GRAND CHAMBER
CASE OF SANCHEZ v. FRANCE
(Application no. 45581/15)
 
JUDGMENT
 
Art 10 • Freedom of expression • Elected politician fined in criminal proceedings for failing to delete, from his publicly accessible Facebook “wall” used for his election campaign, Islamophobic comments by third parties also convicted • Foreseeability of law • Duties and responsibilities of politicians using social networks for political and election-related purposes • Accentuated impact of hate speech causing greater harm in election period marked by tensions • Need for shared liability between all actors involved • Desirable implementation of minimum degree of moderation or prior filtering by host or account holder to identify and remove unlawful remarks within a reasonable time, even in absence of notification by injured party • Deliberate choice of applicant, experienced in public communication and having knowledge of digital platforms, to allow public access to account • Failure to act despite being informed of impugned comments • No question of account with potentially excessive traffic • Proportionality analysis by Court depending on level of responsibility of person concerned and degree of notoriety and representativeness • Proportionate criminal sentence
 
STRASBOURG
15 May 2023
 
This judgment is final but it may be subject to editorial revision. TABLE OF CONTENTS
PROCEDURE
INTRODUCTION
THE FACTS
THE CIRCUMSTANCES OF THE CASE
RELEVANT LEGAL FRAMEWORK AND PRACTICE
I. DOMESTIC LAW
A. Freedom of the Press Act (Law of 29 July 1881)
B. Audiovisual Communication Act (Law no. 82-652 of 29 July 1982)
C. The legal regime applicable to the “producer”
1. The concept of “producer”
2. Establishing the liability of the “producer”
D. Other relevant domestic law material
1. Case-law of the Court of Cassation
2. Legislation subsequent to circumstances of present case
II. INTERNATIONAL MATERIAL
A. Communication on the Internet
1. Council of Europe
2. Other international sources
B. Hate speech
1. Council of Europe
(a) Committee of Ministers of the Council of Europe
(b) Parliamentary Assembly of the Council of Europe (PACE)
(c) European Commission against Racism and Intolerance (ECRI)
(d) Special Representative of the Secretary General on antisemitic, anti‑Muslim and other forms of religious intolerance and hate crimes
2. United Nations
(a) Human Rights Council
(b) Committee on the Elimination of Racial Discrimination
C. European Union law and case-law of the Court of Justice of the European Union (CJEU)
D. Comparative law material
III. TERMS OF USE OF SOCIAL NETWORK FACEBOOK
THE LAW
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
A. The Chamber judgment
B. The parties’ submissions
1. The applicant
2. The Government
3. Observations of third-party interveners
(a) The Government of Slovakia
(b) The Government of the Czech Republic
(c) Media Defence and the Electronic Frontier Foundation
(d) European Information Society Institute (EISi)
C. The Court’s assessment
1. Whether there has been an interference
2. Whether the interference was lawful
(a) General principles
(b) Application of those principles to the present case
3. Whether the interference pursued a legitimate aim
4. Whether the interference was necessary in a democratic society
(a) General principles
(b) Application of those principles to the present case
(c) Conclusion
OPERATIVE PROVISION
CONCURRING OPINION OF JUDGE KŪRIS
DISSENTING OPINION OF JUDGE RAVARANI
DISSENTING OPINION OF JUDGE BOŠNJAK
JOINT DISSENTING OPINION OF JUDGES WOJTYCZEK AND ZÜND

In the case of Sanchez v. France,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
 Georges Ravarani, President
 Marko Bošnjak,
 Gabriele Kucsko-Stadlmayer,
 Krzysztof Wojtyczek,
 Faris Vehabović,
 Egidijus Kūris,
 Branko Lubarda,
 Armen Harutyunyan,
 Georgios A. Serghides,
 Lətif Hüseynov,
 María Elósegui,
 Gilberto Felici,
 Erik Wennerström,
 Saadet Yüksel,
 Ana Maria Guerra Martins,
 Mattias Guyomar,
 Andreas Zünd, judges,
and Marialena Tsirli, Registrar,
Having deliberated in private on 29 June 2022 and 8 February 2023,
Delivers the following judgment, which was adopted on the latter date:
PROCEDURE
1. The case originated in an application (no. 45581/15) against the French Republic lodged with the Court on 15 September 2015 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mr Julien Sanchez (“the applicant”). 2. The applicant was represented by Mr D. Dassa-Le Deist, a lawyer practising in Paris. The French Government (“the Government”) were represented by Mr F. Alabrune and later by Mr D. Colas, Director of Legal Affairs at the Ministry of European and Foreign Affairs. 3. The applicant contended that there had been a violation of Article 10 of the Convention, on account of his criminal conviction for the offence of incitement to hatred or violence against a group or an individual on grounds of religion, following his failure to take prompt action to delete comments posted by third parties on the “wall” of his Facebook account. 4. The application was allocated to the Fifth Section of the Court (Rule 52 § 1 of the Rules of Court). On 9 January 2018 notice of the complaint under Article 10 of the Convention was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3. 5. On 2 September 2021 a Chamber of that Section composed of Síofra O’Leary, President, Mārtiņš Mits, Ganna Yudkivska, Stéphanie Mourou‑Vikström, Ivana Jelić, Arnfinn Bårdsen, Mattias Guyomar, judges, and Victor Soloveytchik, Section Registrar, delivered its judgment. It declared, unanimously, the application admissible and found, by six votes to one, that there had been no violation of Article 10 of the Convention. 6. On 29 November 2021 the applicant sought the referral of the case to the Grand Chamber and on 17 January 2022 the panel of the Grand Chamber accepted that request. 7. The composition of the Grand Chamber was then decided in accordance with Article 26 §§ 4 and 5 of the Convention and Rule 24. 8. Both the applicant and the Government submitted written observations on the merits of the case (Rule 59 § 1). 9. Observations were also received from the Slovak and Czech Governments, Media Defence, the Electronic Frontier Foundation and the European Information Society Institute, having been granted leave by the President of the Grand Chamber to submit written comments (Article 36 § 2 of the Convention and Rules 71 § 1 and 44 § 3).
10  A hearing took place in public in the Human Rights Building, Strasbourg, on 29 June 2022. There appeared before the Court:
(a)  for the Government
Mr T. Stehelin,  co-Agent;
 Mr B. Chamouard,  co-Agent;
 Mr J.-B. Desprez,
 Ms M. Blanchard,
 Ms P. Reparaz,
 Ms A. Roux, Advisers. (b)  for the applicant
Mr D. Dassa-Le-Deist,
 Mr S. Josserand, Counsel. The Court heard addresses by Mr Stehelin, Mr Dassa-Le Deist and Mr Josserand, and also their replies to questions from judges. INTRODUCTION
11. The application concerns, with regard to Article 10 of the Convention, the criminal conviction of the applicant, at the time a local councillor who was standing for election to Parliament, for the offence of incitement to hatred or violence against a group or an individual on grounds of religion, following his failure to take prompt action to delete comments posted by third parties on the “wall” of his Facebook account. THE FACTS
the circumstances of the case
12. The applicant was born in 1983 and lives in Beaucaire. 13. He has been the mayor of Beaucaire since 2014 and chairs the group of the Rassemblement national (a political party known as Front national (FN) until 2018) in the Regional Council of Occitanie. The website of Beaucaire town hall contains a page presenting the applicant on which it is also stated that in his “professional life” he was responsible for the “FN’s Internet strategy ... for 7 years”. At the time of the events at issue he was the Front national candidate for the Nîmes constituency in the French parliamentary elections. F.P., then a member of the European Parliament (MEP) and first deputy to the mayor of Nîmes, was one of his political opponents. 14. On 24 October 2011 the applicant wrote a post about F.P. on the publicly accessible “wall” of his Facebook account, which was administered by him personally, reading as follows (translation):
“While the FN has launched its new national website on schedule, spare a thought for the Nîmes UMP [Union for a Popular Movement] MEP [F.P.], whose site, which was supposed to be launched today, is displaying an ominous triple zero on its homepage ...”
