A ruling arising from a driving warning app could upend the entire online speech ecosystem in Europe.
On June 16, 2026, the highest judicial body of the European Union — the Court of Justice of the European Union (CJEU) located in Luxembourg — delivered a seemingly insignificant ruling. The case itself is trivial: a French driving assistance App challenged a ban in French traffic regulations. However, the outcome of the ruling is highly controversial and may completely rewrite the legal landscape of the European internet — the ruling prohibits the dissemination of user-generated content that could help drivers evade police checkpoints.
This ruling is equivalent to the U.S. Supreme Court suddenly announcing that algorithm-driven platforms no longer enjoy the immunity protection under Section 230 of the Communications Decency Act, and will henceforth bear legal responsibility for every post published by users — regardless of whether they are aware of the existence of such posts.
This is no alarmist talk. If we take the literal meaning of this ruling seriously, the 26-year-old “safe harbor for internet intermediary exemption” operated by the EU — that is, Article 14 of the EU E-Commerce Directive — has been completely uprooted.
I. “Control” and “Knowledge” of an App
The French company Coyote System has developed a driving assistance App named Coyote. This App claims to be a “community application”, where users can report road hazards in real time, such as accidents, traffic jams, and speed cameras. The French government issued a decree prohibiting such Apps from disseminating user content that “may help drivers evade roadside police checks”. Coyote System refused to accept the decision and filed a lawsuit.
The case was brought to the highest administrative court of France — the Conseil d’État (Council of State). The Conseil d’État submitted the questions concerning the interpretation of EU law to the CJEU through the “preliminary ruling” mechanism of EU law.
The first 82 paragraphs of the ruling are mostly routine: the CJEU reaffirmed the two major principles of “home country control” and “mutual recognition”, concluding that France can impose reasonable requirements on individual websites.
The real bombshell is hidden in the last 19 paragraphs — a key issue concerning “intermediary liability”.
Article 14 of the EU E-Commerce Directive stipulates that internet service platforms do not need to be liable for illegal content published by users as long as certain conditions are met. This is the European version of the “safe harbor” principle. But the premise for enjoying this protection is that the platform must be an “intermediary hosting service provider”. That is, it only passively stores and transmits user content without active intervention.
In the past, the CJEU’s jurisprudence has always judged “control” and “knowledge” in a bundled manner: a platform will lose immunity protection only when it “knows” there is illegal content but fails to delete it.
However, in the Coyote System case, the CJEU separated the two conditions for the first time. The ruling states: “The two conditions of knowledge and control should be understood as independent of each other and mutually substitutable.”
This means that as long as the platform exerts “control” over user content through algorithms — such as determining the display order, priority, and presentation mode of content — it is no longer a legal “intermediary” and loses exemption protection, regardless of whether it knows the content is illegal or not. This is equivalent to the fact that any platform that uses algorithmic sorting or recommendation no longer enjoys safe harbor immunity, unless it returns to the most original pure timeline arrangement — which is almost impossible in today’s platform economy.
II. “Zombie Formalism”: The Deep Cultural Root of the CJEU
There is an “Advocate General” within the CJEU, which is equivalent to an independent legal advisor inside the court, who will issue non-binding opinions before the ruling of major cases. In this case, the Advocate General proposed a narrower interpretation path: the algorithm of the Coyote App does not merely transmit user reports, but performs deduplication, dispute screening, and rearrangement on the reports, forming a “new information base where the original user information is no longer recognizable”. Therefore, this service essentially goes beyond pure intermediary activities and does not fall within the scope of safe harbor protection.
The advantage of this interpretation path is that it only affects special services of the Coyote category and will not shake the entire safe harbor system.
But the CJEU did not adopt it. It not only rejected the narrow path of the Advocate General, but also introduced a more radical universal rule: as long as algorithmic sorting is used, the entity is not an intermediary.
This is not the first time. Just six months ago, in December 2025, the CJEU delivered a ruling in a similar direction in the Russmedia case. At that time, the legal community generally hoped that it was only an individual case. The Coyote System case shows that the court did not make an accidental mistake, but is advancing intentionally. Moreover, this issue goes far beyond internet policy and even poses a challenge to the rule of law in Europe.
