EU Court Casts Doubt on Platforms' Protection from Liability for Content

Intermediary liability laws around the world rest on a simple idea: the person who makes an unlawful statement is the one primarily responsible for it, not whoever merely hosts it. Such immunities protect users more than the platforms themselves — they remove any incentive for services to pre-emptively filter and remove even lawful content out of fear of legal risk. That is precisely why the recent ruling of the EU Court of Justice in the joined cases C-188/24 and C-190/24 (Coyote System) is alarming to the digital rights advocates at the Electronic Frontier Foundation.

What the dispute is about

On its face, the case concerned a narrow topic — navigation systems that collect drivers' reports of roadside checks and relay them in real time to other users. But the Court formulated a general test: if an intermediary's algorithm does not merely categorize and index user information but determines “under what conditions, how and in what order of priority” it is distributed, then the intermediary “controls” that content and loses its right to the liability exemption under the E-Commerce Directive.

The trouble is that this is exactly how the recommendation algorithms of virtually every major platform work. By this logic, Facebook, Amazon or Bluesky could also lose their protection — since any host to some degree “manages” how content is displayed.

What is wrong with the definition of “control”

The EFF points out that the notion of control has never been read so broadly. The disqualifying “active role” must concern the content itself, not the technical means of organizing it. In its ruling in the YouTube and Cyando case, the Court was considering precisely a platform that ranks and recommends content with algorithms, and it still proceeded on the basis that such a platform could, in general, enjoy immunity. The Advocate General stressed that what matters is “intellectual control” over the content — that is, who makes the information their own, not who determines how it is presented.

The new ruling also runs counter to the logic of the Digital Services Act (DSA). During its negotiation, proposals to strip platforms of immunity for optimizing and organizing content were rejected — not least thanks to lobbying by the EFF and its allies. The DSA expressly recognizes recommendation algorithms as an inherent feature of modern platforms and regulates them through separate obligations, without touching the underlying immunities.

A worrying trend

In the EFF's view, Coyote System does not stand alone. The organization points to a series of rulings that gradually narrow intermediary protections: the Russmedia case gave priority to pre-emptive monitoring for the sake of data protection, and the AGCOM case on Google's liability for YouTube videos conflated the vetting of partner-program participants with awareness of unlawful content.

There is a political risk as well: the European Commission is all too willing to carry landmark court findings over into legislation. If the trend continues, the EFF warns, free speech online risks becoming collateral damage of European regulation.

Source: EFF Deeplinks