Contempt of court and platform liability

A few months ago I wrote about the ambitiously extraterritorial reach of the Law Commission’s proposed reform of the England and Wales law on strict liability contempt (or contempt by publication, as it would be re-named).

I threatened to write about the platform liability aspects of the proposals at some future date. Here it is. It’s complicated.

In summary, the most significant proposed change is to introduce a single, unified standard of liability for anyone who publishes a contemptuous post when they know, or are aware of a risk, that legal proceedings are active. It would apply to both users and platforms. The current distinction between publishers and distributors would be abolished and, along with it, the distributors’ innocent dissemination defence.

The Law Commission proposes that someone would publish a user post if they make it available to the public or to a section of the public. As to whether a platform has made a user post available, that would be left to the courts to decide in the factual circumstances. The Law Commission suggests that it could be argued that there is a distinction between a platform performing no more than an essential technological function and one that pushes material to users.

The Law Commission also proposes that a single publication rule would apply (instead of the continuing online publication rule that, other than for limitation purposes, applies to defamation). That has subtle consequences for a platform’s liability position.

Present position – the 1981 Act

Strict liability contempt is about publications tending to interfere with active legal proceedings. The Contempt of Court Act 1981 applies the rule to a publication that creates a substantial risk that the course of justice would be seriously impeded or prejudiced. “Publication” includes a communication in whatever form, which is addressed to the public at large or any section of the public.

The 1981 Act goes on to provide defences for publishers and distributors respectively:

Publisher: that having taken all reasonable care it does not know and has no reason to believe that relevant proceedings are active.

Distributor: that having taken all reasonable care it does not know that the publication contains seriously impeding or prejudicial matter and has no reason to suspect that it is likely to do so.

The Act does not attempt any definition of publisher or distributor for the purposes of the defences.

The distributor defence is of particular relevance if an online platform is held to have communicated a contemptuous user post. The 1981 Act must assume that a distributor makes a communication, otherwise there could be nothing that requires a defence. But it does not in terms specify when a platform should be taken to have communicated a user’s post.

That is a matter of the common law that underlies the 1981 Act. It would be a question of the kind and degree of involvement in the user’s post that is required in order for the platform to be held to have made a communication of its contents.

The common law of defamation developed a similarly tripartite scheme: those who do not publish at all, primary publishers who are strictly liable, and secondary publishers who can rely on an innocent dissemination defence.

For defamation, in Bunt v Tilley [2006] EWHC 407 (QB) Eady J said:

“I would not, in the absence of any binding authority, attribute liability at common law to a telephone company or other passive medium of communication, such as an ISP. It is not analogous to someone in the position of a distributor, who might at common law need to prove the absence of negligence: see Gatley on Libel and Slander, 10th edn, para.6–18. There a defence is needed because the person is regarded as having ‘published’. By contrast, persons who truly fulfil no more than the role of a passive medium for communication cannot be characterised as publishers: thus they do not need a defence.”

As noted by Nicklin J in Monir v Wood [2018] EWHC 3525 at [176], there is occasionally confusion in the authorities in distinguishing clearly between (1) those who are not publishers at all under common law (e.g. ISPs that take an entirely passive role as a conduit for a publication and so have no need of any innocent dissemination defence and (2) primary and secondary publishers, in respect of which only secondary publishers could avail themselves of an innocent dissemination defence.

In Tamiz v Google [2013] EWCA Civ 68 the Court of Appeal held that, prior to being notified of its contents, Google was not a primary publisher of a blogpost hosted on its blogging platform. It was also doubtful if it was a secondary publisher. In any event it could not be said that Google either knew or ought reasonably to have known of the defamatory comments prior to notification of the appellant’s complaint.

However, caution has to be exercised in drawing analogies from defamation law. Defamation is not contempt, and defamation caselaw cannot be assumed to transpose to contempt.

Present position – the eCommerce Directive hosting shield

For online intermediaries the 1981 Act is not the end of the story.

Since 2002, the UK’s implementation of the EU Electronic Commerce Directive (ECD) has, to differing degrees, shielded conduit, caching and hosting activities from liability for unlawful user content. This is horizontal legislation that sits in its own layer, separate from individual substantive law such as contempt or defamation.

The most relevant shield for platforms is hosting: a host cannot be liable for a user’s illegal item of content unless it has knowledge of the illegality of that content and, upon gaining such knowledge, fails expeditiously to remove or disable access to that item of content.

If the host does not remove or disable access, it does not automatically become liable. Once the shield is removed, the host is exposed to the possibility of liability under the rules of the substantive law (such as contempt or defamation).

The hosting knowledge standard differs for criminal versus civil liability: actual knowledge for criminal liability, awareness of facts or circumstances from which the illegality is apparent for civil liability for damages. The provisions do not affect the possibility of an injunction.

The ECD hosting shield has its own uncertainties of scope. In particular, the CJEU has developed a doctrine that a platform does not qualify for the hosting shield to the extent that it takes an active role of such a kind as to give it knowledge of or control over a user’s item of content. The possibility that that might disqualify algorithmically-driven social media content has come more to the fore with the recent CJEU decision in Coyote (C-190/24).

Whatever uncertainties may exist around the application of the 1981 Act, a sufficiently passive platform has the alternative of relying on the ECD hosting shield. That protection is equally, if not more, significant than the 1981 Act itself.

Finally, there is an important wrinkle in how the ECD hosting shield has been enacted in the UK. For contempt of court liability, the ECD hosting shield protections are provided by the Electronic Commerce (EC Directive) Regulations 2002. However, those regulations state that they do not have prospective effect. That means that whenever legislation creates new potential liability for intermediaries, or amends existing such legislation, the ECD shields have to be enacted anew for that liability.

The result is that currently over 30 separate implementations of the ECD shields are scattered around the statute book. For contempt of court, it means that if and when the Law Commission’s proposals are enacted, the ECD shields will fall away unless re-enacted as standalone provisions. 

The Law Commission Report does not discuss this consequence of its proposals. As we shall see, the Law Commission proposals differ significantly from the ECD shields.

The Law Commission proposals - act of publication

For the act of publication the Law Commission has settled on “make available to the public or to a section of the public” (4.170, 4.197).

It also proposes a single publication rule, rather than the continuing publication rule that (other than for limitation purposes) applies to defamation. The reason is so that existing online newspaper archives do not potentially become in contempt by virtue of their continuing availability after proceedings become active. (4.236 et seq)

As discussed below, the proposed single publication rule appears likely to have subtle implications for platform liability for pre-existing user posts.

The proposed ‘make available’ formulation has cross-border implications (discussed here), but the question for today is whether (and if so in what circumstances) a hosting platform carries out an act of making available.

As already indicated, the Law Commission proposes to leave that question to the courts with no further guidance from the legislation. It says:

“We have considered how this definition would apply to platforms that host material online. Our view is that they are not precluded from being held liable for contempt by publication when proceedings are active. This would, of course, require proof that a defendant has done an act that makes material available (alongside proof of the other elements).”

It goes on:

“While platform systems provide a technological function that is essential for enabling users to make material available, it could be argued that there is no conduct by the platform that makes the material in question “available”. However, whether a platform can be said to have made material available for these purposes is a decision for the court and will depend on all the circumstances. For example, where a platform pushes material to users then it could be argued that it is this conduct that makes material available.” [4.171]

The Law Commission is, in effect, rehearsing more general liability questions of provision of facilities versus deeper involvement, and the relevance of active versus passive conduct, that have been long debated.

Para 4.171 goes on:

“However, there may be circumstances in which a platform fails to prevent a user from publishing material or fails to remove material once published by a user. In these circumstances it may be more appropriate to pursue for contempt the user who has made the material available on the platform. All will depend upon the factual circumstances in any given case.”

It is not entirely clear whether that paragraph is intended to refer to the substantive liability position of the platform, or to a prosecutor’s choice of defendant among those liable.

The defamation common law of publication provides a useful guide to the questions that a court grappling with these issues might have to answer. It does not follow that the answers would or should be the same.

In any event the proposed statutory regime would be completely self-contained. As such, it would be further removed from the common law of publication for defamation than the 1981 Act, which layers statute on top of the common law of contempt.