15. Fifteen or so comments by third parties appeared in response to that post. Among them was that of S.B., who reacted on the same day by posting the following remarks on the applicant’s Facebook “wall” (translation):
“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 THAT CHANGES OUR LIFE ...” (sic)
16. Another reader, L.R., added the following three comments (translation):
“Shisha bars all over the town centre and veiled women... Look what’s become of nimes, the so-called roman city... The UMP and the PS are allies of the muslims.” (sic)
“Drug trafficking run by the muslims 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, insecurity capital of languedoc roussillon.” (sic)
“prout, councillor for economic devellopment lol hallal economic devellopment boulevard gambetta and (islamic) republic street.” (sic)
17. On the morning of 25 October 2011, F.P.’s partner Leila T. (who had apparently been designated by the forename “Leilla” in the comment by S.B. – see paragraph 15 above) became aware of the comments. Feeling directly and personally insulted by remarks that she described as “racist”, associating her forename, which “sounded North African”, with the policy of her partner, she immediately went to the hairdressing salon run by S.B., whom she knew personally. S.B., who had been unaware that the applicant’s Facebook “wall” was public, deleted his comment just after Leila T. left, as he subsequently confirmed when he was interviewed by the gendarmes. 18. On 26 October 2011 Leila T. wrote to the Nîmes public prosecutor to lodge a criminal complaint against the applicant, together with S.B. and L.R., on account of the offending comments published on the applicant’s Facebook “wall”. With her letter she attached screen shots as evidence of the comments. 19. On 27 October 2011 the applicant posted a message on the “wall” of his Facebook account asking contributors to “be careful with the content of [their] comments”, but without moderating the comments already posted. 20. Leila T. was interviewed by gendarmes on 6 December 2011. She stated that she had discovered the comments on the morning of 25 October 2011 when she was in the office of her partner F.P., MEP and first deputy to the mayor of Nîmes. She explained that their relationship was public knowledge and that the comments on the applicant’s publicly accessible Facebook “wall”, interspersed with racist remarks, associated her North African‑sounding forename with the name of her partner and his policies. After she had discovered the comments she had immediately gone to the hairdressing salon run by S.B. to express her indignation. According to her, S.B. had been very surprised and had clearly not been aware of the public nature of this Facebook “wall”, but he had confirmed he was talking about her when he wrote “Thanks Franck and kisses to Leilla”. She added that she had then been accompanied to the town hall by the Prefect’s wife, who was just passing by and who had seen how annoyed she was. On the way there she had logged onto Facebook again to find that S.B.’s comment had already been removed. An investigation into the applicant’s Facebook account revealed, on the same day, that the applicant’s original post and the comments by L.R. were still visible, while those posted by S.B. had indeed disappeared. 21. For his part, L.R. was identified by the gendarmes during their investigation as being an employee of the Nîmes municipality. When interviewed by the gendarmes on 23 January 2012 he stated that he had been working as an assistant in the applicant’s election campaign and denied that his comments had been racist or had incited racial hatred. Explaining that he had never intended to target Leila T. with his remarks, he said that in the meantime he had deleted the comments in which F.P. could have recognised himself or have been recognised by others. 22. During his interview on 25 January 2012, S.B. told the gendarmes that he had been unaware that the applicant’s Facebook “wall” was publicly accessible and had deleted his comment immediately after Leila T. had confronted him at his hairdressing salon. He added that he had informed the applicant later that day of his altercation with her. 23. On 28 January 2012 the applicant himself was also interviewed by the investigators. Recalling that he had previously been a candidate in Nîmes, standing against F.P., Leila T.’s partner, he explained that he had been unable to monitor the large number of comments posted every week on the “wall” of his Facebook account. He indicated in particular: that he had not been the author of the impugned comments; that S.B.’s comment had been deleted by its author before he had had the time to do so; that he had only become aware of L.R.’s comments when he was summoned to the gendarmerie, and was prepared to delete them if the courts so requested; that he consulted his Facebook “wall” every day, but did not often read the comments, which were too numerous given that he had more than 1,800 “friends” who could post comments twenty-four hours a day, and that he preferred to post content to inform his readers; that Leila T. had not been mentioned by name and he had discovered her forename only when she had filed a complaint; that Leila T. had once personally taken him to task at a polling station; that she should have telephoned him to ask him to delete the comments, which would have “spared her the trouble” of filing a criminal complaint, but that her aim had clearly been to destabilise his candidature, as he was standing against her partner; that instead, Leila T. had gone to the hairdressing salon of S.B., whom she knew, to insult and threaten him in front of witnesses; lastly, that he knew L.R. and S.B., who were activists in his party but not office holders. Referring to his own foreign origins, he added that he had never displayed any racism or discrimination against anyone, and that he did not perceive any call to murder or violence in the impugned remarks, which in his view remained within the limits of any citizen’s freedom of expression. He emphasised that he had removed public access to his Facebook “wall” a few days before this interview, in order to limit access only to those who chose to be his friends and to avoid any further incidents that were not of his making. After the interview, the investigators were able to confirm that the applicant’s Facebook “wall” was indeed no longer accessible to the public. 24. The applicant, together with S.B. and L.R., were summoned to appear before Nîmes Criminal Court in connection with the posting of the comments in question on the “wall” of his Facebook account, to answer charges of incitement to hatred or violence against a group, and targeting in particular Leila T., on account of their origin or of their belonging, or not belonging, to a specific ethnicity, nation, race or religion. The summons referred to section 23, first paragraph, section 24, eighth paragraph, and section 65-3 of the Law of 29 July 1881, and section 93-3 of Law no. 82-652 of 29 July 1982. 25. In a judgment of 28 February 2013 the Nîmes Criminal Court found the applicant, S.B. and L.R. guilty as charged and ordered each of them to pay a fine of 4,000 euros (EUR). The applicant was convicted under 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. S.B. and the applicant were also ordered jointly to pay EUR 1,000 to Leila T., as civil party, in compensation for the non-pecuniary damage she had sustained. However, the court did not see fit to impose the sanction of electoral disqualification that had been called for by the prosecution. 26. In its judgment, the court began by finding as follows:
“The remarks in question perfectly defined the group concerned, as can already be seen from the expressions: ‘The UMP and the PS are allies of the muslims’ and ‘Drug trafficking run by the muslims’, while associating the terms ‘Kebab’, ‘Mosque’, ‘Sharia’, ‘Shisha bars’, and ‘hallal economic devellopment’, complete the characterisation of the targeted group, as seen by the writers. To equate, in the same exchange, the members of the relevant group, i.e. ‘Muslims’, expressly with ‘drug dealers and prostitutes (sic)’ who ‘reign supreme (sic)’, ‘riffraff who sell drugs all day long’ or those responsible for the ‘stones [that] get thrown at cars belonging to white people’, was clearly likely, on account of both the meaning and scope of the words, to arouse a strong feeling of rejection or hostility towards a group of people, namely those of the Muslim faith, or presumed to be of that faith.”
27. The court further took the view that Leila T. could be regarded as having been provoked by the impugned comments, in view of the references to her partner, who was mentioned several times in the exchange, including in the quip “Thanks Franck and kisses to Leilla (sic)”, with the effect of portraying them both as being responsible for the alleged transformation of “Nimes into Algiers” and of arousing hatred or violence against them. 28. As regards the applicant, the court observed that it could be inferred from section 93-3 of Law no. 82-652 of 29 July 1982, as interpreted by the Constitutional Council in its decision of 16 September 2011, that the criminal liability of the producer of a website intended for communication to the general public, including access to comments posted by its users, would only be engaged in respect of such comments where it could be established that the producer had been aware of their content before they were posted, or otherwise where he or she had failed to act promptly to delete the comments at issue upon becoming aware of them. It dismissed the applicant’s argument that he had not had time to read the comments and that he had not been aware of those posted by S.B. and L.R., on the grounds that: first, comments could only be posted on his “wall” once he had given access to his “friends”, of which there were 1,829 at 25 October 2011, and he was responsible for verifying the content of the comments; second, he must have been aware that his “wall” was likely to attract comments with a political, and thus essentially polemical, content, and should have been all the more careful to monitor them. The court concluded that, having set up an electronic service for communication to the public on his own initiative, for the purpose of exchanging views, and having left the offending comments online – still being visible on 6 December 2011 according to the investigators – the applicant had failed to act promptly to put an end to their dissemination. It inferred that the applicant had to be “declared guilty as principal”. It found S.B. and L.R. guilty as accomplices in the offence committed by the applicant, explaining that their status in the proceedings had been debated at the hearing. 29. The applicant and S.B. appealed. The latter subsequently withdrew his appeal. 30. In a judgment of 18 October 2013 the Nîmes Court of Appeal upheld the convictions, while reducing the applicant’s fine to EUR 3,000. It further ordered him to pay Leila T. EUR 1,000 in costs for the appeal proceedings. 31. In its reasoning the Court of Appeal held that the Criminal Court had been correct in finding that the comments had perfectly defined the group concerned, namely Muslims, and that to associate the Muslim community with crime and insecurity in the town of Nîmes was likely to arouse a strong feeling of rejection or hostility towards that group. Noting that the legislation relied upon by the prosecution concerned discrimination against a person or group, it found as follows:
“... The legislative provision on which the charges are based refers to discrimination against a person or group. The expression ‘kisses to Leilla’, referring to [L.T.], and her connection with [F.P.], deputy mayor of Nîmes, who is described in the texts as having contributed to an abandonment of the town of Nîmes to the Muslims and thus to insecurity, is such as to associate her with the transformation of the town and thus to arouse hatred or violence against her; on the basis of these elements, the two texts in question constitute incitement to hatred or violence against a person, namely [F.P.]’s partner [L.T.], on account of a presumption, in view of her forename, that she belonged to a Muslim community. The offence provided for in section 24, eighth paragraph, of the Law of 29 July 1881 is thus made out ...”
32. Referring further to the provisions of section 93-3 of Law no. 82-652 of 29 July 1982 and to the facts of the case, the Court of Appeal ruled as follows:
“It is established and not in dispute that these two texts were published on the public ‘wall’ of [the applicant’s] Facebook account, by two of his friends, [S.B.] and [L.R.], on 24 October 2011. Section 93-3 of the Law of 29 July 1982, amended by the Law of 21 June 2004, provides that the criminal liability of the producer of a website intended for communication to the public, giving access to comments posted by users, will only be engaged, in respect of such comments, where it can be established that the producer had had knowledge of their content before they were posted, or otherwise where he or she failed to act promptly to delete the comments at issue upon becoming aware of them. In the present case, there is no evidence in the record that the applicant had been informed of the content of the comments before they were posted. However, [the applicant], as an elected member of the Front National and a public figure, had knowingly made his Facebook ‘wall’ public and had therefore authorised his friends to post comments on it. By thus acting, out of choice, he became responsible for the content of the comments posted thereon. His status as a politician required him to be all the more vigilant. He cannot claim not to have been aware of the remarks posted on his website on 24 October, especially as he stated during the investigation that he consulted it every day. He did not, however, remove the remarks, which were subsequently deleted by [S.B.] himself. Alerted by the latter to the reaction of the civil party, he did not delete [L.R.’s] comment either, and it was still visible on his website when consulted by the investigators on 6 December 2011. He cannot be regarded, as the court below rightly found, as having promptly put an end to the dissemination of the impugned comments. He legitimised his position by explaining that such comments appeared to him to be compatible with freedom of expression. The fact they were left on his ‘wall’ was therefore deliberate on his part. In the light of the foregoing, the court below was justified in finding the defendant guilty as charged and the judgment is upheld in respect of his guilt ...”
33. The applicant appealed on points of law to the Court of Cassation, relying in particular on Article 10 of the Convention. In a single ground of appeal, he argued: that, for the offence to be made out, the comments had to contain encouragement or incitement to discrimination, hatred or violence, and not merely give rise to a strong feeling of rejection or hostility towards a group or person; that the mere fear of a risk of racism could not deprive citizens of the freedom to express their views on the consequences of immigration in certain towns or neighbourhoods, the comments having specifically deplored the transformation of the town of Nîmes by immigrants of North African origin and of the Muslim faith; that the summons to appear before the court had been unlawful; and, lastly, that the impugned remarks had in no way targeted Leila T. personally and had been distorted in the Court of Appeal’s judgment. 34. In a judgment of 17 March 2015 the Court of Cassation dismissed his appeal on points of law, in particular with regard to Article 10 of the Convention, with the following reasoning:
“... first, the offence of incitement ... is made out where, as in the present case, the court finds that, by both their meaning and their scope, the impugned texts may arouse a feeling of rejection or hostility, hatred or violence, towards a group or an individual on account of a particular religion; ... second, since the above-mentioned text falls foul of the restrictions provided for in paragraph 2 of Article 10 of the European Convention on Human Rights, the principle of freedom of expression enshrined in paragraph 1 of that Article cannot be relied upon; ...”
RELEVANT LEGAL FRAMEWORK AND PRACTICE
DOMESTIC LAWFreedom of the Press Act (Law of 29 July 1881)

35. The relevant provisions, in the version of the Act that was applicable at the time of the acts for which the applicant was prosecuted, read as follows:
Section 23
“Anyone who, by uttering speeches, cries or threats in a public place or assembly, or by means of a written or printed text, drawing, engraving, painting, emblem, image, or any other written, spoken or pictorial item sold or distributed, offered for sale or exhibited in a public place or assembly, or by means of a placard or notice exhibited in a place where it can be seen by the public, or by any electronic means of communication to the public, has directly incited a perpetrator or perpetrators to commit a serious crime (crime) or other major offence (délit), and if the incitement has been acted upon, shall be punished as an accomplice in the said offence. This provision shall also be applicable where the incitement has been followed only by an attempt to commit a serious crime (crime) under Article 2 of the Criminal Code.”
Section 24 (eighth and tenth to twelfth paragraphs)
“... Anyone who, by one of the means referred to in section 23, has incited discrimination, hatred or violence against a person or group on account of their origin or of their belonging, or not belonging, to a given ethnicity, nation, race or religion, shall be liable to a one-year prison term and a fine of 45,000 euros, or only one of those two sanctions.
... Where a conviction is secured for one of the offences provided for in the two preceding paragraphs, the court may further order:
(1)  the deprivation of the rights listed in paragraphs 2 and 3 of Article 131-26 of the Criminal Code for a maximum of five years, save where the offender’s liability is engaged under section 42 and the first paragraph of section 43 hereof, or under the first three paragraphs of section 93-3 of Law no. 82-652 of 29 July 1982 on audiovisual communication;
(2)  the display or dissemination of the decision as provided in Article 131-35 of the Criminal Code;
...”
