Content Moderation, Content Regulation / Censorship, Hate Speech
Themel v. Facebook Ireland
On Appeal Contracts Expression
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The Fifth Section of the European Court of Human Rights held that the conviction of a politician for failing to promptly delete unlawful comments published by third parties on the public wall of his Facebook account did not breach his Article 10 rights despite his apparent lack of knowledge of the comments. The application was filed by Julien Sanchez, a local elected representative and candidate in the legislative elections, who was convicted for incitement to hatred or violence against the people of the Muslim faith. While the Court stressed the importance of protecting freedom of expression in the context of political debate, it found “the French courts’ decision to convict Mr Sanchez had been based on relevant and sufficient reasons linked to his lack of vigilance and responsiveness” in monitoring his page for comments that could violate community standards or be unlawful.
The Grand Chamber affirmed this judgment in May 2023.
This post was originally published by Inforrm’s Blog and is adapted for the Global Freedom of Expression Case Law database with permission and thanks.
The applicant, Julien Sanchez, was standing for election to Parliament for the Front National (FN) in the Nîmes constituency. One of his political opponents, FP, was an MEP and first deputy to the mayor of Nîmes.
On October 24, 2011, Mr Sanchez published a post about FP on the wall of his publicly accessible Facebook account which he managed “While the FN has launched its new national website on schedule, spare a thought for the Nîmes UMP MEP [FP], whose site, which was supposed to be launched today, is displaying an ominous triple zero on its home page …”.
Another user, SB, wrote the following comment: “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 …. Thanks UMPS [amalgam of UMP and Socialist Party], at least that saves us on the flights and hotel … I love this free version of Club Med … Thanks [F.] and kisses to Leila ([L.]) … Finally, a blog that changes our life …” A further user, LR, added three other comments directed at Muslims.
When FP’s partner, LT, became aware of these comments she complained to SB who immediately removed his comment. Mr Sanchez, SB and LR were summoned to appear before the Nîmes Criminal Court in connection with the publication of the comments in question on the wall of the applicant’s Facebook account, to answer charges of incitement to hatred or violence against a group of people, on the grounds of their origin or their membership or non-membership of a specific ethnic group, nation, race or religion.
On February 28, 2013, the Criminal Court found Mr Sanchez, SB and LR guilty as charged and ordered each of them to pay a fine of €4,000, SB and Mr Sanchez were also ordered, jointly and severally, to pay the sum of €1,000 to LT, the civil-party claimant, in compensation for non-pecuniary damage.
The court concluded that having set up a public communication service by electronic means on his own initiative for the purpose of exchanging opinions, and having left the offending comments still visible as of December 6, 2011, Mr Sanchez had failed to act promptly in stopping their dissemination and was therefore guilty as the “producer” of an online public communication site, and hence as the principal offender.
Mr Sanchez appealed but the Nîmes Court of Appeal upheld the guilty verdict. The Court of Cassation dismissed his appeal. On September 15, 2015, he lodged an application with the Court of Human Rights, alleging breach of Article 10.
The judgment was delivered by J. O’Leary, J. Mits, J. Yudkivska, J. Mourou-Vikström, J. Jelić, J. Bårdsen, J. Guyomar and Soloveytchik of the Fifth section of European Court of Human Rights. The central issue for consideration was whether the applicant was for liable for the comments posted by the third party.
The Court found there was clearly an interference with the applicant’s Article 10 rights. This was “prescribed by law” [para. 69 to 73] and for a “legitimate aim” [para. 74].
In relation to the question as to whether the interference was “necessary in a democratic” society, the Court began by referring to the well established principles relating to freedom of expression. In considering whether the sanction was proportionate it considered: the context of the comments, the measures employed by the applicant to remove the comments, the possibility of holding the authors responsible and the consequences of the procedure for the authors.
Context of the Comments
The court first noted that the comments were clearly unlawful [para. 81]. The comments clearly defined the group of people concerned, namely those of Muslim faith, and that the association of the Muslim community with crime and insecurity in the city of Nîmes by equating that group with “drug dealers and prostitutes” who “reign supreme”, “scum who sell drugs all day long” or those responsible for “throwing stones at white people’s cars”, was likely to arouse a strong feeling of rejection or hostility towards the group of people of Muslim faith, or those who were perceived as such; and on the other hand, that the expression “Kisses to [L.]”, referring to L.T., who was associated with F.P., the deputy to the mayor of Nîmes who had been portrayed as instrumental in giving the city over to Muslims and hence to insecurity, had been such as to link L.T., on account of her perceived membership of the Muslim community (by virtue of her first name), with the transformation of the city, and thus arouse hatred and violence against her [para. 81].