The Law Commission proposals - the fault element

Moving on to the proposed mental element, the most radical step now proposed by the Law Commission is to merge publisher and distributor liability, in effect doing away with the specific 1981 Act defence for distributors.

This is a reversal of the Consultation Paper, which provisionally proposed (Question CQ 29) an overall liability standard of recklessness but with separate thresholds for publishers and distributors:

            Publishers: Reckless as to whether proceedings were active.

Distributors: Reckless as to whether the distributed material created a substantial risk that the course of justice in the proceedings in question would be seriously impeded or prejudiced, in the sense that they knew there was such a risk and unreasonably took that risk by distributing the material. 

Para 5.17 of the Consultation Paper also described the threshold thus:

“a distributor would be reckless if they knew there was a risk the distributed material contained material that would prejudice active proceedings but they went ahead and unreasonably took the risk of distributing the material anyway.”

The Law Commission’s final proposal is for a unified fault standard: the defendant knew that:

            “proceedings were active or was aware of a risk that proceedings were active”.

The result appears to be that once a platform is (for instance) on notice that a particular set of proceedings is active, then (subject to the effect of the proposed single publication rule) it is strictly liable for all seriously prejudicial or impeding user content that it then publishes, whether it is aware of the content or not:

“To establish liability, a defendant publisher must have been aware of a risk that proceedings were active.”(para 4.396).

The prior, underlying, question of whether the platform has published a given item of user content at all would be considered by the court on a case by case basis without legislative guidance (see para 4.171, quoted above).

For a platform that is taken to be publishing items of user content, the practical effect appears to be that in order to minimise risk of liability, once it is aware that the proceedings in question are active (or of a risk that they are) the platform would have to proactively monitor and prevent the publication of new seriously prejudicial or impeding user content in relation to those proceedings. Seemingly, it would be liable for new contemptuous user posts that its proactive monitoring failed to pick up.

Single publication

The liability position of a platform would also be affected by the Law Commission’s proposed single publication rule. If a continuing publication rule were to apply, then once on notice that proceedings were active the platform would become liable for continuing availability of pre-existing user posts that it was taken to be publishing.

The Law Commission’s proposed single publication rule would mean instead that the mental element of liability has to be assessed at the point of initial publication of the post:

“the publisher must have been reckless at the time of publication. Where notice has been given after the material has already been published, then the publisher would not have been aware of the risk at the time of publication. Consequently liability is unlikely to arise.” [4.400]

By ‘notice’, the Law Commission means notice that proceedings are active. Consequently, the Law Commission argues, it would not make sense for liability to depend on whether the material is removed expeditiously (as advocated by techUK):

“Where a publisher has in place adequate processes to determine whether proceedings are active, but nevertheless does not become alert to the risk, liability will not arise because awareness of the risk cannot be established. In this way, a recklessness requirement operates similarly to the notice-and-takedown model of liability favoured by TechUK: only once a publisher becomes aware of the risk, such as being put on notice, can liability arise.”

However, TechUK was referring to the notice and takedown model under the eCommerce Directive (4.384, fn 368). That requires knowledge or awareness that a specific item of user content is illegal. There is a stark difference between being on notice that proceedings are active and being on notice that a particular item of user content is seriously prejudicial to those active proceedings.

For a pre-existing post, much then would appear to hang on whether there is republication of the post, either by a user or by the platform, after the platform has become aware (e.g. by being given notice) of the risk that proceedings are active.

The Law Commission says:

“Circumstances may arise where material has already been made available to the public or a section of the public and then another person or body acts to make the material available beyond the availability of the original publication. For example, a person may see an article on a website and then post on social media a link to that article or a publisher may move the material to a new position or make the material prominent on its site.

Whether a particular act amounts to making previously published material available to the public or a section of the public in a way that goes beyond the availability of the original publication will be a question of degree depending on the circumstances. … With respect to liability, the question will be whether there has been publication, and the conduct we describe here can be characterised in general terms as “republication”.” [4.195] (emphasis added)

Republication by a user after the platform is on notice that proceedings are active could, potentially, include a user reposting (in old-speak, retweeting) someone else’s pre-notice post on the same platform. If a platform is taken to be publishing user posts, then its potential liability for that user’s repost would appear to depend on whether the user’s repost is to a different audience from the original post made before the platform was given notice that proceedings were active. Either way, the platform would appear to remain not liable for continuing publication of the original pre-notice post.

The single publication rule has another possible variation. The Report does not discuss the possibility that the answer to whether a platform has performed an act of publication could change if it is given notice of the existence of a specific item of prejudicial user content on the platform.

This arises by analogy with defamation, specifically from another aspect of Tamiz v Google. It was referred to in the Law Commission’s 2013 Report (but not in its most recent Report):

“In a recent defamation case decided since the publication of the C[onsultation] P[aper], Tamiz v Google, the Court of Appeal held that a provider of a blogging platform could be “a publisher of the material” on its platform once on notice of its contents.” [2.19]

Again, it should not be assumed that a common law defamation rule would transpose to a new statutory contempt regime, especially since this rule (based on the old defamation case of Byrne v Dean [1937] 2 All E.R. 204) was developed in the context of defamation law’s doctrine of continuing publication.

In Tamiz v Google the Court of Appeal held that Google was not a primary publisher of users’ blogs posted on its blogging platform, and doubted if it was a secondary publisher. However, the court went on to find that since Google was given notice of the existence of a defamatory blogpost and did not remove it promptly, it was arguable that from then on it would be publishing the blogpost. The rationale is that in those circumstances the platform has ratified the user’s post.

A situation could arise in which a user makes a post before proceedings are active, on a platform which in the factual circumstances is taken not to have published it. Proceedings then become active and the platform is given notice of that fact. The platform is still not liable, since (inter alia) it has not itself published the post.

Suppose that the platform is then given notice of the existence of the post and does not remove it. If a ratification rule akin to Tamiz v Google were to apply, the platform has now performed its own act of publication. Since that act of publication occurs after the platform was given notice that proceedings are active, would that put the platform in the frame for liability?

Para 4.195 (see above) suggests that the user’s initial publication would operate as a bar to liability of the platform, unless a platform’s subsequent act of publication constitutes a republication to a broader or different audience than the original post.

If a ratification rule were applied, the question would then be whether the platform’s new act of publication should be regarded as being to the same audience as the original post, or to a wider one.

Questions of this kind seem closer to a question of legal principle than a matter that the courts should be left to assess on a case by case factual circumstances basis.

Why abolish distributor status?

Why, one might wonder, has the Law Commission changed position from its Consultation and proposed the abolition of distributor status?

Many responses to the Consultation recorded in the Report focused on social media services, seeking to characterise them as more than distributors:

“The joint response from the Association of Police Communicators (APComm) and the NPCC argued that “social media corporations … demonstrate no accountability or scrutiny of the content of their platforms” and that imposing such an obligation on distributors would help to “ensure they take their social responsibility for the content on their platforms seriously”.

“[Guardian News and Media Limited] … argued that the “expectations on social media platforms should be the same as for media organisations”.”

“[The Media Lawyers Association] said that online platforms are “more than mere ‘distributors’ of information” because they have commercial interests, benefit from user-generated content, and arrange and promote content to enhance their product.” [4.381]

Whatever the substantive merits of those propositions (they have been extensively debated over the years), they tend to equate online platforms with social media. That, however, does not take account of online platforms that do not deploy algorithmically driven, curated feeds.

The Law Commission concludes that:

“In light of our position that all conduct with which we are concerned should be conceptualised in terms of “publication” and no conduct should be conceptualised as “distribution”, it follows that the fault requirement should not be based on a distinction between publishers and distributors. Instead, a single standard should apply to all defendants.” [4.395]

That feels like a somewhat mechanistic piece of logic. If it had wanted to do so, the Law Commission could surely have specified separate recklessness standards for different modes of making available.

The Law Commission goes on:

“This approach provides for a simpler and clearer regime by doing away with a distinction that does not reflect accurately the way that platforms and media outlets, for example, operate in the online space.” [4.395]

However, it could equally be argued that a publisher/distributor distinction reflects reality better than a uniform regime that gives no recognition, other than implicitly in the underlying binary question of whether a platform publishes or not, to variation in kinds of online platform activity.