Audiovisual Communication Act (Law no. 82-652 of 29 July 1982)
36. Section 93-3 of Law no. 82-652 of 29 July 1982, inserted by Law no. 85-1317 of 13 December 1985, incorporated the so-called “cascading” liability system, as provided for in section 42 of the Freedom of the Press Act of 29 July 1881, into the field of audiovisual communication and subsequently that of “communication to the public by electronic means”. The section was amended by Law no. 92-1336 of 16 December 1992 concerning the entry into force of the New Criminal Code (inserting a reference to Article 121-7 of the Criminal Code, in the place of Article 60 thereof), by Law no. 2004-575 of 21 June 2004 on the promotion of confidence in the digital economy (confiance dans l’économie numérique), known as the “LCEN” Act (substituting the broader concept of “communication to the public by electronic means” for that of “audiovisual communication”) and by Law no. 2009‑669 of 12 June 2009 on the dissemination and protection of creation on the Internet, known as the “HADOPI I” Act. In the preparation of that 2009 legislation, a fifth paragraph was added to section 93-3, in line with an amendment proposed, first, with a view to “creating the status of online press publisher, accompanied by a tailored liability regime” and, secondly, to “concurrently adapt the regime of editorial liability of online communication services” (National Assembly, Amendment No. 201 Rect.):
“The regime of section 93-3 of the Law of 29 July 1982 presumes that the publication director is primarily liable for press offences committed through a publication thereby, via an online service for communication to the public, where the text in question has undergone ‘prior fixing’. This presumption would appear difficult to implement in the case of personal participation formats (discussion fora, blogs), involving contributions from, and the participation of, Internet users. It is therefore proposed that user contributions should give rise to a mitigated liability regime, irrespective of the type of moderation adopted, and that they should not engage the liability of the publication director as principal unless he or she had actual knowledge of the content made available to the public.”
37. Section 93-3 of Law no. 82-652 of 29 July 1982, as in force at the material time, read as follows:
“Where one of the offences provided for in chapter IV of the Freedom of the Press Act of 29 July 1881 is committed by an electronic means of communication to the public, the publication director or, in the situation provided for in the second paragraph of section 93-2 hereof, the publication codirector, shall be prosecuted as the principal, when the content of the impugned statement has undergone ‘prior fixing’ before being transmitted to the public. If not the above, the author, and failing which the producer, shall be prosecuted as principal. Where charges are brought against the publication director or codirector, the author shall be prosecuted as an accomplice. Any person to whom Article 121-7 of the Criminal Code is applicable may also be prosecuted as an accomplice. Where the offence stems from the content of a message addressed by an Internet user to an online service for communication to the public and made publicly accessible by that service in a forum of personal contributions identified as such, the publication director or codirector may not be held criminally liable as principal if it is established that he or she had no actual knowledge of the message before it was posted on line or if, upon becoming aware thereof, he or she acted promptly to ensure the deletion of the said message.”
The legal regime applicable to the “producer”The concept of “producer”

38. The Court of Cassation has clarified the concept of “producer”, adopting this characterisation for a person who has taken the initiative of creating an electronic communication service for the exchange of opinions on pre-defined topics (Court of Cassation, Criminal Division, 8 December 1998, published in the reports of judgments of the Criminal Division – “Bull. crim.” ‑, no. 335; see also the two leading judgments of 16 February 2010: Court of Cassation, Criminal Division, appeal no. 08-86.301, Bull. crim., no. 30, concerning the liability, as producer, of the managing director of a company operating a website, on account of the dissemination of a number of texts on a discussion forum; and Court of Cassation, Criminal Division, appeal no. 09‑81.064, Bull. crim., no. 31, concerning the liability, as producer, of the chair of an association for the dissemination of contentious statements on its blog). This definition of “producer” was endorsed by the Constitutional Council, which, in a decision of 16 September 2011 (see paragraph 40 below), observed:
“It follows from these provisions, as interpreted by the Court of Cassation in its judgments of 16 February 2010 ..., that a person who has taken the initiative of creating an online communication service for the exchange of opinions on pre-defined topics may be prosecuted in his or her capacity as producer.”
Establishing the liability of the “producer”
39. In its two judgments of 16 February 2010, cited above (see paragraph 38 above), the Court of Cassation further confirmed that, under section 93-3 of Law no. 82-652 of 29 July 1982, where an offence enumerated in Chapter IV of the Law of 29 July 1881 was committed by an electronic means of communication to the public, if not the author then the producer of the service would be prosecuted as principal, even if the statement had not undergone “prior fixing” before being transmitted to the public (Bull. crim., nos. 30 and 31). In addition, in one of those cases, the Court of Cassation quashed the judgment of a Court of Appeal which had acquitted the administrator of a blog, without ascertaining whether he could be prosecuted as producer, in proceedings concerning a comment posted thereon by a third party, even though that author had been identified (Court of Cassation, Criminal Division, 16 February 2010, appeal no. 09-81.064, Bull. crim., no. 31, and see also the further judgment in the same case, Court of Cassation, Criminal Division, 30 October 2012, appeal no. 10-88.825, Bull. crim., no. 233). In his report, the reporting judge at the Court of Cassation, when considering the questions raised in the examination of the first appeal on points of law (no. 09-81.064, giving rise to the judgment of 16 February 2010), expressed the following view on the question of the “autonomy of the proceedings”:
“Does this fluidity of roles in the chain of Internet actors permit the public prosecutor or the victim of a press offence to ‘choose’ the person to be prosecuted, out of those listed in section 93-3? Taken literally, section 93-3, like sections 42 and 43 of the 1881 Law, assigns a particular status to each actor (principal, accomplice), following a strict mechanism (‘if not...’ meaning ‘in the absence of...’, ‘failing which ..’, without the reasons for the absence being explained: unidentified person, immunity, deliberate passing-over of the previous level...). But the jurisprudence has long espoused a principle of ‘procedural autonomy’ whereby:
‘No statutory provision on freedom of the press requires proceedings first to be brought against the author of comments before proceedings can be brought against the publication director as principal or, under any status whatsoever, against other persons who may be criminally liable in accordance with sections 42 and 43 of that Law’ (see, for example, Court of Cassation, Criminal Division, 16 July 1992, no. 91-86.156; for other applications: Court of Cassation, Criminal Division, 20 January 1987, 20 October 2005, or Court of Cassation, First Civil Division, 12 July 2006).”
40. In addition, a preliminary reference on constitutionality (question prioritaire de constitutionnalité – QPC) was made to the Constitutional Council concerning the difference in treatment between, on the one hand, the publication director, the only actor to be mentioned in the last paragraph of section 93-3 inserted by Law no. 2009-669 of 12 June 2009, and on the other, the producer, who was not mentioned in that paragraph. In a decision of 16 September 2011 (no. 2011-164 QPC), the Constitutional Council declared section 93-3 of Law no. 82-652 of 29 July 1982 on audiovisual communication to be compliant with the Constitution, subject to the following interpretative reservation:
“7. Consequently, taking into account, on the one hand, the specific liability applicable to the publication director under the first and last paragraphs of section 93‑3 and, on the other, the characteristics of the Internet which, as the relevant rules and techniques now stand, allow the author of a comment disseminated on the Internet to preserve his or her anonymity, the provisions under review cannot, without establishing an irrebuttable presumption of criminal liability in breach of the aforementioned constitutional requirements, be interpreted as allowing the creator or administrator of an online website for communication to the public, rendering comments by Internet users publicly accessible, to be held criminally liable as producer solely on account of the content of comments of which he or she had no knowledge before they were posted online. Subject to that reservation, the provisions under review are not incompatible with Article 9 of the Declaration of 1789.”
41. In its case-law, the Criminal Division of the Court of Cassation subsequently drew the appropriate conclusions from the Constitutional Council’s decision of 16 September 2011 (see paragraph 40 above), in a judgment of 31 January 2012 (appeal no. 10-80.010, Bull. crim., no. 233; see also, in the same vein, Court of Cassation, Criminal Division, 30 October 2012, appeal no. 10-88.825):
“It can be inferred from section 93-3 of the Law of 29 July 1982 as amended, interpreted in line with the reservation set forth by the Constitutional Council in its decision QPC no. 2011-64 of 16 September 2011, that the criminal liability of the producer of a website intended for communication, including the public transmission of comments posted by its users, will only be engaged in respect of such comments if it can be established that the producer had knowledge of their content before they were posted or otherwise if he or she failed to act promptly to delete the comment at issue upon becoming aware thereof. It is thus decided to quash the judgment which declared the creator of an online discussion forum guilty of defamation, on account of the text posted on this personal‑contribution forum by a user, without ascertaining whether, in his capacity as producer within the meaning of the above-mentioned legislation, he had knowledge, prior to its posting, of the content of this message, or otherwise whether he had failed to delete the text promptly after becoming aware of it; ...”
