July 25, 2025
By Babette De Naeyer
***
To celebrate the 15th anniversary of the Strasbourg Observers Blog, we organised an in-person symposium with scholars, practitioners, and members of the ECtHR on 8–9 May 2025 in Ghent. Connecting in person with so many regular contributors was a wonderful experience and led to engaging dialogue with current and former judges of the Court. To allow our online community to participate in the thought-provoking discussions that took place, we will be publishing selected position papers on the blog over the next two summer months. We wish all of our readers a well-deserved break with a little peek on Strasbourg Observers here and there.
***
It falls to the European Court of Human Rights (hereafter: ECtHR, the Court) to delineate the often-blurred boundary between protected and unlawful expression under Article 10 of the European Convention on Human Rights (ECHR). In its assessment, the Court considers various content and context-related factors: the contribution to public debate, the role and status of both speaker and target, and the nature of any imposed penalty. Another common element is the form and consequence of the expression. Here, the Court distinguishes between written and spoken expressions, assigning them different legal qualifications. Although dissenters have considered this distinction to have a ‘somewhat artificial nature’ (Palomo Sánchez v. Spain, Dissenting Opinion Tulkens et al., §14), this blog proposes that the difference between spontaneous and deliberative speech is still relevant, especially in light of our current digital landscape.[1]
The Court has traditionally been more tolerant of offhand oral remarks made in the context of protests, viewing them as ‘rapid and spontaneous’ (Palomo Sánchez v. Spain, 2011 [GC], §73), uttered without any ‘possibility to reformulate, refine, or retract them’ (Gerger v. Turkey, 1999, §50; Birol v. Turkey, 2005, §30; Fragoso Dacosta v. Spain, 2023, §29; Erkizia Almandoz v. Spain, 2021, §31). Written expressions, by contrast, are considered ‘the result of a thought process’ (Rivadulla Duró v. Spain, 2023, §47) and are therefore subject to stricter scrutiny. This distinction is rooted in the message’s potential impact: oral speech is fleeting, while written words create a lasting paper trail.
Yet, the Court has also extended its lenient approach to oral messages delivered outsidethe context of protests, including situations where the applicants’ remarks were recorded – such as press conferences (Nilsen and Johnsen v. Norway, 1999, §48; Otegi Mondragón v. Spain, 2011, §54), live radio (Fuentes Bobo v. Spain, 2000, §46), and TV broadcasts (Gündüz v. Turkey, 2003, §49; Reznik v. Russia, §44; Thomaidis v. Greece, 2024, §32). Even though these recorded remarks could have a more lasting and far-reaching impact, similar to written expression, the Court emphasised that they were still spontaneous and non-deliberative, like oral speech.
The Court has thus extended its leniency for oral remarks across diverse settings: protests, press conferences, live radio, and TV broadcasts. Nowadays, however, a new medium for expression has become extremely widespread: the internet. In Europe, online platforms and social media now serve as primary spaces for public discourse. So, how has the Court’s distinction between written and spoken expression been transposed to the online context?
As a general rule, the Court’s offline expression principles extend to the online environment (Guide on Article 10 ECHR, §651). However, the traditional distinction between form– that is, written vs. spoken expression – has not been transposed into the Court’s case law on online speech. This is significant because, historically, the Court often used the form of expression as a proxy for assessing whether a statement was spontaneous or deliberative. The assumption was that spoken remarks were more likely to be impulsive, while written statements reflected greater deliberation.
In the online context, however, this proxy no longer holds. The written or spoken format of digital communication does not reliably indicate spontaneity or deliberation. For example, a tweet or Instagram comment — though written — can be as impulsive as an offhand spoken remark, while a TikTok or YouTube video — though spoken — may be carefully scripted and edited before publication.
Recent case law on online expression demonstrates that by no longer taken forminto account, the Court also no longer considers whether the expression was spontaneous or deliberative. Two illustrative examples of this are Savva Terentyev v. Russia (2019) and Almeida Arroja v. Portugal (2024). In both cases, the applicants argued that their statements were either ‘written spontaneously [as a] sudden reaction to the topic’ (Savva, §45) or ‘made during the television show [without the possibility] to obtain [his lawyer’s] advice’ (Almeida Arroja, §39). The Court, however, did not address these arguments in favour of spontaneity. In Savva Terentyev, the Court instead noted that the applicant’s blog ‘drew seemingly very little public attention’ (§81). A similar conclusion was reached in Almeida Arroja, where the Court found that, ‘although the applicant’s comments remained available online, their reach was not significant’ (§85).
