SPECIAL COLLECTION OF THE CASE LAW ON FREEDOM OF EXPRESSION
they are characterized by their users’ ability to upload content at their own discretion, search engines,
on the other hand, do not allow such uploads. However, the very core of what a search engine does is
to allow the exploration and curation (“moderation”) of content it finds on its own on the internet. As
search engines are pivotal for finding (possibly embarrassing or even defamatory) content on the internet,
claims directed against these companies have been brought forward to stop the distribution of information that was considered wrong or hateful. Since a comprehensive overview of search engines’ obligation
to remove content that is incorrect, outdated, or simply not sufficiently relevant, while balancing the
rights of the individual in question and the public, already exists in the Special Collection of the Case
Law on Freedom of Expression: Does our past have a right to be forgotten by the Internet? Case Law
on the So-Called Right to Be Forgotten, cases concerning search engines’ obligations in this regard have
not been added to this Collection.
Finally, this Special Collection is naturally limited to the cases which are already included in the
Global Freedom of Expression Case Law Database. The database hosts more than 2000 cases in total
and, with that, nearly all the leading cases on freedom of expression in recent years. While the database
relies on a global network of contributors, cases from the United States, Latin America, and Europe are
most prominent. Thus, this Special Collection does not claim to give an all-encompassing overview of
all the relevant jurisprudence on content moderation worldwide. However, the carefully chosen sample
aims to cover and contextualize the most important legal debates that courts are currently facing on this
matter. It also tries to showcase the different pathways taken by judicial bodies when solving these issues.
This Special Collection only concerns cases issued by state courts dealing with matters of content
moderation. Of course, it is social media platforms which, as part of their daily business, are issuing
by far the most decisions on content moderation. They do so a thousand times per day. Some of them,
like Google and Meta, have decided to commit themselves to the United Nations Guiding Principles on
Business and Human Rights (UNGPs), and self-regulatory bodies, such as Meta’s Oversight Board. This
Collection does not include their decisions. For more information on them, see the Special Collections
of the Case Law on Freedom of Expression: Meta’s Oversight Board Cases, and The Decisions of the
Oversight Board from the Perspective of International Human Rights Law.
The jurisprudence presented in this paper is divided into three main sections: Cases against intermediaries, cases against public officials, and cases dealing with the actions taken by states to enforce a
particular kind of content moderation on private social media platforms.
The first section includes cases lodged by individuals against intermediaries, mainly social media
platforms. Claims by individuals compelling platforms to “carry” specific content are often based on an
alleged violation of freedom of expression materialized by the removal of content or the suspension of
accounts. Thus, their success is strongly linked to the position of the respective legal system towards the
(indirect) effects of fundamental rights on private relationships. When it comes to the removal of content,
the responsibility of the platforms for the content of third parties —the users— often comes into question.
The second section concerns cases against government officials administering social media pages.
Here, the distinction between private and official pages is especially challenging. When do private social
media profiles “transform” into public ones? Can public fora exist within the private “property” of a
social media platform?
Lastly, the third section examines cases dealing with governmental responses to a supposed insufficient moderation of content by social media. Measures taken in these instances range from voluntary
agreements to hard bans of specific social media platforms.
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