Other relevant domestic law materialCase-law of the Court of Cassation

42. The Court of Cassation has ruled that the use of the Internet is covered by the formula “any electronic means of communication to the public” (Court of Cassation, Criminal Division, 6 May 2003, Bull. crim., no. 94; and Court of Cassation, Criminal Division, 10 May 2005, Bull. crim., no. 144), while developing case-law on the concept of “publicity”, which is established when the addressees are not linked to each other by a community of interest and the offending remarks are disseminated via a website accessible to the public (Court of Cassation, Criminal Division, 26 February 2008, appeal no. 07‑87.846, and 26 March 2008, appeal no. 07-83.672). It thus held that insults published on the Facebook “wall” of a defendant in criminal proceedings, which were accessible only to individuals approved by the defendant, constituted private and not public insults (Court of Cassation, Criminal Division, 10 April 2013, appeal no. 11-19.530). 43. The regime of “cascading liability”, which is to be applied when the publication director or author of remarks cannot be identified, does not exclude the autonomy of the proceedings, which allows proceedings to be brought against all those who are liable, when they are identified, or just one of those actors. Accordingly, the “cascading liability” regime and the principle of the autonomy of the proceedings apply without prejudice to each other. The Court of Cassation has thus taken the view, with regard to the principle of the autonomy of the proceedings, that no provision of the Freedom of the Press Act requires the prior prosecution of the author of the impugned remarks before proceedings can be brought against the publication director as principal or, under any status whatsoever, against other persons who may be criminally liable pursuant to that Act. In a judgment of 16 July 1992, the Criminal Division of the Court of Cassation thus expressly applied this principle in dismissing an appeal against the conviction by a Court of Appeal of the publication director of a periodical, as principal, together with the author of the article in question, as accomplice, for the offence of inciting discrimination, hatred or racial violence, as provided for in section 24 of the Law of 29 July 1881 (appeal no. 91-86.156, Bull. crim., no. 273). Moreover, in a judgment of 20 January 1987, the Court of Cassation similarly quashed the judgment of a Court of Appeal because it had annulled the summons by which civil parties had initiated the relevant proceedings on the grounds, inter alia, that they had not sought to prosecute the author of the article in question and had not specified on what basis the publication director was being prosecuted for the offence of inciting discrimination, hatred or violence against a group on account of their origin or of their belonging to a given ethnicity, nation, race or religion (appeal no. 84-94.444, Bull. crim., no. 30). 44. As regards the offence of incitement to hatred or violence, the Court of Cassation has consistently held that the comments in question must be such as to arouse immediate reactions from the reader, against the persons targeted, of rejection or even hatred and violence (Court of Cassation, Criminal Division, 21 May 1996, Bull. crim., no. 210), or that the courts must find that by both its meaning and scope, the text at issue may either arouse a feeling of hostility or rejection, or incite the public to hatred or violence against a specific person or group (Court of Cassation, Criminal Division, 16 July 1992, Bull. crim., no. 273; Court of Cassation, Criminal Division, 14 May 2002, appeal no. 01-85.482; Court of Cassation, Criminal Division, 30 May 2007, appeal no. 06-84.328; Court of Cassation, Criminal Division, 29 January 2008, appeal no. 07-83.695, and Court of Cassation, Criminal Division, 3 February 2009, appeal nos. 06-83.063 and 08-82.402). Certain remarks may also give rise to sanctions if their meaning is implicit (Court of Cassation, Criminal Division, 16 July 1992, Bull. crim., no. 273). Legislation subsequent to circumstances of present case
45. The “LCEN” Act (see paragraph 36 above) clarifies the conditions in which “hosts”, that is, “natural or legal persons which provide, even free of charge, with a view to transmission to the public via online communication services, the storage of signs, writings, images, sounds or texts of any kind provided by the recipients of such services”, such as Facebook, may be deemed to have had knowledge of offending messages. Hosts cannot be held civilly liable for activities or information stored at the request of a recipient of those services “if they did not have actual knowledge of their manifestly unlawful nature or of facts and circumstances indicating that nature or if, from the time they became aware of it, they acted promptly to remove the data or to render access thereto impossible”, “knowledge of the facts in issue [being] presumed” where the content in question had been notified to them beforehand as provided in section 5 of the Act. Section 6 of the “LCEN” Act provides, however, that hosts “are not producers within the meaning of section 93-3 of Law no. 82-652 of 29 July 1982 on audiovisual communication”. Furthermore, in a decision of 10 June 2004 (no. 2004‑496 DC), the Constitutional Council stated that the provisions of the Law of 21 June 2004 “[could] not have the effect of engaging the liability of a host which ha[d] not removed information that ha[d] been denounced as unlawful by a third party if it [was] not manifestly of such nature or if its removal ha[d] not been ordered by a court”. 46. Furthermore, Law no. 2020-766 of 24 June 2020, on the combat against hateful content on the Internet (and which was the subject of Constitutional Council decision no. 2020-801 DC of 18 June 2020, declaring numerous provisions to be unconstitutional) created an online hate “Observatory”. Its mission is to monitor and analyse developments in this area, by involving operators (in particular of social networks such as Facebook), associations, authorities and researchers concerned with the combat against and prevention of such acts. Working groups have been tasked with reflecting on the concept of hateful content, improving knowledge of this phenomenon, analysing the mechanisms of dissemination and the means of combating it, and with ensuring prevention, education and support for Internet users. 47. That Law also led to the creation, within the Paris tribunal judiciaire, of a specialised national unit for combating online hate, which started operating in January 2021. It exercises jurisdiction based on the complexity of a prosecution or the extent of a breach of public order, which may stem in particular from the high media profile or particular sensitivity of a given case (Circular of 24 November 2020 on the combat against online hate – CRIM 2020 23 E1 24.11.2020). 48. Lastly, Law no. 2021-1109 of 24 August 2021 on the securing of respect for the principles of the Republic, which includes a part concerning online hate speech, created a new offence to combat such hate speech (new Article 223-1-1 of the Criminal Code, which makes it an offence to reveal, disseminate or transmit, by any means whatsoever, information relating to the private, family or professional life of a person that makes it possible to identify or locate him or her in order to expose him or her, or his or her family members, to a direct risk of harm to their person or property of which the author could not have been unaware). It also imposed, ahead of the EU “Digital Services Act” (see paragraph 75 below), a new system for moderating illegal content on online platforms until the end of 2023 (procedures for dealing with judicial requests, public information about the moderation mechanism, risk assessment, etc.), under the supervision of an independent administrative authority, the Audiovisual and Digital Communications Regulatory Authority (ARCOM). INTERNATIONAL MATERIALCommunication on the InternetCouncil of Europe

49. The Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems was opened for signature on 28 January 2003 and entered into force on 1 March 2006. Articles 2 and 3 provide as follows:
Article 2 – Definition
“1. For the purposes of this Protocol:
‘racist and xenophobic material’ means any written material, any image or any other representation of ideas or theories, which advocates, promotes or incites hatred, discrimination or violence, against any individual or group of individuals, based on race, colour, descent or national or ethnic origin, as well as religion if used as a pretext for any of these factors.
...”
Article 3 – Dissemination of racist and xenophobic material through computer systems
“1. Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right, the following conduct:
distributing, or otherwise making available, racist and xenophobic material to the public through a computer system.
2  A Party may reserve the right not to attach criminal liability to conduct as defined by paragraph 1 of this article, where the material, as defined in Article 2, paragraph 1, advocates, promotes or incites discrimination that is not associated with hatred or violence, provided that other effective remedies are available.
...”
50. The Explanatory Report accompanying this Additional Protocol provides the following explanations:
“... 2. As technological, commercial and economic developments bring the peoples of the world closer together, racial discrimination, xenophobia and other forms of intolerance continue to exist in our societies. Globalisation carries risks that can lead to exclusion and increased inequality, very often along racial and ethnic lines. 3. In particular, the emergence of international communication networks like the Internet provide certain persons with modern and powerful means to support racism and xenophobia and enables them to disseminate easily and widely expressions containing such ideas.
... Article 2 – Definition
Paragraph 1 – ‘Racist and xenophobic material’
... 12. The definition contained in Article 2 refers to written material (e.g. texts, books, magazines, statements, messages, etc.), images (e.g. pictures, photos, drawings, etc.) or any other representation of thoughts or theories, of a racist and xenophobic nature, in such a format that it can be stored, processed and transmitted by means of a computer system. 13. The definition contained in Article 2 of this Protocol refers to certain conduct to which the content of the material may lead, rather than to the expression of feelings/belief/aversion as contained in the material concerned. ... 14. The definition requires that such material advocates, promotes, incites hatred, discrimination or violence. ‘Advocates’ refers to a plea in favour of hatred, discrimination or violence, ‘promotes’ refers to an encouragement to or advancing hatred, discrimination or violence and ‘incites’ refers to urging others to hatred, discrimination or violence.
... 16. Whether the treatment is discriminatory or not has to be considered in the light of the specific circumstances of the case. Guidance for interpreting the term ‘discrimination’ can also be found in Article 1 of the CERD [Convention on the Elimination of All Forms of Racial Discrimination], where the term ‘racial discrimination’ means ‘any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life’.
... 17. Hatred, discrimination or violence, have to be directed against any individual or group of individuals, for the reason that they belong to a group distinguished by ‘race, colour, descent or national or ethnic origin, as well as religion, if used as a pretext for any of these factors’.
... Article 3 – Dissemination of racist and xenophobic material in a computer system
27. This article requires States Parties to criminalize distributing or otherwise making available racist and xenophobic material to the public through a computer system. The act of distributing or making available is only criminal if the intent is also directed to the racist and xenophobic character of the material.
28.  ’Distribution’ refers to the active dissemination of racist and xenophobic material, as defined in Article 2 of the Protocol, to others, while ‘making available’ refers to the placing on line of racist and xenophobic material for the use of others. This term also intends to cover the creation or compilation of hyperlinks in order to facilitate access to such material.
... 31. Exchanging racist and xenophobic material in chat rooms, posting similar messages in newsgroups or discussion fora, are examples of making such material available to the public. In these cases the material is accessible to any person. Even when access to the material would require authorisation by means of a password, the material is accessible to the public where such authorisation would be given to anyone or to any person who meets certain criteria. In order to determine whether the making available or distributing was to the public or not, the nature of the relationship between the persons concerned should be taken into account.
...”
51. On 28 May 2003, at the 840th meeting of the Ministers’ Deputies, the Committee of Ministers of the Council of Europe adopted a Declaration on freedom of communication on the Internet. The relevant parts of the Declaration read as follows:
“Principle 7: Anonymity
In order to ensure protection against online surveillance and to enhance the free expression of information and ideas, member states should respect the will of users of the Internet not to disclose their identity. This does not prevent member states from taking measures and co-operating in order to trace those responsible for criminal acts, in accordance with national law, the Convention for the Protection of Human Rights and Fundamental Freedoms and other international agreements in the fields of justice and the police.”
52. In its Recommendation CM/Rec(2007)16 to member States on measures to promote the public service value of the Internet (adopted on 7 November 2007), the Committee of Ministers noted that the Internet could, on the one hand, significantly enhance the exercise of certain human rights and fundamental freedoms while, on the other, it could adversely affect these and other such rights. It recommended that the member States draw up a clear legal framework delineating the boundaries of the roles and responsibilities of all key stakeholders in the field of new information and communication technologies. 53. On 16 April 2014 Recommendation CM/Rec(2014)6 of the Committee of Ministers to member States on a Guide to human rights for Internet users was adopted. The relevant part of the Guide reads as follows:
Freedom of expression and information
“You have the right to seek, receive and impart information and ideas of your choice, without interference and regardless of frontiers. This means:
1.  you have the freedom to express yourself online and to access information and the opinions and expressions of others. This includes political speech, views on religion, opinions and expressions that are favourably received or regarded as inoffensive, but also those that may offend, shock or disturb others. You should have due regard to the reputation or rights of others, including their right to privacy;
2.  restrictions may apply to expressions which incite discrimination, hatred or violence. These restrictions must be lawful, narrowly tailored and executed with court oversight;
...
6.  you may choose not to disclose your identity online, for instance by using a pseudonym. However, you should be aware that measures can be taken, by national authorities, which might lead to your identity being revealed.”
54. On 7 March 2018, Recommendation CM/Rec(2018)2 of the Committee of Ministers to member States on the roles and responsibilities of Internet intermediaries was also adopted. It explains in particular what is meant by “Internet intermediaries”:
“4. A wide, diverse and rapidly evolving range of players, commonly referred to as ‘internet intermediaries’, facilitate interactions on the internet between natural and legal persons by offering and performing a variety of functions and services. Some connect users to the internet, enable the processing of information and data, or host web-based services, including for user-generated content. Others aggregate information and enable searches; they give access to, host and index content and services designed and/or operated by third parties. Some facilitate the sale of goods and services, including audiovisual services, and enable other commercial transactions, including payments. 5. Intermediaries may carry out several functions in parallel. They may also moderate and rank content, including through automated processing of personal data, and may thereby exert forms of control which influence users’ access to information online in ways comparable to media, or they may perform other functions that resemble those of publishers. Intermediary services may also be offered by traditional media, for instance, when space for user-generated content is offered on their platforms. The regulatory framework governing the intermediary function is without prejudice to the frameworks that are applicable to the other functions offered by the same entity.”