If the Law Commission is hinting (at [4.171, quoted above) that only social media companies that ‘push’ content to users might qualify as publishers in the first place, then it might be preferable to make that clear as a matter of principle and not leave it to the courts to determine case by case as a matter of factual circumstances, with no legislative guidance.

If, on the other hand, the publication net is to be thrown wider than platforms that actively curate user content, what is the rationale for abolishing distributor status and treating ordinary discussion forums and the like as strict liability publishers once they are aware of a risk that proceedings are active?

Abolition of the distinction between publisher and distributor could have one of two opposite consequences, depending on how the courts decided to interpret ‘make available’: it could subject a broad swathe of platforms, far beyond algorithmically driven social media, to strict liability once notice of active proceedings is given; or it could result in most platforms having no liability at all, even after receiving notice of active proceedings and then receiving notice of the presence of a contemptuous user post on its platform. Unless the courts adopted a ratification approach akin to Tamiz v Google, there would be no intermediate position.

It is perhaps understandable that the question of the kind of acts that do and do not constitute publication by a platform has been left to be determined by the courts case by case. These issues are difficult and continue to be the subject of often polarised debate. They have been argued over by academics, legislators and the courts over the last 30 years.

However, is it ultimately satisfactory to leave the underlying “act of publication” point entirely open when (given the abolition of the distributor defence and the proposed adoption of a unified fault standard) it seems likely to be central to determining the liability status of a platform?

It might be thought that a liability framework, whatever its particular merits or demerits, should aim to provide everyone concerned with reasonable certainty, in advance, as to where they stand. That would especially be the case when the underlying issue of what does and does not constitute publication by a platform is only ever likely to be considered by a court in the serious context of a contempt application.

Hosting shield

For the past 20 years or so the liability thresholds set by the 1981 Act have probably been of little practical consequence since a platform, by taking down a post on receipt of notice that that post was problematic, would normally be able to rely on the ECD hosting regime as a shield against liability.

As already mentioned, for algorithmically curated social media services the comfort provided by the ECD shield may be less than it used to be, in the light of the CJEU’s developing neutrality condition and the recent Coyote decision. However, at least for other kinds of platform the ECD shield remains pivotal.

It remains official post-Brexit government policy to apply the ECD shields:

“The government is committed to upholding the liability protections now that the transition period has ended. For companies that host user-generated content on their online services, there will continue to be a ‘notice and take down’ regime where the platform must remove illegal content that they become aware of or risk incurring liability.” (Gov.uk Brexit Guidance)

An implementation of the shields is included in, for instance, sections 72 and 99 of the Crime and Policing Act 2026, applicable to certain new offences created in that legislation.

It would seem appropriate that, whatever specific liability regime may end up being enacted as a result of the Law Commission proposals, consideration should be given to re-enacting the ECD shields so that the existing additional layer of protection for hosts does not disappear by default.

ECHR compatibility

The TechUK consultation submission recorded at para 4.384 of the Report suggested that a regime akin to the ECD intermediary liability shields was necessary to ensure compliance with Article 10 ECHR. The Report does not discuss this specific aspect of Article 10 compliance.

ECHR jurisprudence (e.g. Delfi v Estonia, MTE v Hungary, Sanchez v France) has not yet directly addressed ECHR compatibility of a liability regime applicable to a host. The proportionality balancing exercise was specific to the different factual circumstances in each case. Nevertheless, it seems likely that imposing strict liability on a platform after awareness of a risk that proceedings are active, without a notice and takedown shield tied to individual posts, would be at risk of contravening Article 10 on proportionality grounds.

Although not binding on Member States, the recent Council of Europe Recommendation 2026(4) on online safety and empowerment of users and content creators (to which the UK is signatory) endorses platform notice and takedown regimes:

“54. Placing an excessive content moderation burden on intermediaries effectively compels them to act as censors of speech on behalf of the State authorities, which is an approach that is incompatible with Article 10 of the Convention. States should refrain from imposing disproportionate liability on internet intermediaries for user content, which may incentivise or result in overblocking of lawful content.

55. States should ensure, in law and in practice, that internet intermediaries, including platforms, are not held liable for third-party content which they merely give access to or which they transmit or store. State authorities may hold intermediaries co-responsible with respect to content that they store if they do not act expeditiously to restrict access to content or services as soon as they become aware of their legally restricted nature, including through transparent, accessible and effective notice-based procedures. The conditions for the removal of illegal content or the enforcement of other restrictions on legal but regulated content should be established by law. Such conditions, including time frames for removal if any, should be differentiated taking into account the nature of the content and the seriousness and imminence of the risk deriving from its dissemination.”

Back to the borderless future

An internet jurisdiction retrospective 

The problem

Since the dawn of the internet we have wrestled with the question of how best to reconcile national laws with the inherently cross-border medium of the internet. We are still at it, with resolution seemingly as far away as ever. The periodic eruptions of controversy when some nation state decides to assert its local laws in a way that others view as exorbitantly extraterritorial are testament to that.

If answers are difficult to come by, the nature of the problem was always obvious. Back in 1999 I described the jurisdictional challenges to national legal systems presented by the internet. 

“Time is no longer a barrier: on the Internet content can be delivered instantaneously across geographic and political borders. Distance is irrelevant: not only can messages be transmitted from one part of the globe to another instantaneously, but for the user the location of the content is irrelevant. All that matters is that the content appears on his or her screen. … The Internet also destroys cost barriers.  

…

These characteristics give the Internet the potential to erode national legal systems based on geographic and political boundaries. While imposed barriers – customs, immigration, tariff and physical – still remain, the Internet challenges their enforceability. … People responsible for content are vulnerable to enforcement in states in which they live or visit, to which they can be extradited, or in which they have assets. But the information is almost immune. … Once telecommunications links are in place it is extraordinarily difficult for national authorities to prevent information flowing across their borders.” Content on the Internet – Law, Regulation, Convergence and Human Rights (Graham Smith, chapter in ‘International Law and the Hague's 750th Anniversary’, T.M.C. Asser Press, 1999)

That probably overstated the immunity of information to technical border controls, at least in the hands of a sufficiently determined government. Nevertheless, the bits and bytes still tend to fly across borders with a fine disregard for nation state boundaries; and politicians continue to debate the efficacy of geo-blocking and to be exercised by VPNs. 

There were some who argued that the internet was nothing new; that we had already had to grapple with cross-border broadcasting. However, a handful of satellite broadcasters bore little resemblance to hundreds of millions of individual online users posting their thoughts direct to a default world-wide audience.

What to do?

How, therefore, can we minimise friction between starkly differing sets of laws and values when, inevitably, they rub up against each other online? Can we achieve peaceful co-existence, or are we condemned to a perpetual contest for superiority between competing national laws? Does that become a race to the most restrictive common denominator?  If so, does that matter?

If a nation state feels strongly enough about the values embedded in its own domestic laws, is it entitled to assert those against all visible online content worldwide? Or should it grit its teeth, exercise jurisdictional self-restraint and accept that its citizens may legitimately be able to seek out content created under other legal systems?

What should count as sufficient connection with a country in order for its authorities to assert jurisdiction over foreign online content? Should those domestic authorities take into account the fundamental rights of users in other countries with less restrictive laws? If so, how? Is it legitimate for a domestic authority to co-opt online intermediaries such as search engines to require them to remove content from their services worldwide?

Is it reasonable to insist that, in order to avoid triggering other countries’ laws or jurisdiction, online content must be rendered technically inaccessible by geofencing? What if a geofence can be circumvented?

Those are some of the specific questions that the broad issue of internet jurisdiction throws up. They have been argued over in the courts and in academic scholarship for decades, going back to the mid-1990s. That was the era of Johnson and Post’s celebrated 1996 essay Law and Borders –The Rise of Law in Cyberspace, counterweighed ten years later by Goldsmith and Wu’s Who Controls the Internet?: Illusions of a Borderless World (OUP, 2006).