It seems that by no longer focusing on form, and thus on spontaneity vs. deliberation, the Court now looks only at the potential consequence or impact of the message. This shift fits within the Court’s broader online case law, which consistently emphasises the unique risks and potential dangers associated with the Internet. While the Court recognises the many benefits of the Internet, it is also acutely aware of its risks – particularly regarding others’ right to respect for private life (Article 8 ECHR). Or as the Court has often put it: ‘unlawful speech […] can be disseminated as never before, worldwide, in a matter of seconds, and sometimes remain available online for lengthy periods’ (Delfi AS v. Estonia [GC], §110; Savva Terentyev v. Russia, §79; Sanchez v. France, §162).
When assessing the potential impact of online expression, the Court now pays particular attention to the ‘role and status of the person making the impugned statement’ (Guide on Article 10 ECHR, §238). As a consequence, a ‘well-known blogger or a popular user of social media’ (Magyar Helsinki Bizottság v. Hungary [GC], 2016, §168), or a ‘public or influential figure’ (Sanchez v. France [GC], 2023, §79; Féret v. Belgium, 2009, §75), is subject to stricter scrutiny, since their online behaviour has a higher potential to reach and influence the public. The common user with less internet (or real-life) fame, on the contrary, is cut some more slack (Savva Terentyev, §81; Almeida Arroja, §85).
In sum, the Court’s online case law now focuses on the potential impact of expression instead of its written or oral form. This is because the written vs. spoken form was actually just a proxy for the spontaneous vs. deliberate intent behind it. However, in the online environment this proxy no longer worked. Nevertheless, the disappearance of this proxy makes the Court stricter to online as opposed to offline expressions. This raises important questions about whether this adequately accounts for the fast-paced and impulsive nature of digital communication.
I argue that the Court should bring back this distinction between spontaneous and deliberate intent behind expression, because it made sense. Taking intent into account is very common in criminal law, for example, where it marks the difference between manslaughter and murder, between theft and burglary. The Court also considers intent when ruling on potential violations of other Convention Articles. For example, when determining the scope of Article 3 ECHR, the Court considers the intention or motivation behind the conduct (Khlaifia and Others v. Italy [GC], 2016, §160). It distinguishes between whether the infliction of pain was a ‘spontaneous act’ or whether ‘a clear element of intention was present’ (Gäfgen v. Germany [GC], 2010, §95).
The Court acknowledges that ‘the Internet has become one of the principal means by which individuals exercise their right to freedom of expression’ (Sanchez v. France [GC], 2023, §158). The ECtHR should then alsorecognise that many online expressions are in fact spontaneous. One may counter that, even if they may have happened spontaneously, they are still very different from oral remarks because online statements can be ‘reformulated, refined or retracted.’ However, the ability to edit or delete online content does not negate that the initial expression may have been impulsive and without careful consideration. Besides, even if one deletes their online expression upon further reflection, the original post might have already triggered legal proceedings. More so, reformulating or refining a message is not as easy as it once was.
Most social media platforms – now one of the primary means through which people express themselves – do not make it easy to ‘reformulate, refine, or retract’ impulsive comments. TikTok and Instagram, for example, have completely disabled the option to edit comments ‘post-posting’. This is supposedly to preserve the natural flow of conversation, preventing it from losing meaning due to later edits. Similarly, X only allows users to edit tweets when they subscribe to a paid premium model, which less than 1% of X’s total user base currently do.
Of course, comments or tweets could always be deleted, but that may not be sufficient if screenshots have already been taken and complaints filed. Moreover, if the applicant deleted their post upon further reflection, this could prove its spontaneous nature. Indeed, deletion demonstrates that the speaker regretted their choice of words and sought to withdraw them. In such cases, the Court should exercise particular caution before accepting serious restrictions on Article 10 ECHR.