Other international sources
55. The UN Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression stated the following in his report of 16 May 2011 to the Human Rights Council (A/HRC/17/27):
“25. As such, legitimate types of information which may be restricted include child pornography (to protect the rights of children), hate speech (to protect the rights of affected communities), defamation (to protect the rights and reputation of others against unwarranted attacks), direct and public incitement to commit genocide (to protect the rights of others), and advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (to protect the rights of others, such as the right to life).
... 43. The Special Rapporteur believes that censorship measures should never be delegated to a private entity, and that no one should be held liable for content on the Internet of which they are not the author. Indeed, no State should use or force intermediaries to undertake censorship on its behalf ...”
56. In its thematic report on online hate speech, submitted at the seventy‑fourth session of the United Nations General Assembly in September 2019 (A/74/486), it was declared as follows:
“57. State approaches to online hate speech should begin with two premises. First, human rights protections in an offline context must also apply to online speech. There should be no special category of online hate speech for which the penalties are higher than for offline hate speech. Second, Governments should not demand – through legal or extralegal threats – that intermediaries take action that international human rights law would bar States from taking directly. In keeping with these foundations, and with reference to the rules outlined above, States should at a minimum do the following in addressing online hate speech:
(a)  Strictly define the terms in their laws that constitute prohibited content under article 20 (2) of the International Covenant on Civil and Political Rights and article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination and resist criminalizing such speech except in the gravest situations, such as advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, and adopt the interpretations of human rights law contained in the Rabat Plan of Action;
... (d)  Adopt or review intermediary liability rules to adhere strictly to human rights standards and do not demand that companies restrict expression that the States would be unable to do directly, through legislation; ...”
57. In a Joint Declaration of 21 December 2005, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the Representative on Freedom of the Media of the Organization for Security and Co‑operation in Europe and the Special Rapporteur on Freedom of Expression of the Organization of American States, stated as follows:
“No one should be liable for content on the Internet of which they are not the author, unless they have either adopted that content as their own or refused to obey a court order to remove that content.”
58. In a Joint Declaration of 1 June 2011 on freedom of expression and the Internet, the United Nations Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information stated, with regard to the liability of intermediaries, that no one who simply provided technical Internet services such as access to, searches for, or transmission or caching of information, should be liable for content generated by others, which was disseminated using those services, as long as they did not specifically intervene in that content or refuse to obey a court order to remove that content, where they had the capacity to do so. 59. In the 2013 annual report of 31 December 2013 (OEA/Ser.L/V/II.149. Doc. 50), the Special Rapporteur for Freedom of Expression of the Inter‑American Commission on Human Rights took the view that the authors of impugned remarks should be held liable rather than the intermediaries. Hate speechCouncil of Europe

(a)   Committee of Ministers of the Council of Europe
60. The Annex to Recommendation R (97) 20 of the Council of Europe’s Committee of Ministers on “hate speech”, adopted on 30 October 1997, provides in particular as follows:
“Scope
The principles set out hereafter apply to hate speech, in particular hate speech disseminated through the media. For the purposes of the application of these principles, the term ‘hate speech’ shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.
... Principle 1
The governments of the member states, public authorities and public institutions at the national, regional and local levels, as well as officials, have a special responsibility to refrain from statements, in particular to the media, which may reasonably be understood as hate speech, or as speech likely to produce the effect of legitimising, spreading or promoting racial hatred, xenophobia, anti-Semitism or other forms of discrimination or hatred based on intolerance. Such statements should be prohibited and publicly disavowed whenever they occur.
... Principle 6
National law and practice in the area of hate speech should take due account of the role of the media in communicating information and ideas which expose, analyse and explain specific instances of hate speech and the underlying phenomenon in general as well as the right of the public to receive such information and ideas. To this end, national law and practice should distinguish clearly between the responsibility of the author of expressions of hate speech, on the one hand, and any responsibility of the media and media professionals contributing to their dissemination as part of their mission to communicate information and ideas on matters of public interest on the other hand.”
61. In Recommendation CM/Rec(2022)16 on Combating Hate Speech, adopted on 20 May 2022, the Committee of Ministers stated as follows:
“... Stressing that, in order to effectively prevent and combat hate speech, it is crucial to identify and understand its root causes and wider societal context, as well as its various expressions and different impacts on those targeted;
Noting that hate speech is a deep-rooted, complex and multidimensional phenomenon, which takes many dangerous forms and can be disseminated very quickly and widely through the internet, and that the persistent availability of hate speech online exacerbates its impact, including offline;
Realising that hate speech negatively affects individuals, groups and societies in a variety of ways and with different degrees of severity, including by instilling fear in and causing humiliation to those it targets and by having a chilling effect on participation in public debate, which is detrimental to democracy;
Being aware that individuals and groups can be targeted by hate speech on different grounds, or combinations of grounds, and acknowledging that those persons and groups need special protection, without detriment to the rights of other persons or groups;
... Being aware that hate speech is defined and understood in differing ways at the national, European and international levels and that it is crucial to develop a common understanding of the concept, nature and implications of this phenomenon and to devise more effective policies and strategies to tackle it;
Considering that measures to combat hate speech should be appropriate and proportionate to the level of severity of its expression; some expressions of hate speech warrant a criminal law response, while others call for a civil or administrative law response, or should be dealt with through measures of a non-legal nature, such as education and awareness raising, or a combination of different approaches and measures;
... Being aware that internet intermediaries can facilitate public debate, in particular through the digital tools and services they make available, while at the same time highlighting that those tools and services can be used to disseminate, quickly and widely, worrying volumes of hate speech, and underlining that internet intermediaries should ensure that their activities do not have or facilitate an adverse impact on human rights online and address such impacts when they occur;
Recognising that legislative and policy measures to prevent and combat online hate speech should be kept under regular review in order to take into account the fast evolution of technology and online services and, more widely, digital technologies and their influence on information and communication flows in contemporary democratic societies; and acknowledging that those reviews should take into account the dominance of certain internet intermediaries, the power asymmetry between some digital platforms and their users, and the influence of these dynamics on democracies;
... Recommends that the governments of member States:
...
2.  take appropriate measures to give encouragement and support to national human rights institutions, equality bodies, civil society organisations, the media, internet intermediaries and other stakeholders to adopt the measures that are outlined for them in the principles and guidelines appended to this recommendation;
3.  protect human rights and fundamental freedoms in the digital environment, including by co‑operating with internet intermediaries, in line with Recommendation CM/Rec(2018)2 on the roles and responsibilities of internet intermediaries, and other applicable Council of Europe standards; ...”
62. The Annex to Recommendation CM/Rec(2022)16 provides the following explanations:
“... 2. For the purposes of this recommendation, hate speech is understood as all types of expression that incite, promote, spread or justify violence, hatred or discrimination against a person or group of persons, or that denigrates them, by reason of their real or attributed personal characteristics or status such as ‘race’, colour, language, religion, nationality, national or ethnic origin, age, disability, sex, gender identity and sexual orientation. 3. As hate speech covers a range of hateful expressions which vary in their severity, the harm they cause and their impact on members of particular groups in different contexts, member States should ensure that a range of properly calibrated measures is in place to effectively prevent and combat hate speech. Such a comprehensive approach should be fully aligned with the European Convention on Human Rights and the relevant case law of the European Court of Human Rights (the Court) and should differentiate between:
a. i.  hate speech that is prohibited under criminal law; and
 ii.  hate speech that does not attain the level of severity required for criminal liability, but is nevertheless subject to civil or administrative law; and
b. offensive or harmful types of expression which are not sufficiently severe to be legitimately restricted under the European Convention on Human Rights, but nevertheless call for alternative responses, as set out below, such as: counter-speech and other countermeasures; measures fostering intercultural dialogue and understanding, including via the media and social media; and relevant educational, information-sharing and awareness-raising activities. 4. In assessing the severity of hate speech and determining which type of liability, if any, should be attributed to any specific expression, member States’ authorities and other stakeholders should, following the guidance provided by the relevant case law of the Court, take into account the following factors and the interplay between them: the content of the expression; the political and social context at the time of the expression; the intent of the speaker; the speaker’s role and status in society; how the expression is disseminated or amplified; the capacity of the expression to lead to harmful consequences, including the imminence of such consequences; the nature and size of the audience, and the characteristics of the targeted group.
... Legislation regarding online hate speech
... 19. Member States should ensure that mechanisms are in place for the reporting of cases of online hate speech to public authorities and private actors, including internet intermediaries, and clear rules for the processing of such reports. 20. Removal procedures and conditions as well as related responsibilities and liability rules imposed on internet intermediaries should be transparent, clear and predictable and those procedures should be subject to due process. ... 21. Member States should take into account the substantial differences in the size, nature, function and organisational structure of internet intermediaries when devising, interpreting and applying the legislative framework governing the liability of internet intermediaries, ... in order to prevent a possible disproportionate impact on smaller internet intermediaries.
... 24. Member States should have a system in place for the disclosure of subscriber information in cases where competent authorities have assessed that online hate speech is in breach of the law and authors and disseminators are unknown to the competent authorities. ... Internet intermediaries
... 32. Internet intermediaries should carefully calibrate their responses to content identified as hate speech on the basis of its severity, as outlined in paragraph 4 above, and elaborate and apply alternatives to the removal of content in less severe cases of hate speech.
... 34. Internet intermediaries should appoint a sufficient number of content moderators and ensure that they are impartial, have adequate expertise, are regularly trained and receive appropriate psychological support. ...”
63. The Ministers of Foreign Affairs of the Council of Europe also launched, at their 118th ministerial session, a “White paper on Intercultural Dialogue”, entitled Living Together As Equals in Dignity (2008). This document “responds to an increasing demand to clarify how intercultural dialogue may help appreciate diversity while sustaining social cohesion”. As stated therein:
“[It] emphatically argues in the name of the governments of the 47 member states of the Council of Europe that our common future depends on our ability to safeguard and develop human rights, as enshrined in the European Convention on Human Rights, democracy and the rule of law and to promote mutual understanding. It reasons that the intercultural approach offers a forward-looking model for managing cultural diversity. It proposes a conception based on individual human dignity (embracing our common humanity and common destiny). If there is a European identity to be realised, it will be based on shared fundamental values, respect for common heritage and cultural diversity as well as respect for the equal dignity of every individual.”
(b)   Parliamentary Assembly of the Council of Europe (PACE)
64. Resolution 1605 (2008) on European Muslim communities confronted with extremism, adopted on 15 April 2008, calls on member States of the Council of Europe in particular to:
“9.1.  act strongly against discrimination in all areas;
9.2.  condemn and combat Islamophobia;
9.3.  act resolutely against hate speech and all other forms of behaviour which run counter to core human rights and democratic values, even when their authors seek to justify them on religious grounds;
...”
65. In addition, PACE “calls on leaders and opinion-makers to act responsibly to avoid encouraging discrimination and Islamophobia” (point 10 of the Resolution). 66. Moreover, in its Resolution 1743 (2010) on Islam, Islamism and Islamophobia in Europe, adopted on 23 June 2010, PACE states as follows:
“Islam, Islamism and Islamophobia in Europe
... 12. The Assembly deplores that a growing number of political parties in Europe exploit and encourage fear of Islam and organise political campaigns which promote simplistic and negative stereotypes concerning Muslims in Europe and often equate Islam with extremism. It is inadmissible to incite intolerance and sometimes even hatred against Muslims. The Assembly calls on member states to pursue political action in accordance with General Policy Recommendation No. 5 (2000) of the European Commission against Racism and Intolerance (ECRI) on combating intolerance and discrimination against Muslims. It reiterates that it is for the member states to reject political statements that stir up fear and hatred of Muslims and Islam, while complying with the stipulations of the Convention, in particular Article 10.2.12.