In the courts, the mid-1990s saw the CompuServe newsgroup and Radikal magazine cases in Germany. Those were followed in 2000 by the French LICRA/Yahoo! litigation over Nazi memorabilia displayed on Yahoo!’s .com auction site. That was the first case to focus expressly on whether mere accessibility of overseas online content should be sufficient to found jurisdiction, and to examine in detail the technical ability of a foreign website to filter out users from (in this case) France. The litigation carried on, on both sides of the Atlantic, until 2006, attracting world-wide attention as it went. It remains a paradigmatic internet jurisdiction case study.

Uta Kohl’s book Jurisdiction and the Internet (CUP) was published in 2007. She asked:

“Traditionally transnational activity has been ‘shared out’ between States with the aid of location-centric rules and these can be adjusted to suit the Internet. But can these rules be stretched indefinitely and what are the costs of squeezing global online activity into nation-state law?”

By 2017 Dan Svantesson was able to introduce his book Solving the Internet Jurisdiction Puzzle (OUP) thus:

“It is fair to say that the topic of ‘Internet jurisdiction’ is currently gaining an unprecedented level of attention. Indeed, at the moment, Internet jurisdiction is one of the most important, and most talked about, topics in Internet law and related fields.”

In March 2021 Julia Hörnle, commenting on her newly published book Internet Jurisdiction Law and Practice (OUP), observed:

“Essentially, jurisdiction is about the legal authority of state actors to act and that legal authority is limited to the population and territory of the state. It ends at the national border. Since this power of a state agent to act is limited to the territory of that state, but the internet’s reach is not so limited, jurisdiction is the fundamental legal concept behind many, if not most, of the troubles of effectively regulating the global internet. National police forces do not (normally) cross international borders.

If the legal concept of jurisdiction challenges effective policing of the internet, you may ask, why can’t we simply change this old legal concept to something more suitable? The problem lies not in the law but in the international political system of governance by nation states, a political system closely tied to national identities, culture, and geo-political realities.”

Whether we are seeking to adapt existing jurisdiction rules or to attempt something more radical, the reality is that when national legal rules clash, dispassionate application of formal rules can be hard to disentangle from culturally influenced views about what the law ought - and ought not - to be. That is well illustrated by the comments of the French court in the LICRA/Yahoo! case, suggesting that it would cost Yahoo! very little to extend its prohibitions on various other kinds of content to symbols of Nazism, and that:

"such an initiative would have the merit of satisfying an ethical and moral requirement shared by all democratic societies" (judgment on geo-filtering measures, 20 November 2000)

That implicitly contrasts the moral weight to be attributed to French law with that to be given to the USA's attachment to freedom of expression. 

The history of extraterritorial assertion of local laws on the internet is, unsurprisingly, littered with subject-matter about which passions run high: Nazi memorabilia, obscenity, holocaust denial, terrorism and others. 

The most recent controversies have been sparked by various countries’ online safety laws – notably those of the EU and the UK, which (along with some actions of the Brazilian Supreme Court) have attracted the ire of the current US administration.

Online safety is by no means the first, nor will it be the last, subject matter to fuel local enthusiasm to reach out across borders and take aim at non-conforming foreign content. What is perhaps different about online safety is the attempt not just to assert specific content laws against discrete items published online, but to impose entire regulatory regimes on service providers and to penalise non-compliance with administrative regulatory requirements. (In that respect online safety has something in common with EU and UK data protection regimes.)

Whether a foreign service provider has sufficient connection with a state to justify it in asserting a specific content law is a familiar enough question. With a regulatory regime, additional issues arise as to whether a regulatory body such as Ofcom (the UK online safety regulator) is entitled to serve legal notices directly across borders or whether that violates the territorial sovereignty of the state in which the recipient is located. Similar questions have arisen in the context of cross-border evidence requests by law enforcement to online intermediaries. 

Lack of consensus

Lack of consensus on jurisdictional self-restraint is perhaps not surprising: cultural and geopolitical sensitivities readily translate into reluctance to cede ground to another country’s less restrictive laws. 

2012

“Every so often someone in authority feels the urge to put on blinkers, engage tunnel vision and, casting the internet as chief villain, decide to view the rest of the world as an offshore haven that exists for the sole purpose of subverting his home laws.  This even happens at policy level.  EU and US authorities have both gained deserved reputations for trying to forcefeed other countries, and each other, with their pet legislative agendas. 

In the UK you could argue that we asked for it. Our libel courts willingly adopted the startlingly parochial doctrine, first espoused in the Australian case of Gutnick v Dow Jones, that any website in the world that can be read and comprehended in the UK is published here.  Asserting our libel laws against the rest of the world on the basis of minimal UK publication provoked the US to pass the SPEECH Act, preceded by New York’s Libel Terrorism Prevention Act.” 

See me, sue me? Cyberleagle, March 2012 

It is more frustrating if jurisdictional issues are approached as if the internet has only just been invented and the issues have not been thought about seriously before.

Ultimately, what jurisdictional rules are appropriate for the internet? How far should a nation state’s laws be able to reach extraterritorially? What are the consequences of overreach (in international law terminology, exercise of exorbitant jurisdiction)? What are the practical consequences of different jurisdiction rules?

I have been writing about these issues, on and off, for the best part of 30 years. I hope I can be forgiven for illustrating this thematic retrospective with some extracts from my own efforts. Whatever the reader may think of the views expressed, or how far they have stood the test of time, the exercise does illustrate that while the flashpoints may have changed, the underlying issues have not.

An international convention?

At one time there were suggestions of an international convention to govern the internet. Parallels were drawn with the Law of the Sea Convention. However, the maritime analogy does not really hold water. The internet is not an unowned expanse between states, requiring a separate legal regime to be created for activities that take place in the void between national boundaries. People’s online activities may straddle borders, or move across them instantaneously, but the activities do not in substance occur between them. The issue is one of conflicting laws, not one of no law.

In any case a convention harmonising substantive content laws was always likely to be unachievable. For myself, I was doubtful that it was even desirable; first, because there is intrinsic merit in maintaining a rich and changing variety of substantive content laws worldwide; and second, because any uniform worldwide content law that might be achievable would necessarily have to accommodate nation states with scant regard for liberal principles of freedom of expression. 

2019

"The risks attached to a universal convention to address those issues are twofold: that the prospect of agreement is very low; but also that if an agreement were reached, that would inevitably involve significant worldwide compromise of values such as freedom of expression. Those who would have to agree to such a convention include the very governments who so enthusiastically seek to apply their often restrictive domestic laws to internet activities emanating from other countries."

Internet Law and Regulation (5th ed, 2019, Sweet & Maxwell) Graham Smith, Chapter 6 Cross-border liability

In principle a jurisdiction convention — a set of rules about whose laws should apply — should aim to be agnostic as to the substantive merits of competing national laws. However, where content is concerned, value neutrality is something of a chimera: the greater the permissible reach of national laws online, the greater the prospect of exposure to the more restrictive law or regulatory regime.

Mere accessibility and most restrictive common denominator

The most expansive basis for asserting jurisdiction is mere accessibility, also known as country of receipt, country of destination or mere visibility. Even if there is no consensus about what internet jurisdiction rules should look like, from the start there was at least a strong body of opinion that mere accessibility is overreaching in principle, and that in practice it would lead to application of the ‘most restrictive common denominator’, a geographically fragmented internet, or both. 

1999

“If increased international co-operation were to result in national laws being extra-territorially enforced, … that would effectively amount to a ‘country of receipt’ rather than ‘country of origin’ regime. Under such a regime someone publishing content on the Internet would have to satisfy himself of its lawfulness in all countries of receipt. This is an extremely onerous and effectively impossible task to achieve. If ‘country of receipt’ were to be reinforced, it would result in a ‘most restrictive common denominator approach to Internet content.” 

Content on the Internet – Law, Regulation, Convergence and Human Rights (Graham Smith, chapter in International Law and the Hague's 750th Anniversary, T.M.C. Asser Press, 1999).

Some instruments (including the EU GDPR, the UK GDPR and the EU Digital Services Act) expressly exclude mere accessibility as a basis of jurisdictional competence. However, the consensus against mere accessibility is not universal.

