Rebalancing Online Speech Regulation: A Model-Sensitive Approach to End Users’ Judicial Protection in Europe

Freedom of expression online is increasingly shaped by intermediary-basedregulatory models that profoundly affect end users, yet judicial scrutinyincreasingly focuses on intermediaries rather than those whose speech is ultimatelyrestricted. This article develops a complex model-sensitive analytical frameworkfor assessing the intrusiveness of online speech regulation. Building on five criteriaof intrusiveness—timing of interference, universal and indiscriminate monitoring,characteristics of the competent authority, risk of collateral damage, and severityof sanctions—the article compares six regulatory models operating in the Europeanlegal space. It then analyses the case law of the ECtHR and the CJEU to identifythe safeguards and anti-safeguards applied to these models. The analysis reveals adisproportionality between structural intrusiveness and the level of judicialprotection afforded both within and across regulatory models. Also, three of theaforementioned criteria were neglected by the courts and the perspective of endusers increasingly underemphasised.