...”
(c)   European Commission against Racism and Intolerance (ECRI)
67. The relevant passages of ECRI’s General Policy Recommendation no. 15 on combating hate speech, adopted on 8 December 2015 reads as follows:
“The European Commission against Racism and Intolerance (ECRI):
... Taking note of the differing ways in which hate speech has been defined and is understood at the national and international level as well as of the different forms that it can take;
Considering that hate speech is to be understood for the purpose of the present General Policy Recommendation as the advocacy, promotion or incitement, in any form, of the denigration, hatred or vilification of a person or group of persons, as well as any harassment, insult, negative stereotyping, stigmatization or threat in respect of such a person or group of persons and the justification of all the preceding types of expression, on the ground of ‘race’, colour, descent, national or ethnic origin, age, disability, language, religion or belief, sex, gender, gender identity, sexual orientation and other personal characteristics or status;
... Recognising also that forms of expression that offend, shock or disturb will not on that account alone amount to hate speech and that action against the use of hate speech should serve to protect individuals and groups of persons rather than particular beliefs, ideologies or religions;
Recognising that the use of hate speech can reflect or promote the unjustified assumption that the user is in some way superior to a person or a group of persons that is or are targeted by it;
Recognising that the use of hate speech may be intended to incite, or reasonably expected to have the effect of inciting others to commit, acts of violence, intimidation, hostility or discrimination against those who are targeted by it and that this is an especially serious form of such speech;
... Recognising that the use of hate speech appears to be increasing, especially through electronic forms of communication which magnify its impact, but that its exact extent remains unclear because of the lack of systematic reporting and collection of data on its occurrence and that this needs to be remedied, particularly through the provision of appropriate support for those targeted or affected by it;
... Recognising that politicians, religious and community leaders and others in public life have a particularly important responsibility in this regard because of their capacity to exercise influence over a wide audience;
Conscious of the particular contribution that all forms of media, whether online or offline, can play both in disseminating and combating hate speech;
... Recommends that the governments of member States:
10.  take appropriate and effective action against the use, in a public context, of hate speech which is intended or can reasonably be expected to incite acts of violence, intimidation, hostility or discrimination against those targeted by it through the use of the criminal law provided that no other, less restrictive, measure would be effective and the right to freedom of expression and opinion is respected, and accordingly:
a.  ensure that the offences are clearly defined and take due account of the need for a criminal sanction to be applied;
b.  ensure that the scope of these offences is defined in a manner that permits their application to keep pace with technological developments;
c.  ensure that prosecutions for these offences are brought on a nondiscriminatory basis and are not used in order to suppress criticism of official policies, political opposition or religious beliefs;
d.  ensure the effective participation of those targeted by hate speech in the relevant proceedings;
e.  provide penalties for these offences that take account both of the serious consequences of hate speech and the need for a proportionate response;
f.  monitor the effectiveness of the investigation of complaints and the prosecution of offenders with a view to enhancing both of these;
...”
68. In its “Explanatory Memorandum” ECRI provides the following clarifications:
“... 14. The Recommendation further recognises that, in some instances, a particular feature of the use of hate speech is that it may be intended to incite, or can reasonably be expected to have the effect of inciting, others to commit acts of violence, intimidation, hostility or discrimination against those targeted by it. As the definition above makes clear, the element of incitement entails there being either a clear intention to bring about the commission of acts of violence, intimidation, hostility or discrimination or an imminent risk of such acts occurring as a consequence of the particular hate speech used. 15. Intent to incite might be established where there is an unambiguous call by the person using hate speech for others to commit the relevant acts or it might be inferred from the strength of the language used and other relevant circumstances, such as the previous conduct of the speaker. However, the existence of intent may not always be easy to demonstrate, particularly where remarks are ostensibly concerned with supposed facts or coded language is being used.
...”
69. ECRI’s revised General Policy Recommendation No. 5 on preventing and combating anti-Muslim racism and discrimination, adopted on 8 December 2021, encourages the adoption of a number of specific measures in this connection:
“I. Preamble
... Convinced that the peaceful co-existence of religions in a pluralistic society is founded upon respect for equality and for non-discrimination between religions in a democratic state with a clear separation between the laws of the State and religious institutions; ... Strongly regretting that Islam and Muslims are sometimes portrayed on the basis of hostile stereotyping the effect of which is to make this religion and its followers or those perceived as such seem a threat;
Rejecting all deterministic views of Islam and recognising the great diversity intrinsic in the practice of this religion;
Observing the significant increase of anti-Muslim hatred and discrimination in many member States of the Council of Europe, and stressing that this increase is also characterised by contemporary forms of this phenomenon, which has followed closely contemporary world developments, notably the terror attacks of 11 September 2001; the subsequent strengthened efforts in the fight against terrorism; the situation in the Middle East and the growing migration from Muslim majority countries into Europe;
Firmly convinced that hatred and prejudice affecting Muslim communities, which may manifest themselves in different guises, not only through negative attitudes but also, to varying degrees, through discriminatory acts, hate speech and hate crime, need to be actively fought as a component of the struggle against racism;
... Recalling the need for member States to favour the integration of new members of their societies as a two-way process and ensure the inclusion of their longstanding diverse populations in order to help prevent racist, discriminatory or xenophobic responses from some segments of society to the climate generated by the fight against terrorism or religious extremism, or while addressing the challenges of growing migration;
Noting that anti-Muslim racism and discrimination often have an intersectional dimension operating on several grounds such as religion, national or ethnic origin and gender;
... C. Contemporary forms of anti-Muslim racism and discrimination
... Stigmatisation
...
22.  ... online hate speech targeting Muslims in particular has soared in recent years and remains very prevalent. On social media platforms in particular, inflammatory anti‑Muslim narratives proliferate and include the demonisation of Muslim communities, conspiracy theories referring to Muslims as ‘invaders’ of Europe, those discourses specific to the Covid-19 pandemic, and incitements to violence against Muslims. People who are identifiably Muslim online may also find that their Muslim identity is targeted in the virtual space and subjected to abusive and threatening behaviour, even in the context of issues that have nothing to do with their faith or community, which for some has a chilling effect on online participation. ECRI has observed that surges in online hate speech are mostly sparked or ‘triggered’ by external developments, such as terror attacks or through statements giving rise to tension by failing to make a distinction between the criticism of a religion and offending the followers of that religion.
... Hate-motivated violence
33. ECRI’s monitoring reports have demonstrated the prevalence of hate-motivated violence against Muslims. Anti-Muslim attacks range from the desecration of Muslim cemeteries, religious buildings and mosques, to abusive behaviour, threats, physical assaults, including in public, against Muslim men or men believed to be Muslim, to murder and deadly terrorist attacks. Data from many European countries suggest that Muslim women are frequently the targets of violence that often involves the pulling off of face veils and headscarves or being spat at. ECRI always calls for strong actions to prevent and punish such attacks since public humiliation of this kind undermines human dignity, creates fear and isolation as well as hinders integration and inclusion. As noted above, Muslim men and women have both been subjected to anti-Muslim hate speech on and offline, targeted with abuse and hostility, with evidence suggesting that incidents of anti-Muslim hostility are likely to increase in the aftermath of terrorist attacks carried out by those who claim to do so in the name of Islam. 34. Overall, the extent of violent incidents against Muslims often remains undocumented and under-reported. Victims and witnesses usually refrain from reporting these incidents due to the fear of reprisal or lack of trust in the authorities. ECRI notes that the failure of the authorities to react appropriately to hate crimes against Muslims may lead to the repetition of such acts and lack of prosecution might send a message of impunity. In this context, ECRI has repeatedly emphasised the need to take steps to ensure the effective functioning of the justice system against anti-Muslim hate crime. These include, among others, the effective monitoring and recording of incidents, collecting uniform and reliable data, increasing the capacities of law enforcement agencies and prosecuting services to effectively identify and investigate bias-motivated crimes, developing support mechanisms for victims and implementing confidence-building measures to enhance the relationship between the police and Muslim communities.
... III. Recommendations
ECRI notes that the levels and forms of anti-Muslim racism and discrimination vary considerably among Council of Europe member States. The following recommendations, which also take relevant findings from ECRI’s country monitoring work into consideration, should not be understood as a ‘one-size-fits-all’ approach. They are intended as a list of actions which governments are invited to consider and, if necessary, to adapt to their country’s circumstances in cooperation with the communities concerned. ECRI recommends that the governments of member States:
... B. Prevention
...
16.  encourage political actors, opinion leaders and other public personalities to take a firm public stand against anti-Muslim racism, speaking out against its various manifestations, including all its contemporary forms, and making clear that anti-Muslim racism will never be tolerated;
...
26.  regulate internet companies, including social media networks, telecom operators and internet service providers in order to establish effective systems to monitor and stop anti‑Muslim hate speech online, in line with international human rights standards, and engage with social media networks to work together on initiatives, in particular in the field of education, that could help propagate balanced narratives about Muslims and Islam on social media platforms;
27.  ensure continuous training at local, regional and national levels for police officers, prosecutors and the judiciary on preventing and combating anti‑Muslim racism, including recognising and recording anti-Muslim hate crime, agreed as best practice by European agencies and other international organisations;
... D. Prosecution / Law Enforcement
...
51.  ensure that criminal law also covers anti-Muslim bias and penalises the following anti-Muslim acts when committed intentionally:
...
f.  public insults and defamation of a person or a group of persons because they are Muslims or perceived to be Muslims;
g.  threats against a person or group of persons because they are Muslims or perceived to be Muslims;
h.  the public expression, with a racist aim, of an ideology which depreciates or denigrates, or which incites hatred against a group of persons because they are Muslims or perceived to be Muslims;
...
52.  ensure that anti-Muslim crimes committed online are punished just as crimes offline and are adequately addressed by means of effective prosecution and other measures. Illegal anti-Muslim hate speech must be removed promptly and consistently by internet service providers, in accordance with the relevant legal and non‑legal framework;
...”
70. In its report on France adopted on 8 December 2015 (CRI (2016)1), ECRI noted a substantial rise in intolerance and a worsening of racist behaviour in recent years. It recommended that certain conduct be expressly criminalised: (i) the public expression of an ideology claiming the superiority of or depreciating or denigrating a group of persons; and (ii) the creation or leadership of a group which promotes racism, support for such a group or participation in its activities (§ 10). ECRI noted a decline in the tolerance of diversity since 2009, as the National Consultative Commission for Human Rights had found in its report published on 12 June 2014 on the combating of racism, antisemitism and xenophobia (report for 2013, published by La documentation française), as well as the prevalence of antisemitic stereotypes, especially in various segments of French society (Front national supporters, part of the population of Arab origin, and supporters of the Front de gauche). It pointed out that hate speech had led to acts of racist violence, especially by extremist groups. (d)   Special Representative of the Secretary General on antisemitic, anti‑Muslim and other forms of religious intolerance and hate crimes
71. The Special Representative of the Secretary General of the Council of Europe organised a consultation of Muslim organisations. The results gave rise to a working document (July 2021) containing the following conclusion (unofficial translation):
“In sum, the propagation of discrimination, incitement to violence and death threats on line is a growing concern among minorities in Europe, the Muslim community in particular. Like other types of racist and anti-religious intolerance, the phenomenon of anti-Muslim feeling and hate is complex. It is clear, however, that it is on the rise and that it is dangerous because on-line hatred leads to violence and killing. It must therefore be dealt with urgently.”