2023

"Over the years a de facto compromise had been emerging, with the steady expansion of the idea that you engage the laws and jurisdiction of another state only if you take positive steps to target it. Recently, however, some states have become more expansive – not least in their online safety legislation.
…
There has long been a consensus against ‘mere accessibility’ as a test for jurisdiction. It leads either to geo-fencing of websites or to global application of the most restrictive common content denominator. That consensus seems to be in retreat.

Moreover, the more exorbitant the assertion of jurisdiction, the greater the headache of enforcement. Which in turn leads to what we see in the UK Online Safety Bill, namely provisions for disrupting the activities of the non-compliant foreign platform: injunctions against support services such as banking or advertising, and site blocking orders against ISPs.

The concern has to be that in their efforts to assert themselves and their local laws online, nation states are not merely re-erecting national borders with a degree of porosity, but erecting Berlin Walls in cyberspace."

Shifting paradigms in platform regulation Cyberleagle, June 2023

The Australian Online Safety Act 2021 asserts regulatory competence on the basis of mere accessibility. The England and Wales Law Commission has recently proposed mere accessibility as the basis of a reformed law of contempt of court by publication.

2026

“Today, the Law Commission exhorts Britannia (or England and Wales, to be exact) to rule the internet worldwide:

           “In our view, contempt laws should apply to all material that is accessible in England and Wales.” (Part 1 Report on Liability for Contempt of Court, November 2025 [4.173])

... Ultimately, the policy reasons that the Law Commission has finally relied upon are domestically focused. They do not go into the broader cross-border legal and geo-political aspects that a full discussion of international law and comity could have illuminated.

Such an analysis would have involved considering whether it is reasonable, from the perspective of the foreign state and its citizens, to impose ‘mere accessibility’ liability on persons in another country. It would require consideration of the position of a variety of potential actors: mainstream foreign press and media, individual bloggers and posters, and online platforms."

Britannia rule the internet Cyberleagle, May 2026. 

Johnson and Post’s ‘Law and Borders’ paper argued in 1996 that the result of asserting a right to regulate whatever a state’s citizens may access on the Net is that:

“All such Web-based activity, in this view, must be subject simultaneously to the laws of all territorial sovereigns.”

Mere accessibility is a species of the ‘effects’ test in international law, a basis on which states may seek to justify extraterritorial assertion of local law. The effects test was described by David Post in 2015 as:

"a wildly inappropriate doctrine for the Internet Age; if you're subject to jurisdiction where the "effects" of your actions or communications are felt, then given that the "effects" of communications over the Internet can plausibly be felt everywhere and anywhere, simultaneously and instantaneously, the [effects test] has the potential to nullify any and all limits on personal jurisdiction and subject everyone to jurisdiction everywhere - not a reasonable outcome."

Mere accessibility and extraterritoriality go hand in hand:

2001

“[W]e cannot assume that only the content laws that we like will be asserted extraterritorially. Take any regime whose idea of objectionable activities includes political or religious expression. Extraterritoriality is the first step towards requiring all Internet speech to respect the most restrictive national common denominator.” 

Letter to The Times legal section, Graham Smith, 30 January 2001. 

The late Max Mosley proposed mere accessibility in his 2012 submission to the Leveson Press Inquiry:

“Anyone using the internet must therefore obey the laws in their country. Similarly, they should obey the law in countries where their posts appear. As a practical matter, it is the search engines and service providers which can best prevent breaches of the law outside the country of origin of the original post.”

That prompted my submission to the Inquiry, in which I pondered what I, as the author of the Cyberleagle blog, should do in response to such a rule.

2012

“So faced with Mr Mosley’s proposed rule, what should I do?  Should I try to ascertain the most restrictive country’s content laws and comply with those?  With the resources of a multinational publisher that is a challenging exercise.  For a lone blogger it is preposterous.  Even if it could be done the result is a monstrously chilling effect on freedom of expression, whereby I (and my UK readers) are deterred from enjoying the benefits of the UK’s imperfect but nonetheless relatively liberal content laws. 

Should I hope that the worst laws will be unenforceable here, hole up in the UK and never set foot in another country (and if so do we wish to encourage such behaviour)? Or will Mr Mosley’s EU-wide law, then international convention, mean that I can be sued or, worst case, extradited, for breach of any non-UK content law, civil or criminal? (Extradition for internet activities can now no longer be regarded as fanciful, even under current laws.) 

So should I try to restrict the blog to a UK audience, or to the UK plus a few selected countries whose laws I might be able to research?” 

Leveson Press Inquiry Graham Smith, submission on internet jurisdiction, September 2012

The third option may be possible, including at the level of individual posts, on platforms where tools or geofencing plug-ins are available.  In my 2012 submission I assumed that the whole blog would have to be geofenced.  Whether it is a good thing to incentivise individual users to geofence is a matter for debate.

Positive conduct and the targeting test

One approach that has held out some promise of evolving into a workable compromise is the targeting test. 

2004

"From the earliest days of the web, lawyers have asked whether the worldwide availability of a website should of itself be sufficient to trigger worldwide liability. If not, what is the appropriate rule for the internet? A pure country of origin approach is politically difficult to achieve, whereas a country of destination approach exposes online actors to an unreasonable degree of liability. This article discusses whether a directing and targeting rule promises an acceptable solution, and if so how such a test should be formulated in order to prevent it degenerating into a country of destination rule.
…
In general, if a directing and targeting test is to draw an appropriate balance between country or origin and country of receipt, and discourage the erection of national borders in cyberspace, a finding that a website has targeted a particular country should be founded only on positive acts of the website proprietor, not on omissions to act.
...
To require evidence of positive acts is, in the context of the on-line environment, a close analogue to the original assumption underlying many of the rules written for the off-line world, that a trader did not without taking some positive step engage foreign laws and jurisdictions.”

Directing and Targeting - the Answer to the Internet's Jurisdiction Problems? (Graham Smith, Computer Law Review International 5/2004 129-170 May 2004)

2007

“A properly formulated targeting test would mean that, for instance, the court in the French Yahoo! case could not have found that the mere display of Nazi memorabilia was sufficient to violate French law, without some element of targeting or direction at France. Nor would it have been open to it to find jurisdiction, as it did, on the basis that because Nazi memorabilia were of interest to all, the areas containing those items were directed at all countries simultaneously including France. However, it might still have been possible for a court to find that Yahoo's serving up of French banner advertisements to French IP addresses would satisfy a "directed at" test."

Here, There or Everywhere? Cross-border Liability on the Internet (Graham Smith, 2007 C.T.L.R. 41)

2017

"The targeting approach occupies a middle ground, prescribing legal consequences for localisation but stopping short of incentivising or compelling fragmentation. Targeting holds out some promise of allowing national law to be upheld in circumstances when many would think it reasonable that it should do so, while also reducing incentives to fragment the internet. 

However the targeting approach can fulfil this promise only if it is formulated in a way that does not slip towards the country of receipt end of the spectrum. If, for instance, a French blogger writing in English were taken to be targeting all English speaking countries by virtue of using the English language, or the whole world by writing about topics of inter national interest, that would be a targeting approach in name only. A targeting approach still requires an underlying commitment to jurisdictional self-restraint on the part of the legislatures and courts that implement it.

Cyberborders and the right to travel in cyberspace (Graham Smith in The Net and the Nation State (ed Kohl, 2017) Chapter 9).

2026

“Directing and targeting of activities has long been thought to be an appropriate ground on which to assert jurisdiction over internet actors.”

Extraterritoriality and the transatlantic free speech wars Cyberleagle, February 2026

Co-opting online intermediaries

Whilst I took issue with Max Moseley’s 2012 visibility test (above), he was not wrong to say that search engines and service providers would be seen as best able to prevent breaches of the law outside the country of origin of the original post.

Co-option of online intermediaries brings into play an important distinction between initial jurisdictional competence and the territorial reach of the measures that a court or regulatory authority may decide to take when exercising that jurisdiction. Court cases seeking to co-opt intermediaries typically boil down to the latter: should a court that has assumed jurisdiction make an order with extraterritorial effect? 

The Canadian Google v Equustek and Australian eSafety Commissioner v X cases took different approaches to that question, the latter having more regard to the effect on individual users in other countries. Two CJEU cases have also considered the question: Google v CNIL (C-507/17, 10 January 2019) and Glawischnig-Piesczek v Facebook Ireland Limited (Case C-18/18, 3 October 2019). 

