of the
Charter. In any cases, the Advocate General focuses on the social role of ISPs, in order to bring to

34
Ashby Donald and others v France App no 36769/08 [ECtHR, 10 January 2013].
35
CJEU [C-70/10], 24 November 2011, Scarlet Extended SA v SABAM and CJEU [C-360/10], 16 February
2012, SABAM v Netlog NV.
36
For a comment, see Kulk, S., Borgesius, F., Filtering for Copyright Enforcement in Europe after the
SABAM cases, in European Intellectual Property Review, 11 (2012).
37
CJEU, Opinion of the Advocate General Pedro Cruz Villaln [C-314/12], 26 November 2013, UPC
Telekabel Wien GmbH v Constantin Film Verleih GmbH and Wega Filmproduktionsgesellschaft GmbH.
light how operators are now playing a crucial role in the access to information (from both an active
and a passive perspective).
Then, the approach of the CJEU to freedom of expression appears to be not so careful as that of
the Strasbourg Court, since the judges of Luxembourg have not demonstrated a full emancipation
from the original economic dimension of the EU in granting protection to fundamental rights.
This conduct, however, is consistent also with the lack -as said- of a real content regulation at
the level of the EU, given that Member States seem to have retained the power to determine to
which extent contents are free to circulate (with the few exceptions contained in the Audiovisual
Media Service Directive). The sole common framework adopted by the EU is the E-Commerce
Directive, as pointed out above, deals with ISP liability and has almost nothing to do with contents.
The core of the rules provided by the Directive establishes that operators which do not perform any
editorial control over contents bear no responsibility for any unlawful conducts that may occur.
The, the coming of the Internet has probably caused a downgrading of the consideration
afforded to freedom of expression. But this assumption is confirmed and maybe even forced, in the
EU context, by the same circumstance that the existing framework to the extent the Internet is
concerned- is based on the E-Commerce Directive, then refers to economic services.
Similar conclusions can perhaps be reached having regard to another case that CJEU will deliver
in the next months. In another preliminary proceedings pending before the CJEU, the opinion of the
Advocate General Jskinen focused on whether the EU law protects the individuals right to be
forgotten.
38
The question here is whether an ISP operating as search engine can be required by a
data protection authority to remove links to dated or non accurate personal data without prior
consulting the owner of the pertinent website from which the data are indexed. The answer given by
the Advocate in his opinion is negative, but this position is based on the interpretation of the Data
Protection Directive in force,
39
not on the other possible grounds constituted, for instance, by free
speech claims. The reason why a DPA shall not require an ISP to remove personal data lies with the
fact that ISP do not generally operate as data controller and bear, therefore, no responsibility over
the processing of personal data, which is entirely automatic and operated by the owner of the
website. The same question may however be addressed from a different perspective: is the right to
have certain personal data available on a website covered by free speech, and in particular- fall
within the right to information? The parameter to which the CJEU is bound in this regard
represented by the E-Commerce Directive and the liability exemptions set forth therein - prevents it
from undertaking this different and more constitutionally-based path, although the CJEU could
however try to balance the right to personal data and the right to private life (enshrined in Articles 7
and 8 of the Charter) with the right to freedom of expression (Article 11). However, some remarks
have been expressed by the General Advocate in this respect:

Making content available on the Internet counts as such as use of freedom of
expression, even more so when the publisher has linked his page to other pages and has not
limited its indexing or archiving by search engines, thereby indicating his wish for wide
dissemination of content.

In any cases, the Advocate General concludes that none of the fundamental rights established
under the Charter does enjoy an absolute protection and then leaves room for any solution as to the
balance between freedom of expression and other rights.
It is worth mentioning also another point where it seems that the Advocate General is paying
attention to the problem of protecting freedom of expression. Specifically, as regard to the possible

38
CJEU, Opinion of the Advocate General Niilo Jskinen [C-131/12], 25 June 2013, Goole Sain SL
Goole In v Aenia saola de rotein de atos ario ostea Gonle
39
Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of
individuals with regard to the processing of personal data and on the free movement of such data, in OJ L
281, 23 November 1995, 31.
implementation of a notice and take down procedure based upon individuals-subject data
complaints, Mr. Jskinen clearly notes that imposing such a system for the removal of the indexed
contents would undermine the freedom of expression of the owners of the websites, as it would
amount to a private form of censorship. So, even if these assumptions do not resolve the balance
between right to personal data and freedom of expression, it seems that the freedom of carry out
business is no longer the only profile considered when assessing the impact of the Internet over the
protection of fundamental rights.
The fact that the coming of new technologies has brought along unprecedented legal issues,
among others, seems to be confirmed also by looking at parameters other than the freedom of
speech. Recently, the Advocate General delivered his opinion in a case
40
concerned with the
compatibility with the EU primary law of some provisions contained in the Directive 2006/24/EC
(Data Retention Directive).
41
More in details, the reference for preliminary ruling is focused on to
the lack of a legal requirement regarding the conditions upon which the retention of personal data
relating to users by the providers offering electronic communication services is legitimate. The
Advocate General argued that such provisions are in breach of Article 52 of the Charter, as the
restrictions posed to the fundamental rights (in particular, of the rights to private life and to data
protection) do not fulfil the requirements referenced herein, i.e. to be provided for by law and to
respect in any case the essence of the rights and freedoms affected. Apart from the merits of the
case, the Advocate General has pointed out that the effects of the interference produced by the
collection of personal data on individuals rights

are multiplied by the importance acquired in modern societies by electronic means of
communication, whether digital mobile networks or the Internet, and their massive and
intensive use by a very significant proportion of European citizens in all areas of their
private or professional activities.

