Article in ITA in Review: Freedom of Speech as the Media Firm's Proxy for Investment Claims

by Larissa Barhebréus

Published:

Hands holding a phone.

Governments across the globe are tightening control over digital media platforms, and the regulatory tools they are using have shifted markedly. The EU's Digital Services Act now targets not only illegal content but platform design itself, with the European Commission's preliminary finding against TikTok over allegedly addictive design features marking a new frontier of enforcement. Nigeria's NITDA Code mandates content takedowns within 48 hours with no appeal mechanism; India's amended IT Rules require removal of unlawful content within three hours and expose non-compliant platforms to civil and criminal liability by stripping their safe-harbour protection; and in the US, the Supreme Court's decisions in Moody v. NetChoice and TikTok Inc. v. Garland show how speech, editorial discretion, and national security concerns are colliding in litigation over platform regulation.

In her latest article, Schjodt's Senior Associate Larissa Barhebreus asks what this fragmented and increasingly volatile regulatory landscape means for media investors seeking redress — not through domestic courts or human rights bodies, but through investment treaty arbitration. While freedom of speech is not a standalone right under investment treaties, the article shows how it can function as an interpretive backdrop: informing how tribunals assess fair and equitable treatment, legitimate expectations, and indirect expropriation when states impose abrupt licence revocations, content controls, or platform bans. Drawing on arbitral precedent, the article also examines the threshold question of whether a media platform's assets — often intangible, relational, and borderless, such as user agreements, data, and advertising revenue — can qualify as a protected "investment" in the first place.

What this means for clients. For media, technology, and platform businesses operating across multiple jurisdictions, this analysis points to a strategic option that is often overlooked: where domestic regulatory intervention is abrupt, discriminatory, or procedurally unfair, investment treaty arbitration may offer a route to compensation that sits outside — and does not depend on — a freestanding human rights claim. Clients with cross-border media or platform operations should:

  • Map their corporate structure against applicable investment treaties before a dispute arises, since treaty protection typically depends on how and where the investment is structured;
  • Document the regulatory assurances and conditions relied on at the time of investment, since legitimate expectations are assessed against that baseline;
  • Treat abrupt content-moderation mandates, design-related enforcement (as in the TikTok/DSA case), or licence actions as potential treaty triggers, not just compliance issues; and
  • Recognise that this is a developing and contested area — tribunals remain cautious about being drawn into adjudicating speech policy directly, and awards touching on politically sensitive regulation carry real risk of controversy and pushback on legitimacy grounds.

Read the full article here: https://itainreview.org/articles/2025/Vol7/Issue3/freedom-of-speech-as-the-media-firms-proxy-for-investment-claims.html

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