<i>Sanchez v France</i> : ECtHR judgment raises questions about politician’s liability to moderate his own Facebook ‘wall’

ABSTRACTA politician was fined for not removing Islamophobic comments posted by third parties on his public Facebook ‘wall’. Whereas the Court had previously given special protection to political debate, it now found that the impact of racist and xenophobic discourse was greater and more damaging in the context of elections and that, as a politician, Mr Sanchez should have been more vigilant in the removal of illegal comments. The judgment has raised concerns about over-censorship and the possibility of third parties deliberately posting illegal content to harm a politician’s online presence. However, the ruling does not address such a situation.KEYWORDS: Freedom of expressionhate speechinternetliabilitypolitician Disclosure statementNo potential conflict of interest was reported by the author(s).Notes1 ‘While the FN has launched its new national website on schedule, spare a thought for the Nîmes UMP [Union for a Popular Movement] MEP [FP], whose site, which was supposed to be launched today, is displaying an ominous triple zero on its homepage’ (translation of the ECtHR judgment).2 The comment read: This BIGWIG has turned NIMES into ALGIERS, there’s not a street without a KEBAB SHOP and MOSQUE; DRUG DEALERS AND PROSTITUTES REIGN SUPREME, NO SURPRISE HE’S CHOSEN BRUSSELS CAPITAL OF THE NEW WORLD ORDER OF SHARIA … CHEERS UMPS [amalgam of UMP and PS, Socialist Party], AT LEAST WE DON’T HAVE TO PAY FOR THE FLIGHTS AND HOTEL … JUST LOVE this free version of CLUB MED … Thanks FRANCK and KISSES TO LEILLA … AT LAST, A BLOG [sic] THAT CHANGES OUR LIFE. (translation)3 The relevant comments read: ‘Shisha bars all over the town centre and veiled women … Look what’s become of nimes [sic], the so-called roman [sic] city … The UMP and the PS are allies of the muslims [sic]’. Drug trafficking run by the muslims [sic] rue des lombards, it’s been going on for years … even with CCTV in the street … more drug dealing in plain sight on avenue general leclerc where riffraff sell drugs all day long but police never come and even outside schools, stones get thrown at cars belonging to ‘white people’ route d’arles at the lights all the time … nimes [sic], insecurity capital of languedoc roussillon.Councillor for economic devellopment [sic] lol hallal [sic] economic devellopment [sic] boulevard gambetta and (islamic) [sic] republic street.4 Sanchez v France, App no 45582/15 (ECtHR, 15 May 2023).5 Sanchez v France App no 45581/15 (ECtHR, 2 September 2021).6 ibid para 124. See also references to NIT S.R.L. v the Republic of Moldova App no 28470/12 (ECtHR, 5 April 2022) para 158; Satakunnan Markkinapörssi Oy and Satamedia Oy v Finland App no 931/13 (ECtHR, 27 June 2017) para 142; Delfi AS v Estonia App no 64569/09 (ECtHR, 16 June 2015) para 120.7 Sanchez, ibid para 125 with reference to Magyar Kétfarkú Kutya Párt v Hungary App no 201/17 (ECtHR, 20 January 2020) para 94, with further references.8 Sanchez, ibid para 125 with references to Satakunnan Markkinapörssi Oy et Satamedia Oy (n 6), para143; Delfi AS (n 6) para 121; Lindon, Otchakovsky-Laurens and July v France App no 21279/02 and 36448/02 (ECtHR, 22 October 2007) para 41.9 Sanchez, ibid para 128 with references to NIT S.R.L. (n 6) para 160; Radomilja and Others v Croatia App no 37685/10 and 22768/12 (ECtHR, 20 March 2018) para 149; Centre for Democracy and the Rule of Law v Ukraine App no 10090/16 (ECtHR, 26 March 2020) para 108, with further references.10 Sanchez, ibid para 145.11 ibid para 146 with references to Tête v France App no 59636/16 (ECtHR, 26 March 2020) para 63; Willem v France App no 10883/05 (ECtHR, 16 July 2009) para 32; Mamère v France App no 12697/03 (ECHR, 7 November 2006) para 20; Lingens v Austria App no 9815/82 (ECHR, 8 July 1986) para 42.12 Sanchez, ibid para 148–49.13 ibid para 150–53, 176.14 ibid para 150.15 ibid para 156.16 ibid paras 158–62.17 ibid, paras 169–78.18 ibid, paras 179–94 and 200.19 ibid, para 196.20 ibid, para 197.21 ibid, paras 202–204.22 ibid, para 205 with references to Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v Hungary App no 22947/13 (ECtHR, 2 February 2016) para 86; Pihl v Sweden App no 74742/14 (ECtHR, 9 March 2017) para 35.23 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) (2000) OJ L178/1.24 For more details on this and ECtHR practice on third-party comments, see Päivi Korpisaari, ‘From Delfi to Sanchez – When can an Online Communication Platform be Responsible for Third-party Comments? An Analysis of the Practice of the ECtHR and Some Reflections on the Digital Services Act’ (2022) 14 Journal of Media Law 352.25 See Delfi (n 6) para 128.26 Additional Protocol to the Convention on Cybercrime concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems (2003) ETS 189. See also Acts adopted under title VI of the EU treaty council framework decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law (2008) OJ L328/55.27 Joint dissenting opinion of judges Wojtyczek and Zünd.28 Dissenting opinion of judge Ravarani.29 Dissenting opinion of judge Bošnjak.30 Koen Lemmens, ‘Freedom of Expression on the Internet after Sanchez v France: How the European Court of Human Rights Accepts Third-party “Censorship”’ (2002) 3 European Convention on Human Rights Law Review 525, pp. 532–33. See also Jacob van de Kerkhof, ‘Sanchez v France: The Expansion of Intermediary Liability in the Context of Online Hate Speech (Strasbourg Observers, 17.7.2023). According to Kerkhof the Comments were ‘Not so Clearly Unlawful that an Uninformed Individual – Such as a Person Monitoring their Facebook Profile – would be Able to Spot their Unequivocal Unlawfulness’. <https://strasbourgobservers.com/2023/07/17/sanchez-v-france-the-expansion-of-intermediary-liability-in-the-context-of-online-hate-speech/> accessed 15 September 2023.31 See Korpisaari 2022 (n 24). The cases referred to are Włodzimierz Kucharczyk v Poland App no 72966/13 (ECtHR, 17 December 2015), Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v Hungary App No 22947/13 (ECtHR, 2 February 2016), Pihl v Sweden App no 74742/14 (ECtHR, 9 March 2017), Tamiz v United Kingdom App no 3877/14 (ECtHR, 19 September 2017) and Høiness v Norway App no 43624/14 (ECtHR, 19 March 2019).32 See, for example, Glimmerveen and Hagenbeek v the Netherlands App no 8348/78 and 8406/78 (ECtHR, 11 October 1979) where the application was deemed inadmissible, as the court found that Article 17 of the Convention disallowed the utilization of Article 10 to propagate racially discriminatory ideas, and Norwood v United Kingdom App no 23131/03 (ECtHR, 16 November 2004) where the application was deemed inadmissible because an expression that linked a religious group as a whole with a grave act of terrorism was incompatible with the ECHR’s values and the applicant could not rely on the protection of Article 10. See also Belkacem v Belgium App no 34367/14 (ECtHR, 27 June 2017).33 Written comment by Media Defence and Electronic Frontier Foundation (EFF, 8 April 2022) <https://www.eff.org/document/sanchez-v-france-eff-media-defence-ecthr-brief> accessed 22 September 2023.34 Sanchez (n 5) para 113. The Slovenian Government mentioned that the mayor of a Slovak town of 500 people had 1.5 million interactions on his Facebook page during one year.35 ibid para 200.36 See, for example, Saaristo v Finland App no 184/06 (ECtHR, 12 October 2010) para 68.37 Brasilier v France App no 71343/01 (ECtHR, 11 April 2006).38 See also Lemmens 2022 (n 30) 537–41, who ponders why it is more acceptable for journalists than politicians to provide a platform for discussion. See also Jersild v Denmark App no 15890/89 (ECtHR, 23 September 1994).39 Robert Spano, ‘Intermediary Liability for Online User Comments under the European Convention on Human Rights’ (2017) 17 Human Rights Law Review 665, p. 667.40 Spano 2017 (n 39) 667.41 For example, regarding Delfi, Spano 2017 (n 39) 676, 679 has emphasized that ‘the case is to some extent unique and unsuitable as a basis for broad interpretive conclusions over and above the facts presented by the case’.42 See also Spano 2017 (n 39) 679.Additional informationNotes on contributorsPäivi KorpisaariPäivi Korpisaari is Professor of Communication Law at the Faculty of Law, University of Helsinki. Her main fields of research are media and communication law, personal data protection, tort law, constitutional law, human rights law, and criminal law concerning“freedom of expression offences”.