2017

"When faced with a bad actor, an ugly set of facts and a demand for an effective remedy it is all the more important that a court should anxiously examine the basis for exercising its power and carefully identify and balance competing factors, even – perhaps especially - where the internet is concerned. …

Where an apparent bad actor thumbs its nose at the court’s authority it is perhaps unsurprising that if a well-resourced global intermediary is haled into court, apparently able to take steps to mitigate damage to the plaintiff at little inconvenience to itself, the tribunal may (if satisfied that it has the power) be inclined to enlist its assistance.

Nevertheless if a future court should contemplate a similar order then a more detailed identification of the rights and interests involved, analysis of any territorial aspects of those rights and consideration of the freedom of speech rights of internet users separate from the sensibilities of states may be key to arriving at an appropriate outcome.”

Worldwide search de-indexing orders: Google v Equustek Cyberleagle, July 2017

2024

“A notable aspect of these passages [in the judgment of Kennett J in eSafety Commissioner v X Corp [2024] FCA 499] is the approach to comity of nations, especially in the balance of convenience section which refers to the effect on millions of people unconnected with the litigation. It stands in significant contrast with the approach of the Canadian Supreme Court in Equustek (a trade mark and confidential information case).”

Internet jurisdiction revisited Cyberleagle, May 2024

The UK Online Safety Act also illustrates the distinction between initial jurisdictional competence and territorial scope of measures: Ofcom is granted regulatory competence over certain intermediary services on the basis of whether the service is 'UK-linked', as defined by the Act. However Ofcom can enforce duties against a service provider only in relation to the design, operation and use of the service as it affects United Kingdom users of the service.

Domestic superiority versus peaceful co-existence

The comments of the French court in LICRA/Yahoo! remain a paradigm example of a national authority asserting the superiority of its local laws over those of another country. That, however, is not a recipe for peaceful co-existence. A measure of jurisdictional self-restraint is required.

2017

"Ideally, in a world of mutually respectful nation states, each country’s legal institutions would behave with modest self-restraint when asserting jurisdiction over cross-border online conduct. They would seek at most to govern activities within the country’s own borders or with an overwhelmingly strong domestic connection. They would refrain from asserting the superiority of their own laws over those of any other country that adhered to core human rights norms. Each country’s institutions would strive to avoid imposing their own country’s laws on activities abroad, either directly or through consequential effects in other countries. Such self-denying behaviour tends to encourage porous or open borders.

At some risk of caricature, in the real online world nation states tend to view the internet as little more than a device designed to undermine the efficacy of their domestic laws. In this view of the world visibility of foreign content is equated to importing the alien laws under which it was made. The parochial temptation to reach out and assert jurisdiction over merely accessible foreign content that contravenes a state’s domestic norms can be all but overwhelming. Laws may be asserted extraterritorially via broad concepts of location of activity and attenuated domestic connecting factors. Self-denying principles, such as that a state should refrain from doing that which it would not have done to it, waver in the face of foreign content that affronts local values. Giving maximum effect to local law may be articulated as a matter of national or regional honour.
...
Targeting rules and country of origin rules both imply recognition that the emancipated internet user’s home state should not seek to impose on its people a total monopoly of local laws in order to insulate them from foreign information– a policy that in the pre-internet physical world was attempted only in the most repressive states. We could go so far as to say that by keeping information out we keep people in: we erect not just a border but a virtual Berlin Wall. There is a risk that states, reacting fearfully and defensively to the inherent global nature of the internet, may adopt a policy of seeking to erect closed borders which are less porous than their pre-internet physical equivalents. By doing so they would deny their people the right to travel in cyberspace.”

Cyberborders and the right to travel in cyberspace (Graham Smith in The Net and the Nation State (ed Kohl, 2017) Chapter 9).

2017

"In one respect we have made progress since 1996. In an increasing number of subject matter areas a targeting test has been held (at least within the EU) to define the territorial scope of a right. Targeting rules hold out the prospect of something approaching a peaceful co-existence regime. Properly formulated and applied, a targeting test (a) lays down that mere accessibility does not trigger the laws or jurisdiction of another country and (b) requires relevant positive conduct, not mere omission, in order to do so.
…
However, the furore that periodically erupts around cross-border internet cases shows that there is still little consensus on these issues. Nuanced approaches may be at greatest risk of being jettisoned when the law in question is said to embody a core value of the state asked to adopt an expansive jurisdictional stance. That is also the time when greatest care should be taken not to let enthusiasm for the perceived merits of domestic law override respect for the different laws of other countries and the principle of peaceful co-existence.”

21 years of cross-border liability on the internet Cyberleagle, August 2017

2018

"Jurisdiction rules are about resolving friction between different legal systems in as agnostic a way as possible, not about ensuring that the best (in someone’s view) law wins.
…
The jurisdictional problems of the internet manifest themselves in both underreach and overreach. There are situations where arrangements between states are no longer providing adequate means to obtain evidence to support criminal investigations. We can no longer assume that the evidence relating to a domestic crime will be held domestically. It could as easily be in a data centre abroad.  That would suggest a need to improve procedures for obtaining cross-border evidence.

Conversely, we have situations in which domestic legislatures, agencies and courts are at risk of overreaching in the cause of giving maximum effect to their local laws. That can result in the de facto imposition of those laws in countries with different laws. The concern here is the need for jurisdictional self-restraint.

The challenge is to forge rules that enable cross-border reach when appropriate, yet prevent the exercise of jurisdiction when not appropriate.
…
The premise of jurisdiction rules is that nation states have different laws.  The objective where the internet is concerned should be to achieve peaceful co-existence between conflicting national regimes while protecting to the greatest possible extent universal values such as freedom of expression and privacy.

Peaceful co-existence cannot be achieved without compromise. That means taking a broader view than simply a laser-like focus on securing the effectiveness of one country or region’s most cherished laws. It may mean accepting that your country’s citizens can, if they try hard enough, find somewhere on the internet content that complies with another country’s laws and not your own.”

Peaceful coexistence, jurisdiction and the internet Cyberleagle, February 2018

Peaceful co-existence, however, remains far from the norm:

2026

"The transatlantic free speech wars continue to rage.
…

Some, no doubt, will be tempted just to plump for one side or the other, motivated by partisan preference for the EU, UK or US approach to governing speech and online platforms, by broader political affinities, or by views on the propriety or otherwise of deploying visa sanctions for this kind of purpose.

Tempting as that may be, simply to declare 'four legs good, two legs bad' will not do when it comes to considering international law rules and extraterritoriality. Taking sides based purely on a preference for the Digital Services Act or the Online Safety Act over the US First Amendment, or vice versa, does not address the underlying legal issue: how, in the inherently cross-border online world, to go about drawing boundaries - or at least minimise friction - between different national or regional legal systems. A more analytical approach is called for.
…

The more tenuous the connection and the greater the cross-border reach, the more exorbitant the claim to jurisdiction and the less likely that the extraterritoriality can be justified. 

That is the theory. In practice, the customary norms of international law tend to be distinctly malleable and, when push comes to shove, to merge into geopolitics.”

Extraterritoriality and the transatlantic free speech wars Cyberleagle, February 2026

Google v Russia: a hint of things to come

The outcome of Google’s complaint to the European Court of Human Rights in Google v Russia cannot be considered a surprise. The facts were so resoundingly against Russia that anything but a finding in Google’s favour would have had everyone reaching for the smelling salts.

Russia, following its resignation from the Council of Europe, chose not to participate in the case. We therefore have to be cautious about placing too much reliance on the Court’s reasoning. Nevertheless, the case is of interest not just for the main judgment, but for the concurring Opinion of Acting President Judge Pavli, who offered his reflections on how he would like the Court’s major online platform jurisprudence to develop in the future.

He speculates, for instance, that the Strasbourg court might at some point in the future – under the banner of securing freedom of expression – decide to require Member states, as a positive obligation under the Convention, to impose ‘right to a forum’ obligations on large platforms.

