New EU Court of Justice Ruling on Platform Liability Could Cause Collateral Damage to Freedom of Expression | Electronic Frontier Foundation
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EFFecting Change: If You Own It, Why Can't You Fix It? on July 23
New EU Court of Justice Ruling on Platform Liability Could Cause Collateral Damage to Freedom of Expression
DEEPLINKS BLOG
By Christoph Schmon<br>July 22, 2026
New EU Court of Justice Ruling on Platform Liability Could Cause Collateral Damage to Freedom of Expression
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Intermediary liability laws around the world recognize that social media platforms, search engines, and other online service providers have become an integral part of our lives: they shape how we access information, communicate with others and participate in public debate, and foster innovation online. These laws generally shield platforms, to varying degrees, from legal liability for user content: the responsibility for unlawful speech should rest primarily with the speaker, not with those who merely host it.
These liability protections are not a gift for platforms. They exist so that platforms are not encouraged to proactively monitor and filter what we say online, or to remove even lawful speech simply to avoid legal risk.
This is why a recent judgment by the EU Court of Justice, Coyote System (Joined Cases C-188/24 and C-190/24), is concerning: it could deprive online platforms of liability protection because of how they organize and disseminate user content. The consequences for freedom of expression could be significant.
Liability Protections in the EU
The European Union has long embraced a system of limited liability for online service providers. Under the e-Commerce Directive and now the Digital Services Act (DSA), platforms benefit from liability exemptions for user content. To discourage censorship, they also cannot be required to generally monitor user content or actively search for illegal activity. But that liability protection comes with qualifications: Platforms lose this benefit if they play an "active role" such that they have knowledge of, or control over, user-provided information (Recital 42 ECD, Recital 18 DSA, and case law, for example para. 113 in L’Oréal v eBay). For hosting services, providers must remove or disable content they know to be illegal. The DSA has introduced extensive due diligence obligations for platforms but left these foundational immunities intact. The message is clear: platforms bear responsibility for proper systems and processes, but generally not for users' speech.
Coyote System, however, could undermine this balance. Confronted with a case about restrictions on navigation systems that transmit information to drivers about roadside checks, the Court formulated a general test for when an intermediary ceases to be a "neutral" host and therefore loses the hosting liability exemption. In essence, the Court held that where an intermediary's algorithm goes beyond merely categorizing and indexing user information to determine, "under what conditions, how and in which order of priority" (para. 122) information is disseminated, the intermediary "controls" that information and is deprived of protection under the e-Commerce Directive.
Let's be clear: the case is not about a service that ranked or recommended user-generated content in the way social media platforms do. It is about the collection and real-time relay of user alerts about roadside checks. However, the Court's reasoning is not confined to navigation services. Recommendation algorithms determine how and in what order user content is disseminated across virtually every major online platform. Should such platforms now cease to qualify as neutral intermediaries and lose the protection of the hosting liability exemption? The answer should be no.
The Meaning of Control
Control has never been understood this broadly. Nor should it be. Every hosting service provider, think of Facebook, Amazon or Bluesky, will have some control over users’ content. If that ability alone ruled the analysis, the liability exemption would become largely meaningless. Instead, the disqualifying “active...