A court’s gotta do, what a court’s gotta do. An analysis of the European Court of Human Rights and the liability of internet intermediaries through systems theory

This paper explores recent developments in the liability of internet intermediaries for user-generated content at the European Court of Human Rights in the cases Delfi v Estonia (2015) and MTE v Hungary (2016). Regulatory approaches towards the liability of internet intermediaries raise the complex question of the kind of Internet that law should contribute to designing. For example, should law create a more regulated but less free environment? Moreover, should internet intermediaries decide on human rights standards, such as freedom of expression? Drawing on the systems theory concept of autopoiesis, this paper demonstrates how the answer to these questions might be inherently connected to the performativity of law. In this analysis, particular attention is then paid to the question of anonymity and how it might challenge the role of law in granting remedies