United Nations
(a)   Human Rights Council
72. In his report submitted in accordance with Human Rights Council resolution 16/4 (A/67/357, 7 September 2012), the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression made the following observations in particular:
“46. While some of the above concepts may overlap, the Special Rapporteur considers the following elements to be essential when determining whether an expression constitutes incitement to hatred: real and imminent danger of violence resulting from the expression; intent of the speaker to incite discrimination, hostility or violence; and careful consideration by the judiciary of the context in which hatred was expressed, given that international law prohibits some forms of speech for their consequences, and not for their content as such, because what is deeply offensive in one community may not be so in another. Accordingly, any contextual assessment must include consideration of various factors, including the existence of patterns of tension between religious or racial communities, discrimination against the targeted group, the tone and content of the speech, the person inciting hatred and the means of disseminating the expression of hate. For example, a statement released by an individual to a small and restricted group of Facebook users does not carry the same weight as a statement published on a mainstream website. Similarly, artistic expression should be considered with reference to its artistic value and context, given that art may be used to provoke strong feelings without the intention of inciting violence, discrimination or hostility. 47. Moreover, while States are required to prohibit by law any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence under article 20 (2) of the Covenant, there is no requirement to criminalize such expression. The Special Rapporteur underscores that only serious and extreme instances of incitement to hatred, which would cross the seven-part threshold, should be criminalized. 48. In other cases, the Special Rapporteur is of the view that States should adopt civil laws, with the application of diverse remedies, including procedural remedies (for example, access to justice and ensuring effectiveness of domestic institutions) and substantive remedies (for example, reparations that are adequate, prompt and proportionate to the gravity of the expression, which may include restoring reputation, preventing recurrence and providing financial compensation). 49. In addition, while some types of expression may raise concerns in terms of tolerance, civility and respect for others, there are instances in which neither criminal nor civil sanctions are justified. The Special Rapporteur wishes to reiterate that the right to freedom of expression includes forms of expression that are offensive, disturbing and shocking. Indeed, since not all types of inflammatory, hateful or offensive speech amount to incitement, the two should not be conflated.”
(b)    Committee on the Elimination of Racial Discrimination
73. General Recommendation no. 35 of 26 September 2013, on combating racist hate speech, provides guidelines on the requirements of the International Convention on the Elimination of All Forms of Racial Discrimination, the aim being to help the States parties to fulfil their obligations. It is indicated in particular as follows:
“6. Racist hate speech addressed in Committee practice has included all the specific speech forms referred to in article 4 directed against groups recognized in article 1 of the Convention – which forbids discrimination on grounds of race, colour, descent, or national or ethnic origin – such as indigenous peoples, descent-based groups, and immigrants or non-citizens, including migrant domestic workers, refugees and asylum seekers, as well as speech directed against women members of these and other vulnerable groups. In the light of the principle of intersectionality, and bearing in mind that ‘criticism of religious leaders or commentary on religious doctrine or tenets of faith’ should not be prohibited or punished, the Committee’s attention has also been engaged by hate speech targeting persons belonging to certain ethnic groups who profess or practice a religion different from the majority, including expressions of Islamophobia, anti-Semitism and other similar manifestations of hatred against ethno‑religious groups, as well as extreme manifestations of hatred such as incitement to genocide and to terrorism. Stereotyping and stigmatization of members of protected groups has also been the subject of expressions of concern and recommendations adopted by the Committee. 7. Racist hate speech can take many forms and is not confined to explicitly racial remarks. As is the case with discrimination under article 1, speech attacking particular racial or ethnic groups may employ indirect language in order to disguise its targets and objectives. In line with their obligations under the Convention, States parties should give due attention to all manifestations of racist hate speech and take effective measures to combat them. The principles articulated in the present recommendation apply to racist hate speech, whether emanating from individuals or groups, in whatever forms it manifests itself, orally or in print, or disseminated through electronic media, including the Internet and social networking sites, as well as non-verbal forms of expression such as the display of racist symbols, images and behaviour at public gatherings, including sporting events.
...
15.  ... On the qualification of dissemination and incitement as offences punishable by law, the Committee considers that the following contextual factors should be taken into account:
The content and form of speech: whether the speech is provocative and direct, in what form it is constructed and disseminated, and the style in which it is delivered. The economic, social and political climate prevalent at the time the speech was made and disseminated, including the existence of patterns of discrimination against ethnic and other groups, including indigenous peoples. Discourses which in one context are innocuous or neutral may take on a dangerous significance in another: in its indicators on genocide the Committee emphasized the relevance of locality in appraising the meaning and potential effects of racist hate speech. The position or status of the speaker in society and the audience to which the speech is directed. The Committee consistently draws attention to the role of politicians and other public opinion-formers in contributing to the creation of a negative climate towards groups protected by the Convention, and has encouraged such persons and bodies to adopt positive approaches directed to the promotion of intercultural understanding and harmony. The Committee is aware of the special importance of freedom of speech in political matters and also that its exercise carries with it special duties and responsibilities. The reach of the speech, including the nature of the audience and the means of transmission: whether the speech was disseminated through mainstream media or the Internet, and the frequency and extent of the communication, in particular when repetition suggests the existence of a deliberate strategy to engender hostility towards ethnic and racial groups. The objectives of the speech: speech protecting or defending the human rights of individuals and groups should not be subject to criminal or other sanctions.
...”
European Union law and case-law of the Court of Justice of the European Union (CJEU)
74. Framework Decision 2008/913/JHA of 28 November 2008 of the Council of the European Union on combating certain forms and expressions of racism and xenophobia by means of criminal law (OJ L 328, pp. 55-58) is presented in paragraphs 82 et seq. of the Court’s judgment in Perinçek v. Switzerland ([GC], no. 27510/08, 15 October 2015). 75. In addition, in May 2016 the European Commission launched a Code of Conduct involving four major digital technology companies (Facebook, Microsoft, Twitter and YouTube) to prevent and counter the spread of racist and xenophobic hate speech online. The aim of the code is to ensure that content removal notifications are dealt with promptly. To date the Commission has conducted six evaluations of the Code of Conduct, presenting its results every year from 2016 to 2021. On 1 March 2018 the Commission published Recommendation (EU) 2018/334 on measures to combat illegal content online effectively (OJ L 63, 6 March 2018). Lastly, on 15 December 2020, the Commission published, inter alia, the draft “Digital Services Act” (DSA) with the aim of having it adopted in 2022, to enable the implementation of a new regulatory framework, introducing across the European Union a series of new harmonised obligations for digital services (COM/2020/825 final). A provisional agreement on the DSA, between the Council of the European Union and the European Parliament, was reached on 23 April 2022. The DSA entered into force on 16 November 2022. 76. As to the case-law of the CJEU, it ruled in its judgment Unabhängiges Landeszentrum für Datenschutz Schleswig-Holstein v. Wirtschaftsakademie Schleswig-Holstein GmbH of 5 June 2018 (C-210/16, EU:C:2018: 388), that the administrator of a “fan page” hosted on Facebook (such page being, unlike a personal account such as that used by the applicant in the present case, a professional account for the promotion of a company or organisation on Facebook, operating with a series of specific strategies to improve and measure visitor interaction) had to be characterised as being responsible for the processing of the data of individuals visiting the page and therefore shared joint liability with the operator of the social network, within the meaning of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281 of 23 November 1995, pp. 31-50). 77. In its judgment in Fashion ID of 29 July 2019 (C‑40/17, EU:C:2019:629), the CJEU held that the administrator of a website (that of an online retail business selling fashion clothing) who inserted a “like” module from the social network Facebook, could be regarded as responsible, within the meaning of Directive 95/46, for the collection and communication of the personal data of visitors to that website. 78. In Glawischnig-Piesczek v. Facebook Ireland of 3 October 2019 (C- 18/18, EU:C:2019:821), the CJEU ruled that 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 (OJ L 178 of 17 July 2000, pp. 1-16), in particular Article 15 § 1 thereof, had to be interpreted as not precluding a court of a member State from: ordering a host provider like Facebook to remove information which it stored, the content of which was identical to the content of information which was previously declared to be unlawful, or to block access to that information, irrespective of who requested the storage of that information ordering a host provider to remove information which it stored, the content of which was equivalent to the content of information which was previously declared to be unlawful, or to block access to that information, provided that the monitoring of and search for the information concerned by such an injunction were limited to information conveying a message the content of which remained essentially unchanged compared with the content which gave rise to the finding of illegality and containing the elements specified in the injunction, and provided that the differences in the wording of that equivalent content, compared with the wording characterising the information which was previously declared to be illegal, were not such as to require the host provider to carry out an independent assessment of that content; and ordering a host provider to remove information covered by the injunction or to block access to that information worldwide within the framework of the relevant international law. Lastly, a court could also order a host to delete information concerned by the order or to block access to it worldwide, in the context of the relevant international law. Comparative law material
79. From the information in the Court’s possession it can be seen that the liability of individual holders of social media accounts in respect of comments posted by others on their “walls” or accounts is an issue which has not been dealt with specifically in thirty-four member States of the Council of Europe: Albania, Austria, Azerbaijan, Belgium, Bosnia-Herzegovina, Croatia, Cyprus, the Czech Republic, Denmark, Estonia, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Luxemburg, the Republic of North Macedonia, Malta, the Republic of Moldova, Montenegro, the Netherlands, Norway, Poland, Romania, San Marino, Serbia, the Slovak Republic, Slovenia, Spain, Sweden, Türkiye and the United Kingdom. To date, in only six of these States has the matter been addressed in one way or another (Austria, Croatia, Germany, Romania, Sweden and Türkiye), together with Switzerland (judgment of the Federal Court of 7 April 2022, case no. 6B 1360/2021). Some national courts have interpreted the existing legal norms relating to Internet hosts or intermediary service providers as forming the basis for attribution of such liability. In the other twenty‑eight member States in question there are no explicit legal provisions, regulations or judicial practice expressly dealing with this question. Thus, there does not always seem to be room for the attribution of any form of liability in that context. On the other hand, in some other countries such liability may, in theory, be imposed either with reference to general provisions of civil, administrative or criminal law, or on the basis of more specific provisions relating to the duties and obligations of Internet hosts or intermediary service providers. It should nevertheless be borne in mind that such situations remain hypothetical, given that they have so far never arisen in practice. 80. As regards “hate speech”, although, as such, this concept is defined in the legislation of only three of the member States surveyed (Albania, Montenegro and Serbia), the others also prohibit and penalise certain forms of expression, including “incitement to hatred”. Specific elements need to be present in order for expression of hatred to be punishable. In particular, it has to be made in public; to be directed against a group (or a person belonging to that group) with protected characteristics; to be intentional; and to reach a certain level of seriousness or to be capable of harmful consequences. TERMS OF USE OF SOCIAL NETWORK FACEBOOK