5. Conclusions

In the course of this study we have assessed how the growing of the new technologies and the
use of the Internet in particular have affected the exercise of the fundamental right to freedom of
expression. Regardless of the extensive or limited constitutional consideration, it goes without
saying that the Internet has let new opportunities emerge and therefore has brought an extension of
both quality and quantity of speech that can be enjoyed by individuals. On the other hand, however,
a broader scope of exercise of this freedom is likely to increase the conflict with other interests that
likewise enjoy the same status of fundamental rights. Opportunities and risks have therefore to be
weighed.
We have then compared the most important decisions of the US and European courts in order to
investigate whether the traditional approach to freedom of speech developed in the world of atoms
has changed or not and, in more pertinent words, whether the margin of constitutional protection
has extended or reduced.
In this respect, it has constituted the necessary starting point to look at how US and Europe
approach freedom of speech in a very different light.
Taking into consideration the coming of the Internet, the distance becomes even more
significant. The most important decisions of the US Supreme Court taken with regard to the Internet
confirm that freedom of speech still enjoys a wide margin of protection. Behind the reasoning of the

40
CJEU, Opinion of the Advocate General Pedro Cruz Villaln [C-293/12 and C-594/12], 12 December
2013, Digital Rights Ireland and Seitlinger and Others.
41
Directive 2006/24/of the European Parliament and of the Council of 15 March 2006 on the retention of
data generated or processed in connection with the provision of publicly available electronic
communications services or of public communications networks and amending Directive 2002/58/EC, in OJ
L 105, 13 April 2006, 54.
US courts is the assumption that only those restrictions that fulfill the strict requirements under the
free speech doctrine do not infringe upon the First Amendment. And, accordingly, any content
restriction is subject to strict scrutiny, regardless of the other competing legal interests (e.g. minors
protection).
In Europe, the use of the Internet has marked a turning point in the approach of courts to
freedom of expression. We must first of all highlight that Europe has not implemented with a few
exceptions- a content regulation and Member States are therefore determining their own policies,
provided of course- that they are bound by Article 10 of the ECHR and, as result of the Treaty of
Lisbon, by Article 11 of the Charter.
The ECtHR and the CJEU have protected freedom of speech in a very different manner:
whereas the former does actually work as a constitutional court of fundamental rights, the latter has
been tasked with adjudicating controversies based on the European Union law, which has been
influenced by the economic original nature of the European Community.
Despite the different adjudication parameters and methods, we note that the consequences of the
coming of the Internet with respect of freedom of speech are almost identical.
Both the ECtHR and the CJEU, in fact, have delivered a number of rulings where it is assumed
that the new technological scenario is bringing more risks than opportunities in terms of exercise of
freedom of expression.
On one hand, we have seen that the ECtHR review has left room for those restrictions which
fulfill the requirements under Article 10(2) of the Convention. The recent case Delfi proves that
limitations to freedom of expression does not encounter any obstacle, in so far as they qualify as
proportional means to pursue legitimate aims. The judges of Strasbourg are then very far from the
US Supreme Court First Amendment strict scrutiny.
On the other hand, the CJEU has been called upon to balance fundamental rights such as
freedom of expression, data protection, freedom of carry out business and copyright, even in light
of the Charter that is now part of the primary EU law. Yet, the Court of Luxembourg seems to pay
still more attention to those rights which have an economic nature or which respond to the original
conformation of the EU. Freedom of expression does not enjoy the same value that in the worlds of
atoms a court would have reasonably afford.
Then, the age of the Internet, that was felt as a new frontier for the exercise of fundamental
rights, and of freedom of expression first of all, has not brought along as to the European scenario-
the promised land that was maybe expected to come. The way courts have interpreted Article 10
of the ECHR and Article 11 of the Charter, in other terms, refrain from considering the information
society as the age of the freedom of speech. And the main reason is that, if a wider scope of
protection can be granted, other fundamental rights, which derive risks from the Internet, must be
protected and balanced with freedom of expression.
If we observe that US view is so different and consider the borderless nature of the Internet, one
could understand why an unique theory of freedom of speech on the Internet is far from being
developed. An EU regulation of content, accordingly, as long as so different views coexist, will be
very hard to achieve and, most of all, to enforce. Also the problems of jurisdiction are then a factor
to consider. The different regard of free speech in Europe and the US, then, is a tough maybe
insuperable- obstacle in this respect.