Still, these design choices reflect social media’s core business model: they encourage impulsivity because it leads to more sensational content, which increases user engagement, allows platforms to collect more data, and ultimately drives profit. The addictive nature of these platforms has been widely discussed. Addictive design and the promotion of spontaneity are, in effect, two sides of the same coin.
If the Court were to recognise that such forms of online expression occur spontaneously – precisely becausesocial media platforms are designed to promote impulsive behaviour – it could shift the focus toward the companies fostering this environment. At the same time, this approach acknowledges that users may be manipulated into expressing themselves in ways they might otherwise have reconsidered.
Some people fear that social media is fundamentally altering the way we communicate; whether the internet is making us all meaner remains part of an ongoing debate. So perhaps the Court is right not to accept the spontaneous nature of online interactions, even if digital platforms are actively encouraging them. Maybe the Court should instead take a firm stance against this trend. In that sense, the Court takes on an educative role: it signals that we should think twice before posting and strive for better online etiquette.
But is it truly the Court’s role to shape individuals and teach society what our information landscape ought to look like? Should the Court adapt to current modes of communication, or should it instruct us on how we ought to communicate better? Arguably, publicly burning a picture of the King – as in Stern Taulats and Roura Capellera v. Spain – may not be the most proper way to express anti-monarchical views. Yet, it is not the Court’s job to determine the most tasteful form of expression. Rather, the core question the Court asks themselves when dealing with Article 10 cases is not ‘Was this a wrong thing to say?’ but ‘Can the government use criminal, administrative or civil liability against citizens for expressing themselves this way?’ Not to sound like a broken record, but Article 10 ECHR applies ‘not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb’ (Stern Taulats, §30; Handyside v. UK, §49).
Moreover, acknowledging that many forms of online expression are spontaneous does not amount to a ‘get-out-of-jail-free’ card. Hate speech or incitement to violence will still not be tolerated, regardless of whether it was expressed impulsively or deliberately. However, reintroducing this distinction between spontaneous and premeditated expression could be especially useful in cases involving speech that sits in legal grey areas, like offensive or satirical speech, which is often the first to fall victim to stricter interpretations of Article 10 ECHR.
Acknowledging that a statement was spontaneously uttered in an environment designed to encourage exaggeration and provocation places some of the responsibility back on the platforms that promote and profit from such behavior, rather than solely on users expressing themselves in that way.
The Court has appreciated the essential role the Internet plays in enabling individuals to exercise their freedom of expression and has thus declared that general principles of offline publications also apply online. However, in the digital context, the traditional distinction between written and spoken expression no longer made sense. In abandoning this formal distinction, the underlying reason for differentiating – namely, the distinction between deliberation and spontaneity – also seems to have been lost. This is unfortunate, because by concentrating solely on the potential impact of speech, the Court’s case law risks subjecting ‘exaggeration, or even provocation’ (Thoma v. Luxembourg, 2001, §46) to stricter scrutiny online than offline.
In this post, I have argued in favour of reintroducing this distinction in an updated, internet-proof way: shifting from a rigid oral-versus-written formal distinction to one that considers the spontaneous-versus-deliberative intent behind online expression.
In Tamiz v. the United Kingdom (2017), the Court acknowledged that ‘millions of Internet users post comments online every day, and many of these users express themselves in ways that might be regarded as offensive or even defamatory’ (§80). Yet it also noted that ‘many of those comments […] would, in the context in which they were written, likely be understood by readers as conjecture which should not be taken seriously’ (§81; emphasis added). As a result, the Court rejected the applicant’s Article 8 ECHR claim, thereby implicitly safeguarding Article 10 ECHR. Introducing similar reasoning explicitly into Article 10 ECHR case law would be a meaningful step toward taking the ‘specific features of the Internet’ (Guide on Article 10 ECHR, §648) truly into account and committing to a more balanced approach to freedom of expression in the digital age.
[1] This argument applies only to online expression cases where the applicant was the speaker of the message, claiming that the state’s restriction of their speech constituted a disproportionate interference with Article 10 ECHR. The reasoning presented in this paper should not be automatically extended to case law concerning intermediary liability for online expressions of others, which presents its own particularities. You can read more about such cases here, here or here.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
Strasbourg Observers would not be possible without the valued work of countless guest bloggers. Visit the “Contact” page on our website to find out how to become one!
