Case Summary and Outcome

The Grand Chamber of the European Court of Human Rights (ECtHR) dismissed the application brought by Mr Julien Sanchez against France for an alleged violation of Article 10 of the European Convention on Human Rights (ECHR) by reason of the criminal conviction imposed on him by France—after he failed to remove hateful comments on his Facebook “wall”. Mr Sanchez, a politician in France and a candidate in the legislative elections, had been fined—in a criminal procedure—by French courts for failing to remove from his Facebook wall comments made by third parties that were discriminatory and incited hatred or violence against the Muslim community. The applicant argued that the fine violated his right to freedom of expression by requiring him to bear the disproportionate burden of monitoring all comments posted at any time by other users on his open and public Facebook wall. Mr Sanchez applied to the European Court of Human Rights alleging a violation of Article 10. The Fifth Section of the European Court of Human Rights held that Mr Sanchez’s conviction, for failing to promptly remove unlawful comments posted by third parties on the public wall of his Facebook account, did not violate his rights under Article 10 of the ECHR. The Fifth Section of the Court held that the comments were manifestly unlawful because they discriminated against the Muslim community and that the sentence imposed by the French courts penalized him for his lack of control over a communication service open to the public which he had created on his own initiative. In that regard, it stressed that Mr Sanchez, as the owner of the wall of his Facebook account, had specific obligations to monitor and remove hateful comments. Finally, the Grand Chamber of the European Court of Human Rights held —in a 13-4 votation— that Article 10 of the Convention had not been violated because, although France had interfered with the applicant’s freedom of expression, the interference was lawful and necessary in a democratic society and pursued a legitimate aim. The Grand Chamber held that it was not disproportionate to attribute shared liability—in varying degrees —to all the actors involved, including Mr Sanchez in his capacity as owner of the Facebook wall, for failing to take action in relation to the discriminatory comments. The ECtHR highlighted that the duty to act reasonably, in light of the circumstances, was greater for the applicant in his capacity as a politician, and that Mr Sanchez was aware of the controversial comments posted on his social network.

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Facts

Mr Julien Sanchez was the mayor of Beaucaire, in the region of Occitanie (France), and was a candidate for the Nîmes’ Front National in the French parliamentary elections. In October 2011, he posted on his publicly accessible Facebook “wall” about F.P., one of his political opponents.

Among the many comments he received on his post, two users replied attacking F.P. and his wife, Leila T, with discriminatory comments against the Muslim community. The comments included expressions such as: “This great man has transformed Nîmes into Algiers”; “there is not a street without a kebab shop and mosque; drug dealers and prostitutes reign supreme, no surprise he chose Brussels, capital of the new world order of sharia.” [para. 15] Leila T filed a criminal complaint against Mr Sanchez and the two Facebook users that left the comments for their racist remarks.

After the complaint was lodged, Sanchez posted a new entry asking readers to be careful with the content of their comments, although he did not moderate the previous comments he received. Only one of the commentators deleted the comments he posted after he was confronted by F.P.’s wife. The French public prosecutor opened an investigation into these events and supported Leila T’s complaint. In this context, Mr Sanchez explained that he was “unable to monitor the large number of comments posted every week on the ‘wall’ of his Facebook account.” [p. 7]

Mr. Sanchez and the two users were summoned to appear before the Criminal Court of Nîmes to give their testimony for the alleged commission of incitement to hatred and discrimination under articles 23, 24, and 65 of the French law of 29 July 1881, and article 93 of the French law no. 82-652 of 29 July 1982. The Nîmes Criminal Court found the three people guilty on charges of incitement to hatred or violence against a group, and directed in particular against Leila T., on the grounds of her origin or her membership of a particular ethnic group, nation, race or religion. In relation to Sanchez, his criminal liability arose in his capacity as producer of a website intended for communication to the general public—including access to the comments posted by its users—for not having acted promptly to remove the comments in question when he became aware of them. Sanchez was ordered to pay a thousand-euro compensation to Leila T., with no sanction of electoral disqualification. The Criminal Court concluded that Sanchez was criminally liable given that he failed to act promptly to delete the harmful comments after becoming aware of their hatred or violent content. Hence, the Criminal Court held that Sanchez failed to act in order to end their dissemination. This reasoning was upheld by the Nîmes Court of Appeal.

Mr Sanchez further appealed his sentence to the French Court of Cassation alleging a violation of Article 10 of the European Convention on Human Rights (ECHR). To him the controversial comments did not reach the threshold of encouragement or incitement to discrimination, hatred or violence, as they were only hostile towards a group, and that freedom of expression cannot be restricted based on a risk of racism. The Court of Cassation dismissed his appeal.

In his application to the European Court of Human Rights, Sanchez noted that (i) he had been convicted as “producer” without ever being asked to remove the controversial comments, which lacked foreseeability in the conviction; (ii) the creators of the comments had been identified and convicted which should exclude his criminal liability; (iii) as Facebook, at that time, lacked the appropriate filtering options, it was too burdensome to impose a responsibility without it being considered censorship; (iv) his work as a politician required protection in order to foster a free discussion on political issues.