ECHR Article 10 and positive state obligations

For most Convention rights, positive state obligations (unlike protections against State action) do not exist automatically – the Court has to take the step of deciding that a positive obligation exists in specific circumstances. The position is summarised in Palomo Sanchez:

“58. …in addition to the primarily negative undertaking of a State to abstain from interference in the rights guaranteed by the Convention, “there may be positive obligations inherent” in those rights.

59.  This is also the case for freedom of expression, of which the genuine and effective exercise does not depend merely on the State’s duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals. In certain cases, the State has a positive obligation to protect the right to freedom of expression, even against interference by private persons…”

Although the Strasbourg Court frequently invokes positive obligations, Article 10 remains an area in which it has so far been relatively cautious in finding that positive obligations exist –especially where horizontal relations between private persons are concerned.

The reason for that is fairly obvious: freedom of expression is a highly sensitive area; and the effect of deploying a positive obligation (especially horizontally) is that Member states, rather than being free to make their own policy choices within boundaries set by the Court, must implement a particular policy devised by the Court (subject only to the latitude afforded to Member states by the ‘margin of appreciation’).

Some might think that a right to a forum is a good idea. Others might disagree. However, the prior question – on which opinions will also vary – is whether each Member state legislature gets to decide that policy question for itself, quite possibly coming to a variety of different answers, or whether the Strasbourg court gets to determine a uniform policy under the banner of securing Convention rights. 

Google v Russia – the facts

Turning to the Google v Russia case itself, two sets of facts came before the Strasbourg court: first, penalties imposed on Google for not complying with orders issued by the Russian telecoms regulator RKN to remove YouTube user content critical of the government and supporting the political opposition.

Second, a more complex history of Google barring a Russian state YouTube channel (Tsargrad) following the imposition of US and EU sanctions, then, after a Russian court order, reinstating it minus monetisation.  A Russian bailiff decided that the reinstatement did not comply with the order and imposed penalties greatly exceeding Tsargrad’s lost revenue. The local courts declined to interfere. Another 20 plaintiffs, predominantly Russian state channels, brought copycat claims in the Russian courts, with the result that by September 2022 the accumulated financial penalties were in the region of $16 trillion. Google Russia filed for bankruptcy in June 2022.

Applicability of Article 10

The Court held, following its Autronic decision, that Article 10 applies to everyone including legal entities and commercial profit-making companies. It observed that service providers perform an important role in facilitating access to information and debate on a wide range of political, social and cultural topics.

The Court had previously acknowledged in Tamiz that both Google and its end users enjoyed Article 10 rights. In Cengiz it had acknowledged that YouTube constituted a unique platform for freedom of expression.

Lastly, citing Özgür Radyo, it reiterated that any measure compelling a platform to restrict access to content under threat of penalty constitutes interference with freedom of expression.

RKN’s removal orders

The ECtHR majority decided that even assuming that the interference was genuinely in pursuit of a legitimate aim (as to which it was not satisfied), the government’s actions were not necessary in a democratic society. They observed that penalising Google LLC for hosting content critical of government policies or alternative views on military actions, without demonstrating a pressing social need for its removal, struck at the very heart of the internet’s function as a means for the free exchange of ideas and information. [80]

Specifically, the majority held:

-         The content that the authorities sought to suppress was political in nature [82]

-         The sanctions were disproportionate. By their nature and scale they were liable to have chilling effect on Google’s willingness to host content critical of authorities. The approach of the Russian authorities effectively required Google to act as censors of political speech on behalf of state authorities. [81]

-         The Russian domestic courts displayed a perfunctory approach to necessity and failed to examine the matter in the light of the Convention requirements. [82] ]

Existence of an interference Judge Pavli commented on the majority’s approach to the existence of an interference with the platform’s Article 10 rights:

“The Court considers that the imposition of such severe penalties, combined with the threat of further sanctions for non-compliance with [RKN takedown requests], exerted considerable pressure on Google LLC to censor content on YouTube, thereby interfering with its role as a provider of a platform for the free exchange of ideas and information.” [5]

He suggested [5] that this was a “novel interpretation”, lacking further elaboration of nature of the interference or the role of the applicant companies as holders of Art 10 rights.

He described the Tamiz decision as an Article 8 case that involved Google Inc. only indirectly and that centred primarily on the margin of appreciation afforded to the British courts. He suggested that that single sentence “did not provide a great deal of clarity as to how the Court views the role of such platforms under Article 10”.

That may have some force as a general observation. However, the majority found that there was interference with the means of dissemination. That does not seem especially novel or to require much, if any, elaboration. In Strasbourg caselaw, means of dissemination is a long-established mode of interference with freedom of expression:

“… any restriction imposed on [means of dissemination] necessarily interferes with the right to receive and impart information” (Yildirim (2012), citing Autronic (1990); Cengiz (2015)). 

It is not obvious how any further elaboration of the nature of the interference or the roles of the Google companies would have assisted in reaching the conclusion that an interference with the means of dissemination existed.

There could be a question as to who has standing to complain of an interference with means of dissemination: an affected user, the provider of the means of dissemination, or both.

In Yildirim an internet user with a website on Google Sites complained that the whole of Google Sites, including his site, had been blocked by the telecommunications authority following an order of a Turkish court. His site was not the subject of the original court order. Similarly, in Cengiz the complainants were three legal academics affected by a Turkish court order to block YouTube. In Autronic, a commercial company was denied a broadcast licence to show a Russian satellite TV channel at a trade fair.

Yildirim, the Cengiz complainants and Autronic were each held to have standing to complain to Strasbourg. The Court in Autronic pointed out that Article 10 itself “expressly mentions in the last sentence of its first paragraph (art. 10-1) certain enterprises essentially concerned with the means of transmission.”

Rights and responsibilities While Judge Pavli agreed that present case fell manifestly into the category of censorship, he embarked on a disquisition - under the title “Rights and Responsibilities of Major Online Platform Operators” - about possible duties and responsibilities of major platforms. He observed how they were no longer “mere” intermediaries, and increasingly used human and algorithmic tools for curating, moderating and monetising third-party content. He took as his cue a comment in the majority judgment:

“…At the same time, the Court notes that when internet intermediaries manage content available on their platforms or play a curatorial or editorial role, including through the use of algorithms, their important function in facilitating and shaping public debate engenders duties of care and due diligence, which may also increase in proportion to the reach of the relevant expressive activity…” [79]

However, neither the majority comment nor Judge Pavli’s additional observations have any obvious relevance to whether an interference existed in this case. Indeed, Judge Pavli acknowledged that the question raised by the RKN removal orders did not concern what obligations online hosting platforms might have, but what rights they enjoyed under Article 10 of the Convention.

It is perhaps unsurprising that the majority fastened on to the simplest, most obvious basis for its decision: disproportionate sanctions and domestic court failures.

Article 10(2) duties and responsibilities In any event, within Article 10 any ‘duties and responsibilities’ come into play, if at all, only as a factor at the second, 10(2), stage: necessity and proportionality of the state’s interference with someone’s Article 10 rights. As pointed out in the dissenting judgment of Judges Sajó and Tsotsoria in Delfi, Article 10(2) does not provide any basis for requiring the imposition of independent, standalone duties:

“The protection of freedom of expression cannot be turned into an exercise in imposing duties. The “duties and responsibilities” clause of Article 10 § 2 is not a stand-alone provision: it is inserted there to explain why the exercise of the freedom in question may be subject to restrictions, which must be necessary in a democratic society. It is only part of the balance that is required by Article 10 §2.” [38]

Thus any standalone platform duties could be imposed by Strasbourg only via the doctrine of Member state positive obligations.

Disinformation A clue to what may have lain behind Judge Pavli’s exegesis on duties and responsibilities lies in his opening comment: that Russia’s measures ostensibly concerned prevention of mass disinformation. [2] In a climate in which it is routinely said that platforms should have a duty to prevent dissemination of disinformation, an opportunity to explore that issue could be tempting. In another case it might be necessary to explore the ‘duties and responsibilities’ issues that can arise under Article 10(2), when considering the legitimate aim, necessity and proportionality of a state interference. This was not that case.