Although the comments were made in the electoral context, freedom of political discussion is not absolute [para. 84].
“tolerance and respect for the equal dignity of all human beings constitute the foundation of a democratic and pluralist society. It follows that in principle it may be deemed necessary, in democratic societies, to sanction, or even prevent, all forms of expression which propagate, encourage, promote or justify hatred based on intolerance (including religious intolerance)” [para. 85].
In the electoral context the impact of racist and xenophic discourse is potentially more damaging [para. 87].
The applicant was not being criticised for using his right to freedom of expression in political debate but for his lack of vigilance [para. 90].
Measures applied by the applicant
The court observed that the Nîmes Criminal Court had found that the applicant, who on his own initiative had set up a communication service open to the public, had left the offending comments visible for some six weeks after they had been posted, without taking prompt action to stop their dissemination.
The Nîmes Court of Appeal, upholding the first-instance judgment, had pointed out that, in his capacity as an elected representative and public figure, the applicant had knowingly made the wall of his Facebook account public, thus allowing his friends to post their comments there, and in doing so had assumed responsibility for the content of the statements published. It had held that the applicant had not acted promptly to stop the dissemination of the comments in question and that he had also justified his position by saying that in his view, such comments were compatible with freedom of expression, and had therefore deliberately left them on his Facebook wall.
The court noted that there was undoubtedly a shared responsibility between the holder of an account on a social network and the operator. Reliance was placed on the CJEU decision in the case of Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein v Wirtschaftsakademie Schleswig-Holstein GmbH [para. 98].
Possibility of holding the authors responsible
Although the authors of the comments were identified, the applicant was accused of distinct wrongdoing. The domestic courts characterized the facts establishing the responsibility of the applicant who was prosecuted because of a particular behavior, directly linked to his status as the holder of the wall of his Facebook account.
“For the Court, it is legitimate that such a status entails specific obligations, in particular when, like the applicant, the holder of the wall of a Facebook account decides not to make use of the possibility offered to him. to limit access, choosing on the contrary to make it accessible to all” [para. 100].
Consequences of the domestic procedure for the applicant
The applicant had been ordered to pay a fine of €3,000. Bearing in mind the sentence he could have faced and the lack of any other established consequences, the interference with the applicant’s right to freedom of expression was disproportionate. In the specific circumstances of the case, the Court found that the domestic courts’ decision to convict the applicant on account of his failure to take prompt action in deleting the unlawful comments posted by others on the wall of his Facebook account, which was used in connection with his election campaign, had been based on relevant and sufficient reasons, having regard to the margin of appreciation afforded to the respondent State. Accordingly, the interference complained of could be seen as “necessary in a democratic society” [para. 104]. There had therefore been no violation of Article 10.
Dissenting Opinion of Judge Mouru-Vikström
Judge Mouru-Vikström drew attention to the fact that, in the leading case of Delfi AS v. Estonia ( ECHR 586) the Grand Chamber drew a distinction between large news portals operated for commercial purposes (such as Delfi) and other types of Internet forums likely to publish comments from users or social media platforms where the provider does not produce any content and where the content provider can be an individual administering a site or blog as part of his leisure time [para. 115-116].
It was clear that the applicant’s Facebook account could fall into the second category but the majority had not explained why this framework but not apply. She argued that, at the very least, the reasons for which the Chamber judgment departs from the framework laid down by the Delfi judgment should have been explained by the majority. She concluded “The finding of no violation of Article 10 of the Convention places on the account holder a very heavy duty of control, since criminal proceedings against him are at stake. There is a risk that such a fear will transform the account, making the account holder as a real controller, and even as a censor of the words written on his wall”.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This reasoning of the majority, in this case, is difficult to follow. It demonstrates the European Court of Human Right’s willingness to approve sanctions on those associated with hate speech, even where the context is political debate and this arises in a political context and the person sanctioned is not the speaker.
It was not suggested that the applicant was aware of the comment of SB and allowed it to remain on the Facebook page. It seems wholly disproportionate to impose liability on the holder of the Facebook account in those circumstances. The general obligation to monitor which the domestic courts placed on the applicant is inconsistent with EU law (particularly Article 15 of the E-Commerce Directive) and with the approach of the ECtHR itself in Delfi and subsequent cases such as MTE and Index.hu Zrt v. Hungary ( ECHR 135). Should the Grand Chamber agree to a referral it seems unlikely that the decision will be upheld.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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