European Court of Human Rights: Sanchez v. France
Human Rights Centre, Ghent University and Legal Human Academy
The European Court of Human Rights (ECtHR) has delivered a controversial judgment with regard to the criminal liability for posts on Facebook. It found that the criminal conviction of a politician for failing to promptly delete hate speech, posted by others, from his public Facebook account, did not violate the right to freedom of expression as guaranteed under Article 10 of the European Convention on Human Rights (ECHR).
The case concerned the criminal conviction of Julien Sanchez, a politician of the radical right-wing Rassemblement National (National Rally— RN), who was standing for election to Parliament. Together with the two authors of the offensive comments posted on his Facebook account, Mr Sanchez was prosecuted and convicted by the French courts for incitement to hatred or violence against a group of people or an individual on the grounds of their membership of a specific religion in application of la loi du 29 juillet 1881 (Law of 28 July 1881 on Freedom of the Press (article 23-24)) and la loi du 29 juillet 1982 sur la communication audiovisuelle (Law of 29 July 1982 on audiovisual communication (article 93-3)).
He was ordered to pay a fine of EUR 3000 as well as the sum of EUR 1 000 to the civil-party claimant, in compensation for non-pecuniary damage. Mr Sanchez’s conviction was based on his failure to take prompt action in deleting comments containing unlawful hate speech posted by others on the wall of his Facebook account. He was found guilty as the “producer” of an online public communication site, and hence as the principal offender. The cour d'appel de Nîmes (Nîmes Court of Appeal) found that the offensive comments had clearly defined the group of people concerned, namely those of Muslim faith, and that associating the Muslim community with crime and insecurity in the city of Nîmes was likely to arouse a strong feeling of rejection or hostility towards that group. Moreover, it held that by knowingly making his Facebook wall public, Mr Sanchez had assumed responsibility for the content of the comments posted and that his status as a political figure required even greater vigilance on his part. After the Cour de cassation (Court of Cassation) dismissed his appeal, Mr Sanchez lodged an application with the ECtHR, submitting that his conviction had been in breach of Article 10 ECHR.
Judge Mourou-Vikström dissented. She criticised the majority’s approach for not being sufficiently consistent with the ECtHR’s earlier case-law on the subject of liability of Internet intermediaries, and for imposing a too high a level of liability for users’ comments on a Facebook account. Most importantly, in her view, the judgment neglects the disclaimer in Delfi AS v. Estonia. The approach in Delfi AS v. Estonia only concerned the liability of a professionally managed Internet news portal, run on a commercial basis, and not "other fora on the Internet where third-party comments can be disseminated (..)’" According to the dissenting opinion, the approach and outcome in Sanchez v. France imposing strict liability on the holder of a Facebook account could lead to overbroad censoring of users’ comments on Facebook and could have a chilling effect on freedom of expression on the Internet.
This judgment is not final: at its meeting on 17 January 2022 the Grand Chamber panel of five judges decided to refer the case Sanchez v. France (application n° 45581/15) to the Grand Chamber of the European Court of Human Rights.
- Arrêt de la Cour européenne des droits de l’homme, cinquième section, rendu le 2 septembre 2021 dans l’affaire Sanchez c. France, requête n° 45581/15
- Judgment by the European Court of Human Rights, Fifth Section, in the case of Sanchez v. France, Application no. 45581/15, 2 September 2021
This article has been published in IRIS Legal Observations of the European Audiovisual Observatory.