A positive State obligation? Even less would Google v Russia have been a suitable case in which to explore whether Strasbourg should require Member states to impose, via the doctrine of positive obligations, a self-standing duty on large platforms to take steps to prevent disinformation. It is not entirely clear if a positive obligation is what Judge Pavli was contemplating for the future. He starts:

“There is growing recognition that respect for fundamental rights online, and in particular freedom of expression and information, requires responsible practices by providers of major intermediary services”. [8] (emphasis added)

That might perhaps imply a positive obligation on a Member state to legislate. But he concludes:

“it may be considered permissible, in principle, for states to impose on major providers certain due-diligence obligations that seek to promote a safe online environment and to prevent turning their platforms into conduits for the large-scale dissemination of harmful content. In some context, such as elections, these safeguards may prove essential for the protection of democracy itself.” [8] (emphasis added)

If Judge Pavli’s point is only that a Member state’s imposition of due diligence obligations (if clearly and precisely defined, circumscribed and capable of being implemented proportionately – no small hurdle, it should be said) may in principle be compatible with the Convention, that is an unexceptional conclusion.

As to whether or not to impose such obligations, Member states are generally free to make their own policy choices within the constraints of the Convention. But if Judge Pavli is suggesting that (for instance) safeguards regarding elections might constitute a positive Convention obligation for Member states, that is a different matter.

EU Digital Services Act Judge Pavli also noted the EU Digital Services Act due-diligence obligations, although to what end is not clear. The mere existence of a domestic law (even an EU law that in Strasbourg caselaw benefits from a presumption of ECHR compatibility) should not be taken to imply a Convention ‘ought’.

Tsargrad

The second set of facts before the court raised the converse issue to the first: penalties imposed for not hosting user content. The penalties were for breach of a court order requiring reinstatement of a previously terminated YouTube channel.

Tsargrad sued in the Russian courts for wrongful termination of its contract with Google. Ultimately, the only issue before the courts was whether foreign sanctions invoked as grounds for termination complied with Russian public order. Following an unsuccessful appeal, Google restored the Tsargrad account but without monetisation. Penalties ensued.

Existence of an interference On these facts the preliminary question of whether there was an interference with Google’s Article 10 rights was more complex than for the RKN removal orders. The Court reasoned that:

-         Freedom of expression may encompass a right not to be compelled to express oneself. [90]

-         A holistic approach to freedom of expression encompasses both the right to express ideas and the right to remain silent [90]

-         The Russian court order constituted compulsion to host specific content, backed by financial penalties. That:

o   Directly impacted Google’s right to determine what content it was prepared to host on its platform

o   Fell within Article 10 – as with the RKN removal orders, the means of transmission is protected as well as content (Autronic)

Prescribed by law As to whether the interference was prescribed by law, Google argued that the quantum of the penalties far exceeded previous practice and any loss that might have been suffered. The Court had serious doubts on the point, but held that in any event the interference not justified.

Necessity and proportionality The Court was prepared to assume that the interference had the legitimate aim of protecting Tsargrad’s rights not to be subject to unlawful suspension due to sanctions contrary to public order. However, the interference was not necessary in a democratic society:

-         Where domestic law does not require proportionality in the context of excessive sanctions, or where the damages are manifestly disproportionate, there is a risk of creating a “chilling effect” on freedom of expression [96]

-         The Court noted inconsistencies raising doubts as to whether the measures pursued any genuine “pressing social need”.  Specifically, while purporting to defend freedom to receive information in Tsargrad’s case, the Russian authorities were simultaneously demanding that Google remove content critical of government policies. [97]

-         Penalties were manifestly disproportionate, reaching astronomical sums that bore no relationship to any harm suffered by Tsargrad. Copycat claims by State-owned media outlets increased the penalties to USD 16 trillion. Google’s Russian subsidiary had to be shut down. [98]

-         The domestic authorities were determined to continue recovery even after compliance with the obligation to restore access. The bailiff procedure, conducted within 24 hours without notice to Google, effectively expanded the scope of the order, raising concerns of bad faith. The process was incompatible with legal certainty. [99]

The grossly disproportionate penalties and bad faith enforcement demonstrated disproportionate interference and thus an Article 10 violation.

Penalties or substance? Judge Pavli disagreed with the majority’s approach to necessity and proportionality. In his view the majority was wrong to focus on proportionality of the sanctions: the main reason for failing the necessity test was the Russian courts’ failure to address the Article 10 rights of Google (or indeed of Tsargrad as a user) and to give relevant or sufficient reasons; the sanctions were secondary. [13]

However, he stressed that it was inconsistent with Art 10 for States to force private service providers to collaborate in policing and censoring speech that is clearly protected by the Convention.

Right to a forum Judge Pavli again embarked on a broader discussion, this time under the title “The Next Frontier – Right to a Forum and Procedural Safeguards for Users”.

His previous reference to Tsargrad’s Article 10 user rights foreshadows these comments, in which he speaks of user rights not only as something to be protected against state interference, but something enjoyed by users viz a viz platforms.

Thus, for Judge Pavli it was also of ‘some relevance’ that Russian law doesn’t grant users any due process as against the platform, in contrast to e.g. the EU Digital Services Act.

One might ask why that would be of any relevance to a case in which the Russian courts had upheld and enforced Tsargrad’s claim, not rejected it.  But at any rate, lack of platform due process mechanisms could come into play in a Strasbourg complaint brought by a user whose claim to have been wrongly excluded by a platform was rejected by the local courts.

The immediate problem with a complaint on those grounds is that the Convention does not confer any direct right on a private person to complain about action taken by another private person. The interference has to be attributed in some way to a member State. Such a complaint could only be formulated as breach of a positive obligation on a Member state to legislate for platform due process mechanisms, or in some other fashion to enact a ‘right to a forum’.  

Appleby The obstacle in the way of that approach is Appleby, a 2003 case concerning refusal of access to a privately owned shopping mall to set up a stall collecting signatures for a petition against a proposed building development. The Court expressly rejected a positive obligation on a state to secure such a right to a forum. It observed:

“The issue to be determined is whether the respondent State has failed in any positive obligation to protect the exercise of the applicants’ Article 10 rights from interference by others – in this case, the owner of the Galleries.”

…

“However, while freedom of expression is an important right, it is not unlimited. Nor is it the only Convention right at stake. Regard must also be had to the property rights of the owner of the shopping centre under Article 1 of Protocol No. 1.”

In Google v Russia Judge Pavli contemplated a future revisit of this long-standing Strasbourg caselaw:

“These issues are largely novel, and I believe in the long run will require the Court to revisit its “right of forum” doctrine as established in the 2003 case of Appleby and Others v. the United Kingdom (no. 44306/98, ECHR 2003-VI).”

He added:

“15. Our own Article 10 case-law on user rights remains rather limited at this juncture. Judging from the above trends, however, it is most likely only a matter of time before the Court is called upon to resolve disputes between the conflicting Article 10 and/or commercial interests of private online platforms, on the one hand, and their users, on the other – including the key question whether a right to a forum ought to exist in this context.

The question will undoubtedly be of great importance for the future of democratic discourse in our societies. Seen from this contemporary perspective, the Appleby principles will need to be revisited, as they are not fit, in my view, for the current online environment.

A small-town shopping mall from 1998 is a long way from the YouTube of 2025. To begin with, unlike the brick‑and‑mortar shopping malls of yesteryear, many of today’s large online platforms are squarely in the information business. More importantly, the debate on the availability of alternative fora of expression will also be much more complex.

16.  The Court will be called upon to assess whether major online platforms that are important for the free flow of information in our societies can be assimilated to the kind of public spaces to which everyone must have unhindered access. Whatever the answer to that question – and whatever rights Article 10 itself may (or may not) confer on users in that regard – it seems reasonable to assume that States will have a sufficiently strong interest in requiring large platforms to provide at least certain basic due-process safeguards aimed at protecting users – the powerful, the famous or just ordinary citizens – from arbitrary exclusion from the marketplace of ideas.”

Many might welcome the prospect of reopening Appleby and inviting the Court to devise rules for large platforms as public spaces.  Enticing new vistas of Big Tech policy advocacy would open up, refracted through the panoramic lens of human rights and conducted under the benevolent gaze of the Strasbourg Court. Whether extending the Court’s Article 10 role further from boundary-setter to meta-legislator would be universally welcomed is another matter.

[4 September 2025 Amended final sentence.]