The French Government responded by acknowledging an interference with Mr Sanchez’s freedom of expression, which was prescribed by law, pursued legitimate aims, and was necessary in a democratic society to protect the rights of others, in accordance to Article 10 of the Convention. In its view, political debates were not exempted from this interference, and even more so in social media, where hate speech can be spread even more widely.

There were observations by third-party interveners. The Government of Slovakia noted that the criminal liability of politicians for hate speech in social media should be approached with caution. The Government of the Czech Republic asked the Court to clarify the different regimes of liability for the author of the content, the social media platform, and third parties. Media Defence and the Electronic Frontier Foundation observed that users of social media should not be forced to decide on the lawfulness of third-party posts on their accounts. The European Information Society Institute argued that liability should be shared between the authors of the remarks and others involved, through a graduated approach.

The Fifth Section of the European Court of Human Rights issued its judgment “Sanchez v. France“ on September 2, 2021, holding that the conviction of Mr. Sanchez , for failing to remove unlawful comments posted by third parties on his Facebook wall, did not violate his right to freedom of expression protected by Article 10 of the ECHR despite his claim of ignorance. The Court considered that there was indeed an interference with the applicant’s right to freedom of expression, but concluded that such a restriction was prescribed by law, pursued a legitimate aim and was necessary in a democratic society.

In its analysis, the Fifth Section of the Court held that the comments were manifestly unlawful because they discriminated against the Muslim community. It also clarified that the sentence imposed by the French courts did not challenge the applicant’s exercise of his right to freedom of expression, but rather his failure to control a communication service open to the public, which he had created on his own initiative. In this regard, the Court noted that the Nîmes Criminal Court had taken into account the fact that Mr Sanchez had left the offensive and discriminatory comments visible for several weeks after their publication, without taking immediate action to stop their dissemination.

In addition, the Court emphasized that Mr Sanchez had specific obligations in his capacity as the owner of the wall of his Facebook account—who chose not to make use of the possibility offered to him to restrict access to it, but instead to make it accessible to everyone. In these circumstances, the Court concluded that France had not violated the applicant’s right to freedom of expression.

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Decision Overview

The Grand Chamber of the European Court of Human Rights had to decide if the criminal conviction imposed on Mr Sanchez by the French judiciary—on account of the Islamophobic comments posted by two other Facebook users on his Facebook “wall”—, violated the applicant’s freedom of expression, enshrined in Article 10 of the ECHR.

As both parties agreed that there was an interference to the applicant’s freedom of expression, the Court went on to analyze whether that interference was lawful, if it pursued a legitimate aim, and if that interference was necessary in a democratic society.

First, the Court examined the lawfulness of the interference made by the French Government. For that, it had to analyze if the interference was prescribed by law in the terms laid out by Article 10, second paragraph of the ECHR —i.e., if the interference had a legal basis in domestic law and if such law was “accessible to the person concerned and foreseeable as to its effects” [p. 45], as it was established in NIT S.R.L. v. Republic of Moldova [GC], no. 28470/12, 5 April 2022; and Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, 27 June 2017.

According to the Court, the element of foreseeability does not entail that the consequence of the actions is foreseeable with absolute certainty since laws can be applied with a margin of discretion. The Court considered that “a margin of doubt in relation to borderline facts does not therefore by itself make a legal provision unforeseeable in its application.” [p. 46]

The Court agreed with the Fifth Section’s decision in its reasoning that section 23, first paragraph, and section 24, eighth paragraph, of the Law of 29 July 1881, and section 93-3 of Law no. 82-652 of 29 July 1982, met the requirement of foreseeability for the purposes of Article 10 of the Convention. The Court found that the definition of “producer” in such laws was consistent with the jurisprudence of the French Court of Cassation, which also allowed for the autonomous responsibility of this legal figure, and did not require previous notification, as alleged by the applicant.

In conclusion, the Court held that the French legislation “was formulated with sufficient precision, for the purposes of Article 10 of the Convention, to enable the applicant to regulate his conduct in the circumstances of the present case.” [p. 50]

Second, the Court found that, contrary to Mr Sanchez allegations, it was clear that the interference pursued by the French Government had the goal of protecting a legitimate aim, such as the reputation and rights of others, while also preventing disorder and crime.

Third, the Court examined whether the interference was necessary in a democratic society. The Court noted that, according to Feldek v. Slovakia, no. 29032/95, ECHR 2001-VIII, in the case of political speech there is little scope under Article 10 for it to be restricted, as it is a very important feature of a democratic society, and that the governmental margin of appreciation, in this case, was particularly narrow. However, the Court noted that “the freedom of political debate is not absolute in nature,” [p. 52] especially when it comes to the prevention of forms of expression that can promote or propagate hatred or violence.

