Information Note on the Court’s case-law 254
August-September 2021
Sanchez v. France - 45581/15
Judgment 2.9.2021 [Section V]
Article 10
Article 10-1
Freedom of expression
Conviction of a local councillor for failing to take prompt action in deleting illegal comments by others on the wall of his Facebook account, which was freely accessible to the public and used during his election campaign: no violation
Facts – The applicant, at the time a local councillor and a candidate in parliamentary elections, was convicted in criminal proceedings of incitement to hatred or violence against a group of people or an individual on the grounds of their membership of a specific religion, following his failure to take prompt action in deleting comments posted by others on the wall of his Facebook account, which was freely accessible to the public and used during his election campaign.
Law – Article 10: The applicant’s criminal conviction had constituted an interference with the exercise of his right to freedom of expression, had been prescribed by a law that was foreseeable as to its effects, and had pursued the legitimate aim of protecting the reputation or rights of others.
(a) Context of the comments
(i) Nature of the comments in issue – The comments had been clearly unlawful. The domestic courts had established, in reasoned decisions, that, on the one hand, the comments had 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, on account of both its meaning and its scope, 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 in the comments 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.
The comments had been posted on the wall of a Facebook account that was freely accessible to the public and used in connection with an election campaign, as a means of expression designed to reach the electorate in the broad sense, and hence the entire population.
The language used in the offending comments posted by S.B. and L.R., who, moreover, were not themselves politicians or active members of a political party speaking on its behalf, had amounted to clear incitement to hatred and violence against a specific person on account of her membership of a particular religion, a fact that could not be camouflaged or minimised by the electoral context or the desire to address local issues.
(ii) The applicant’s responsibility for comments posted by others – The applicant’s status as an elected representative could not be regarded as a circumstance mitigating his responsibility.
Furthermore, the applicant had not been criticised for making use of his right to freedom of expression, particularly in the context of political debate, but had been accused of a lack of vigilance and responsiveness in relation to certain comments posted on the wall of his Facebook account.
F.P. had precisely been one of the applicant’s political opponents and the facts were to be viewed against a particular local political background, with clear tensions both within the population, as could be seen from the comments in issue, and also between the protagonists.
(b) Steps taken by the applicant – Since it could not be established that the applicant had been informed of the content of the comments before they had been posted, the courts had examined his conduct solely with reference to the period after their publication.
– The applicant had knowingly made the wall of his Facebook account public, thereby allowing his friends, a total of 1,829 people, to post comments there. He had thus been under a duty to monitor the content of the statements published. In addition, he could not have been unaware that his account was likely to attract comments of a political nature, which by definition were polemical and should therefore have been monitored even more carefully by him.
– The comments directed at L.T. had been promptly deleted by their author, less than twenty-four hours after being posted. Accordingly, even assuming that the applicant had in fact had the time and opportunity to become aware of them beforehand, to require him to have intervened even more rapidly, in the absence of any evidence from the domestic authorities that such a requirement existed in the particular circumstances of the case, would amount to demanding an excessive and unrealistic degree of responsiveness.
– The comments by L.R. had still been visible some six weeks after being posted. Public access to the applicant’s Facebook wall had not been removed until approximately three months after the events. Admittedly, two days after the events, the applicant had posted a message on his wall encouraging users to “monitor the content of [their] comments”, but had not deleted the offending comments, and – in the light of his statements that he had been unaware of the comments by L.R. before he had been taken in for questioning by the gendarmes – had not taken the trouble to check, or have someone else check, the content of the comments accessible to the public at that time.
– There was a shared responsibility between the holder and the operator of a social media account. The Facebook terms of use had specified that hateful content was banned, and by accessing the social network in question, all users accepted that rule.
(c) Possibility of holding the authors of comments responsible – The applicant had been held responsible in his capacity as producer of an online public communication site on which messages posted by users were made available to the public; his responsibility was engaged in particular as a result of his failure to delete unlawful messages as soon as he had become aware of them. Although he was regarded by law as the “author” and criminal penalties had been imposed on him on that account by the domestic courts, the applicant had in fact been accused of different conduct from that of the other users who had posted the comments – who, moreover, had also been convicted. In the Court’s view, it was legitimate to consider that the status of the owner of the wall of a Facebook account entailed specific obligations, particularly where, as in the applicant’s case, the owner decided not to make use of the option of limiting access to the wall, instead choosing to make it accessible to anyone. That finding was particularly relevant in a context where clearly unlawful statements were likely to be published, as in the present case.
Admittedly, domestic law and practice should establish a clear distinction between the responsibility of the author of statements constituting hate speech and the potential responsibility of any media outlets and professionals contributing to their dissemination while performing their task of imparting information and ideas on matters of public interest. In the present case, however, the comments had been clearly unlawful and, moreover, in breach of the Facebook terms of use.
(d) Consequences of the domestic proceedings for the applicant – The applicant had been ordered to pay a fine of 3,000 euros, which was not disproportionate, bearing in mind the sentence he could have faced and the lack of any other established consequences for him.
Accordingly, in the specific circumstances of the case, the domestic courts’ decision to convict the applicant had been based on relevant and sufficient reasons, having regard to the margin of appreciation afforded to the respondent State. The interference complained of could therefore be seen as “necessary in a democratic society”.
Conclusion: no violation (six votes to one).
(See also Féret v. Belgium, 15615/07, 16 July 2009, Legal summary; Delfi AS v. Estonia [GC], 64569/09, 16 June 2015, Legal summary; Pihl v. Sweden (dec.), 74742/14, 7 February 2017, Legal summary; Atamanchuk v. Russia, 4493/11, 11 February 2020, Legal summary; and Kilin v. Russia, 10271/12, 11 May 2021, Legal summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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