However, the ruling does not give a convincing explanation for “why the court did this”.
This is also the most dangerous part. The author calls this phenomenon “zombie formalism”. The ruling style of the CJEU inherits the tradition of the French civil law system. In this tradition, judges are portrayed as “mouths that only read the words of the law” — these are Montesquieu’s exact words. Historically, French judges were not even allowed to publicly admit that they were “interpreting” the law. To this day, the CJEU still issues rulings in French with a single voice and does not publish dissenting opinions.
In rulings like Coyote System, this ghostly figure from the old regime period can also be seen.
III. Follow-up of the Ruling: Two Possible Fates
After the ruling, two interpretations emerged in the legal community.
One is the “minimalist interpretation”. Robert Spano, former President of the European Court of Human Rights, believes that this ruling should be treated as a “fact-specific” individual case, and its precedent effect should be minimized as much as possible. Based on his own experience, he pointed out that the European Court of Justice sometimes “embarks on a trajectory without realizing the full consequences of the literal interpretation, and then corrects the direction in future cases”.
But there are two key issues in this:
First, the courts of member states may not buy it. They may have their own policy goals and can completely take Coyote System as a sharp tool to expand liability.
Second, more importantly, the reaction of the platforms themselves. What determines the actual state of online speech is not what the court says, but what the platforms fear the court will say. If platforms believe that the ruling will expose them to legal risks, they will adopt the most conservative content moderation strategies — large-scale deletion and excessive blocking — and these consequences will be invisible, large-scale and irreversible.
Another complicating factor is the transition period of the law. At present, the E-Commerce Directive is being replaced by the new Digital Services Act (DSA). The DSA explicitly states that it will “preserve and clarify” the original exemption framework. However, whether the CJEU’s ruling applies to the DSA is still pending.
If the court chooses to limit Coyote System to the scope of the old directive that is about to expire, a strange situation will arise: the DSA jurisprudence will “preserve” the jurisprudence of the old directive before Coyote, not the jurisprudence after it. If the court chooses to extend the ruling to DSA, it must make a very forced interpretation of the provisions of the DSA — because the legislator’s intention is very clear: algorithmic recommendation alone is not sufficient to deprive exemption protection.
Whichever path is taken, more interpretations from the court are needed. And so far, the court has said nothing.
IV. How Serious Is This? — A Nightmare for Content Platforms Operating in Europe
Section 230 of the U.S. Communications Decency Act grants internet platforms near-absolute immunity: platforms are not legally liable for content published by users. The core issue of the Gonzalez v. Google case heard by the U.S. Supreme Court in 2023 is whether platforms that provide targeted recommendations for third-party content still enjoy the protection of Section 230. The Supreme Court ultimately avoided this core issue and maintained the status quo.
The Coyote System case is far more radical than this assumption. If the outcome of the Gonzalez case is that “the Supreme Court did not touch Section 230”, Coyote System is that “the CJEU directly demolished the foundation of the safe harbor”.
More importantly, any algorithm-driven platform operating in Europe — whether local, from the United States or China — may bear potential criminal liability and civil compensation liability for illegal user-generated content. According to the 2024 Draghi Report, foreign companies provide more than 80% of Europe’s digital products, services and infrastructure. That means the long-term consequences of this ruling will mostly fall on U.S. and Chinese companies.
Conclusion: A Signal That Deserves Serious Attention
No platform enterprise operating in Europe should treat this ruling as a mistake. The CJEU knows clearly what it is doing. It received a detailed risk assessment from the Advocate General, heard strong criticisms from academia and practitioners, and then insisted on making the above ruling.
This is a signal, a signal about the institutional culture of the CJEU — this court believes that it has the right to overthrow laws formulated through democratic political procedures without providing explanations.
For those who focus on internet governance, this is a moment that must be taken seriously. For Chinese readers, this is also an important reference: the European Union is undergoing an institutional game over “who gets to determine the rules of the internet”, and its outcome will profoundly affect the global internet governance landscape.
Original link: https://www.lawfaremedia.org/article/zombie-formalism-in-luxembourg
Researcher at the Department of Law, European University Institute.
This article is from the WeChat Official Account “Internet Law Review”, author: Michael FitzGerald, published with authorization from 36Kr.
