Similarly, the EU law in its E-Commerce Directive provided online intermediaries with responsibility exceptions for the illegal content shared by the users [26] . The two main reasons for this special regime were the lack of effective control and knowledge over the content generated by users and the desire of EU institutions to enhance the digital economy. Therefore, the mechanism of “notice and takedown” was considered an effective solution for illicit content due to the ¶{p. 371}lack of awareness of the activities of users on social networks. As such, the platforms were free to remove or block illicit content when they were aware of its presence. They were granted a sort of “private” discretion on the fundamental rights of users, particularly the freedom of expression and the right to respect for private life. This delegation of public power by public actors ensured the effective implementation of public policies online [27] . The documents of the European institutions have also confirmed this public role of online platforms by clearly setting rules, guidelines, and principles to fight against illegal and harmful contents, and ensuring their responsibility [28] .

The case law of the European courts has also demonstrated this quasi-public “private” discretion. In 2000, the Tribunal de Grande Instance in Paris ordered Yahoo! to take all the measures to prevent access in France to an auction site selling Nazi objects, in accordance with French Law that prohibits such kind of sales [29] . On the one hand, the case clearly demonstrates the inadequacy of the State to monitor each criminal act occurring online [30] , while on the other, it ¶{p. 372}illustrated the power of private Internet intermediaries in enforcing fundamental rights [31] . The issue at stake was the balance between the freedom of speech of the company and the other rights of claimants. Owing to the limited power of the State over the Internet, the private company was held responsible by the Court for user-generated content on their website. The case was the first sign of opening a door to the “privatization of right enforcement”, thus adding power to private entities in enforcing rights [32] . This “privatization” trend was also named as “the invisible handshake”, marking the peculiar nature of collaboration between the private actors and the public functions [33] .

Therefore, the platforms regulated content access but carried out this sui generis activity mainly based on their definition of freedom of speech standards [34] . In the early phase of platform operation, this responsibility meant that the users participated in content moderation by flagging offensive and undesirable content. However, the weaknesses of such an approach materialized as the number of users grew and as the reports for content takedown intensified. To this, the platforms responded with creation of their own elaborate content rules, such as Facebook’s “Community Standards” [35] to govern content that are divided into six sections, namely, violence and criminal behavior, safety, objectionable content, integrity and authenticity, respecting intellectual property, and content-related requests [36] . ¶{p. 373}

With such a prominent role of the platforms in shaping the speech, free speech transformed from a relationship between the citizens and the State into a triangle composed of speakers, governments, and private governance actors namely the platforms [37] . In this phase lasting approximately up to 2016, the platforms played a role in expanding the borders of free speech also recognized by the US Supreme Court, which praised the “vast democratic forums of the Internet” [38] .

Still, the overwhelming amount of criticism and content takedown led Facebook to announce the creation of an independent and global body to make decisions about user-generated content [39] . Called the Oversight Board, a body composed of many prominent legal experts and former judges was established in 2020. Its function, defined in the Oversight Board Bylaws, is to “protect freedom of expression by making principled, independent decisions about important pieces of content and by issuing policy advisory opinions on Facebook’s content policies” [40] . In October 2020, the Board started hearing cases, limited to “highly emblematic cases” as Facebook itself would referred to them releasing its first decisions in January 2021 [41] .

In this way, online platforms have become first the legislators by drafting their rules; then “courts” by deciding on these rules, and finally the “executives”, by enforcing the decisions they made. This perspective on the Internet ¶{p. 374}threatens the separation of powers, according to which the authority of the State is divided into three branches, a legislator, an executive, and a judiciary, which mutually check and balance each other [42] . This concentration of the powers in the hands of private entities [43] led some authors to compare the regulation of speech at the platforms to a new form of feudalism [44] .

These trends have demonstrated that the platforms cannot be considered solely in the context of the private realm. Indeed, the Supreme Court of the United States also acknowledged in 2017 in the case of Packingham v. North Carolina, viewing social platforms as “modern public square”, they are “perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard” [45] . Silhouetting the online form of a State, social platforms have posed us a question whether they would be considered as a legal order in the ecosystem of inter-legality. As the inter-legal approach “does not itself decide what counts as a legal order” [46] we use the approach to explain the legal relations between the platforms, national regulators and international law as well as to demonstrate the usefulness of the approach in (quasi-) judicial decision-making.