SOCIAL MEDIA AND NATIONAL COURTS IN EUROPE: A FUNDAMENTAL RIGHTS PERSPECTIVE

The ECtHR has recognized the impact of Internet as a communication and information tool, drawing on existing principles in its jurisprudence on freedom of expression and the right to a private life to ensure those rights are respected online as offline. However, the court has never expressly addressed the specificities of social media. With many states, as well as the EU, contemplating regulatory action, this paper considers how existing ECtHR jurisprudence, as well as relevant Council of Europe recommendations, may be drawn across to the social media context. The nature of social media implicates the potentially conflicting rights of multiple users across both the right to a private life and freedom of expression. It also raises the question of the extent to which platforms might be said to enjoy fundamental rights themselves. Concerning free speech in particular, the analysis covers the right to expression as well as the right to receive and impart information.

The paper will discuss the fundamental rights dimension of the CJEU‘s social media jurisprudence, examining key features of the CJEU‘s reasoning and the effects of fundamental rights analysis on the CJEU‘s assessment. The chapter will also investigate the lack of fundamental rights analysis in cases with clear fundamental rights implications, and thus work towards a better understanding of the role of the CJEU as a fundamental rights adjudicator in social media cases. The analysis will further explore CJEU engagement with ECtHR case law. Despite the CJEU‘s quasi-exclusive reliance on the CFR provisions when engaging in fundamental rights analysis, this chapter argues that there might be good reasons for the CJEU to look for insight into the rulings of the ECtHR when coping with complex legal questions in a social media setting.

This paper analyses judicial adjudication in Spain in the context of social media. It briefly describes the constitutional and legal framework under which courts should address social media cases and subsequently assesses the role of Spanish higher courts. The analysis is carried out from two perspectives. First, it considers the role of fundamental rights in social media cases and, therefore, whether Spanish higher courts have framed social media cases within the fundamental rights‘ framework. Second, it examines the role of judicial dialogue in Spain and whether it has been relevant for Spanish higher courts in approaching social media cases.

Despite the lack of specific legislation regulating social media in Italy, national case law provides for interesting insights on the protection of fundamental rights in the digital sphere. Over more than 150 decisions have been issued by Italian Higher Courts in the decade 2009-2020, all addressing a wide range of social media-related issues. Those cases focus mostly on the exercise of freedom of expression online and the actual identification of its relevant boundaries. Throughout the analysis of these decisions, the careful exercise of adaptation of existing rules to different technological-mediated cases stands as a common methodological feature. The praiseworthy hermeneutic effort in an evolutionary sense carried out by the Italian jurisprudence does not fail to consider the developments of the European Courts. Yet, the judicial dialogue referring to European case law on social media and its constitutional sources presents several rooms for improvements.