The Court relied on the case Erbakan v. Turkey, no. 59405/00, 6 July 2006, to reiterate the responsibility of politicians in avoiding comments that might foster intolerance when speaking in public. Then, the Court added that Article 10 does not protect declarations that can arouse feelings of rejection or hostility towards a community (as said in Le Pen v. France (dec.), no. 45416/16, 28 February 2017). The Court declared that this applies too in the context of a political election.

Furthermore, the Court quoted the cases of Sürek v. Turkey (no. 1) [GC], no. 26682/95, ECHR 1999-IV, Le Pen v. France (dec.), no. 18788/09, 20 April 2010; Soulas and Others v. France, no. 15948/03,10 July 2008, and E.S. v. Austria, no. 38450/12, 25 October 2018, to highlight the broader margin of appreciation granted to states to assess the necessity when restricting freedom of expression in cases of remarks made to incite violence against one or many individuals. It also said that hate speech may take various forms: They are not always plainly aggressive remarks, but can include implicit statements that can be equally hateful as determined in Jersild v. Denmark, 23 September 1994, Series A no. 298, Le Pen, Soulas, Ayoub and Others v. France, and Smajić v. Bosnia and Herzegovina (dec.), no. 48657/16, 16 January 2018.

Subsequently, the Court analyzed the impact of hateful or discriminatory comments made on the internet and social media. It noted the many harmful risks that this content on the internet posed, and how hate speech can be rapidly disseminated. In order to strike a balance between the rights conferred by Article 10 and the harmful effects that hate speech on social media might have on the rights conferred by Article 8, the Court agreed on the possibility of imposing liability for defamatory speech as an effective remedy. In the case of liability for third-party comments on the Internet, “the nature of the comment will have to be taken into consideration, in order to ascertain whether it amounted to hate speech or incitement to violence, together with the steps that were taken after a request for its removal by the person targeted in the impugned remarks.” [p. 57] The Court referred to the cases of Pihl v. Sweden (dec.), no. 74742/14, 7 February 2017; Magyar Kétfarkú Kutya Párt v. Hungary [GC], no. 201/17, 20 January 2020; and Index.hu Zrt v. Hungary, no. 22947/13, 2 February 2016.

In order to analyze the necessity of the interference of the French government in the present case, the Court started by examining the context of the comments at issue. Given that the comments were directed to a specific group (i.e., Muslims) in an electoral context in a politician’s Facebook “wall”, the Court found that the comments were clearly unlawful. The Court stated that liability should be shared —in different degrees— between all the actors involved, including Mr Sanchez —even if the comments were posted by third parties. Otherwise, exempting producers from all liability “might facilitate or encourage abuse and misuse, including hate speech and calls to violence, but also manipulation, lies and disinformation.” [p. 61]

The Court continued by analyzing the steps taken by Mr Sanchez regarding the comments on his Facebook “wall”. It stated that account holders have to act reasonably and cannot claim any impunity in how they use their electronic resources. That obligation, the Court concluded, is higher for politicians, which have to be aware of the fact that they can reach wider audiences, and whose burden of liability is higher than that of a regular citizen. The Court stressed that Mr Sanchez was aware of the controversial comments made on his Facebook “wall”, as he made a post warning his contacts about it, but nevertheless failed to delete the contested comments, or checked their content.

The Court also dismissed the applicant’s submission regarding the unreasonableness of his prosecution instead of the comments’ authors. According to the Court, he failed to show the arbitrariness of section 93-3 of Law no. 82-652 of 29 July 1982, especially as he was not prosecuted instead of the authors, but alongside them in different autonomous legal regimes.

Consequently, by thirteen votes to four, the Court found that the French government’s interference was “necessary in a democratic society,” [p. 69] in accordance with Article 10 of the ECHR, as it was based on relevant and sufficient reasons to determine Mr Sanchez liability and his criminal conviction.

Concurring and dissenting opinions

In his dissenting opinion, Judge Ravarani argued that while he agreed with most of the Court’s reasoning, he could not vote in favor of the operative part of the judgment. In this respect, he remarked that he agreed with the conclusion on the lawfulness of the interference with the applicant’s right to freedom of expression, and in holding that the domestic courts did not commit any violation of Article 10 of the Convention in respect of the comments posted on the applicant’s Facebook “wall”.

However, he disagreed with extending the applicant’s liability in relation to the comments of user S.B., on the grounds that they were deleted by their author the day after they were posted, on 25 October 2011. Under this premise, the applicant cannot be reproached for not having removed a comment from a user who deleted it in less than 24 hours. On this point, the judge remarked that criminal law must be interpreted strictly and that the reasoning of the majority of the Grand Chamber amounts “to an unacceptable extension of a criminal incrimination by an international court which constantly repeats that it is not a court of fourth instance.” [p. 5]

Judge Bošnjak also issued a dissenting opinion as he did not believe that Mr Sanchez could be prosecuted as producer where the two authors of the comments were convicted. Judges Wojtyczek and Zünd issued a joint dissenting opinion as they did not think that the French government’s interference with Mr Sanchez’s freedom of expression met the foreseeability test.

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