The mythology of proportionality in judgments of the Court of Justice of the European Union on Internet and fundamental rights

Proportionality is the tool of choice for the EU Court of Justice’s review of measures affecting the enjoyment of fundamental rights. The use of proportionality is normally beneficial, as it ensures that public authorities pursue public policies without any avoidable waste of fundamental rights protection. In the field of internet-based activities, however, certain recurrent elements make proportionality unfit for the purpose. This article argues against the systematic recourse to the mythology of proportionality in the judgments of the Court of Justice of the EU.
Most instances of putative proportionality assessment are in fact window-dressing for pragmatic or policy-based arguments. The claim relies on a critical reading of the recent case law of the Court in internet-related disputes. Accordingly, it is preferable to abandon the proportionality test when certain factual conditions—which are commonplace in the digital milieu—prevail.