SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION II. Cases against intermediaries Court decisions on content moderation mainly deal with the obligations of private enterprises. How free are they in their decisions of (not) removing content? What kind of boundaries – if any at all – do criminal law, contract law, and even fundamental rights set? The analysis of court decisions from around the world show that the answer to these questions very much depends on the particular legal system. The selection of cases in this section is divided into three main categories: (1) Cases in which users asked for the reinstatement of posts or accounts. In these cases, the decisive element of the judicial system comes to its stance on the indirect effect of fundamental rights on private parties. Most legal systems accept that fundamental rights can also be taken into consideration in contractual relationships between private parties, at least in cases where there is a significant imbalance of power. Thus, the users’ right to freedom of expression vis-à-vis the platform’s right to decide which content is allowed on its space is balanced. USA courts, however, have rejected such approaches consistently and emphasize their “state-doctrine” in which the state is the sole addressee of fundamental rights obligations. (2) Claims against the platforms to remove content that is deemed unlawful. This concerns one of the most important legal issues regarding the structure of today’s internet: the liability of hosting providers for illegal content shared via their services. Some of these cases not only request the removal of content (one could call this the “primary claim”) but also damages for the failure of doing it in time (“secondary claim”). (3) The cases in the third category are insofar different, as they do not concern specific content (or accounts) but ask for information on how the moderation of content is organized. They are investigative in nature and address mostly systemic issues rather than concrete ones. 1. Claims to reinstate content or accounts Obligations to reinstate content or accounts have been called “must-carry” orders. In the USA context, these refer to a long-established doctrine that obliges private entities to “carry” material by other private entities, often due to its monopolistic position and/or its public function. While such claims remain to this day unsuccessful in the United States, when it comes to content or accounts on social media platforms, courts in other nation states have granted them. In particular, German courts have underscored the importance of social media platforms for the public discourse, its quasi-monopolistic position, and the consequences that platforms’ decisions have for the exercise of fundamental rights. As many states have an established doctrine of (indirect) effects of fundamental rights on private entities, courts have had little problem applying fundamental rights when assessing the concrete contractual obligations of a social media platform. What they struggle with is not the binary question of whether fundamental rights are applicable, rather to what extent a private entity is bound to fundamental rights, and how conflicting rights shall be balanced. On the other hand, in the United States, the fundamental rights enshrined in the Constitution only establish obligations towards the state. If an action cannot be attributed to the state, fundamental rights are, in principle, of no concern (state-action doctrine). Thus, the arguments and decisions of courts in the United States differ vastly from other jurisdictions when it comes to content moderation. a. Content or accounts of individuals The jurisprudence from Germany can be categorized in two main schools of thought: Courts that have assigned state-like obligations to social media platforms to respect freedom of expression, and courts that emphasize social media platforms’ own rights (e.g. the right to conduct a business) and focus on non-arbitrariness by introducing procedural obligations. This conflict has been decided (at least for the moment) by the Federal Court in favor of the latter. 8