81. At the relevant time a “Statement of rights and responsibilities” governed Facebook’s relations with its users, who were deemed to agree to it upon accessing the network. It provided in particular as follows in point 2.4: “when you publish content or information using the Public setting, it means that you are allowing everyone, including people off of Facebook, to access and use that information and to associate it with you (i.e. your name and profile picture)”. The statement also contained a provision on “hateful” content (replaced by “hate speech”, then “hateful speech” on subsequent amendment – cf. Part III, point 12 “Hate Speech”, in the latest version of “Facebook Community Standards”). 82. In addition, there was no legal provision requiring the holder of a personal account on a social network to set up any automatic filtering of comments posted by others and the practical possibility of prior content moderation on Facebook did not yet exist at the relevant time. However, Facebook has since enabled the administrators of its pages to implement prior and subsequent moderation of content posted by third parties. THE LAW
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
83. The applicant alleged that his criminal conviction, on account of comments posted by third parties on the “wall” of his Facebook account, had breached Article 10 of the Convention, which reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The Chamber judgment
84. The Chamber found that the applicant’s criminal conviction constituted an interference with the exercise of his right to freedom of expression secured by Article 10 of the Convention, that interference being prescribed by law and having pursued the legitimate aim of protecting the rights and freedoms of others. 85. As to whether the interference had been necessary “in a democratic society”, the Chamber examined the context of the comments, any steps taken by the applicant to remove the comments once posted, the possibility that the authors might have been held liable instead of the applicant and, lastly, the consequences of the domestic proceedings for him. 86. It noted in particular that the comments posted on the applicant’s Facebook “wall”, to which the public had access, were clearly unlawful. While acknowledging the election context and taking account of the medium used, the “wall” of a Facebook account, it took the view that the domestic courts’ findings concerning those comments had been fully substantiated. 87. In addition, after noting that the applicant had solely been reproached for his lack of vigilance and reaction with respect to certain comments on his Facebook “wall”, and in view of the specific local political context, the Chamber found, having regard to the margin of appreciation afforded to the respondent State, that the decision of the domestic courts to convict the applicant for not having promptly deleted the unlawful comments posted by third parties on his “wall”, which he was using in support of his election campaign, had been based on relevant and sufficient grounds. Accordingly, it held that the interference could be considered “necessary in a democratic society” within the meaning of Article 10 § 2 of the Convention. The parties’ submissionsThe applicant

88. The applicant pointed out that he had been convicted in his capacity as “producer” within the meaning of French law, without having received any notification asking him to remove the impugned comments. He submitted that it had not been proven that he had been aware of the comments or of their unlawfulness. He also pointed to the fact that he had been using a Facebook account as a local councillor and that the impugned comments had been posted by authors who had been both identified and convicted, his own conviction thus replicating theirs. At the relevant time, Facebook’s parameters had not provided for any filtering of comments prior to posting. The monitoring obligation imposed, according to the Chamber judgment, on a Facebook account holder would be very burdensome and would present him or her with irreconcilable conflicts of interest. 89. In the applicant’s submission, in view of the scale of the task, the holder of a Facebook account would inevitably be forced to engage in censorship owing to the risk of criminal proceedings, even in respect of remarks that were not manifestly unlawful. He took the view that his case, in reality, concerned the question of remarks which, while virulent, polemical or unpleasant, did not exceed the permissible limits of freedom of expression in political matters, particularly when made during an election campaign. 90. As regards the legality of his criminal conviction, he submitted that the criteria of accessibility, precision and foreseeability were lacking. He pointed out that, although the basis for his conviction had been section 24 of the Law of 29 July 1881, it was in fact section 93-3 of Law no. 82-652 of 29 July 1982 on audiovisual communication, enabling his liability to be engaged as “producer”, within the meaning of that provision, which was at issue in the present case. 91. The applicant stressed that section 93-3 of Law no. 82-652 of the Law of 29 July 1982 provided for a duality of actors and a “cascading” hierarchy of liability for the prosecution of an offence, the effect of which was to allow proceedings against the producer only if it was not possible to prosecute the publication director or, failing that, the authors. He noted, however, that there had been no publication director in the present case and that he had been prosecuted as producer even though the two authors of the impugned comments had been identified and convicted. He concluded that the application of the law and his conviction as producer had not been foreseeable. He added that the concept of producer was not defined by law in relation to social media. 92. He further submitted that section 93-3 of Law no. 82-652 of 29 July 1982 did not specify the conditions under which the producer was considered to have had knowledge of the unlawful remarks. It was inconsistent not to require prior notification to the producer, in order to ensure legal certainty, as was provided for in Law no. 2004-575 of 21 June 2004 in the case of hosts. 93. He also disagreed with the argument that his criminal conviction had pursued a legitimate aim, since section 93-3 of Law no. 82-652 of 29 July 1982 was intended to implicate the producer only if proceedings could not be brought against either the publication director or the authors, but that had not been the case. 94. As to the necessity of the interference, the applicant complained that he had been convicted in respect of the first message even though it had been removed by the author himself less than twenty-four hours after being posted. With regard to the comments made by L.R., he submitted that the courts had failed to show that he had been aware of them or that they were manifestly unlawful, merely invoking a presumption of a general duty of enhanced scrutiny based on his status as a politician. He had in any event removed those comments as soon as he had been informed of their existence, upon being summoned by the police. 95. The applicant further observed that the impugned remarks had reflected his party’s political manifesto, which had never been banned, and that they denounced a policy which promoted the establishment of community-specific businesses, thus amounting to political speech and criticism that should be allowed on social media. The remarks in his view were lawful as the language used had been vivacious, rather than vulgar or insulting, and Internet users were entitled to have recourse to a degree of exaggeration or provocation. 96. The applicant pointed out that he was a politician and thus his environment was a sensitive one, requiring him to strike a balance between the protection of the reputation of others and the interests of free discussion of political issues, particularly during an election campaign, which was a high point in the life of any party or political leader. The Internet and social media helped to simplify speech, and the pitfall of self-censorship had to be avoided at all costs, so as not to eliminate criticism of official policy or political opposition. The Internet provided, in particular, a bottom-up chain of communication from the citizen to the politician, as a means of expressing concerns, positions and criticisms to the latter. The transposition of media law was therefore inadequate and, moreover, with a system of interactive monologues, each speaker should be solely liable for his or her remarks. 97. Furthermore, the applicant argued that filtering would not be desirable in view of the emergence of an electronic democracy. On the other hand, formal notification requesting the removal of a given comment, whether by electronic registered letter or through a reporting mechanism, would be a means of establishing that the account holder was aware of the comment and of verifying that he or she was acting in good faith by immediately deleting it. 98. Lastly, he referred to the need to have recourse to means other than criminal proceedings in order to respond to political criticism. 99. The applicant concluded from the foregoing that the reasons given by the domestic courts to convict him had been neither relevant nor sufficient. The Government
100. The Government acknowledged that there had been an interference with the applicant’s freedom of expression, describing it as indirect, since he had not been convicted on the basis of his own words and he himself had not conveyed the impugned remarks to the public. They concluded that the interference in the present case thus concerned only the possible limitations on the applicant’s ability to open a free discussion forum, allowing third parties to express their views and react on his Facebook “wall”, and therefore a circumscribed area of his means of political expression. 101. They submitted, however, that the interference in question was prescribed by law, pursued legitimate aims and was necessary in a democratic society. 102. As to the lawfulness of that interference, they referred in particular to the terms of section 24(8) of the Law of 29 July 1881 and to the case-law of the Court of Cassation, which illustrated the various situations in which the relevant offence had or had not been considered to have been committed. They also pointed out that racist remarks might not constitute incitement to hatred if they did not, even implicitly, call for or encourage discrimination, hatred or violence, emphasising that the courts would look at the intention behind the speech. The Government submitted that in the present case the domestic courts, in which Leila T. had brought proceedings, had given reasons for their decisions and had applied the usual tests. In their view, the political backdrop and the existence of an election campaign had been expressly taken into account. 103. As regards the imputability of the offence, the Government pointed out that the applicant had been convicted in his capacity as “producer” within the meaning of section 93-3 of Law no. 82-652 of 29 July 1982, which provided for two scenarios, depending on whether or not the message had been “fixed” prior to its transmission to the public. The definition of “producer” did not derive from statute law, but from the jurisprudence of the Court of Cassation and the Constitutional Council; they referred to the Constitutional Council’s decision of 16 September 2011 (QPC, no. 2011‑164) and to the case-law of the Court of Cassation, which had drawn the appropriate conclusions from that decision. They further submitted that the Court had previously held that imputing criminal liability to the “producer” was not incompatible with the Convention (they referred to Radio France and Others v. France, no. 53984/00, § 24, ECHR 2004 II). 104. The Government observed that the applicant had been prosecuted for specific conduct directly linked to his status as producer, being the account holder, whereas the authors had been prosecuted and convicted as accomplices, in accordance with section 93-3 of Law no. 82-652 of 29 July 1982. 105. They submitted that political debate was not exempt from restrictions in the Court’s case-law, as politicians could be held criminally liable for hate speech at political rallies if it was uttered publicly. The liability of a politician, like that of a private individual, for unlawful remarks made by third parties on their Facebook “wall”, could be engaged irrespective of whether the proceedings were criminal or civil. The Government also pointed out that while a political party might be held liable for unlawful remarks posted by third parties in the context of an account that it had created on a social network or medium as part of its activity, a legal entity could not, with certain exceptions, be prosecuted for offences under the Freedom of the Press Act of 29 July 1881. In any event, any potential liability of an entity did not rule out liability on the part of the individuals who were the perpetrators of the alleged offences or their accomplices. 106. The Government further submitted that there were a number of different forms of political expression, each of which was controlled and regulated. As regards social media pages and political communication, they enjoyed wide dissemination, extending beyond the circle of supporters and the context of a political rally, while remaining permanently accessible. They highlighted the specificity of social networks as tools of political communication, as opposed to political meetings or rallies. In French law, unlike the provisions applying to remarks made at such rallies, online hate speech fell within a different set of rules, in that the liability of the author of the hate speech could be engaged only as an alternative to that of the “publication director” or the “producer” of an online communication site. They explained this by the fact that the use of social media differed from certain more traditional means of political communication, entailing broad and sustained dissemination over time to a wide audience that extended well beyond that of a political rally: therefore, in view of the risk of hate speech being spread even more widely, it would be particularly dangerous not to regulate its dissemination on Facebook. They took the view that the applicant’s Facebook account was more akin to a large portal run for professional and commercial purposes than other types of Internet fora, as defined in Delfi AS v. Estonia ([GC], no. 64569/09, ECHR 2015). In that context, the applicant had had only one obligation: to delete unlawful posts promptly after becoming aware of them. No regulation required the automatic filtering of comments and there was no practical possibility of prior content moderation on Facebook. They concluded that the responsibility contemplated by Article 10 § 2 of the Convention should lead producers, in particular when they were candidates for election or elected officials, to open a forum for discussion only if they were able to moderate comments to a minimum degree. 107. Moreover, the Government acknowledged that section 93-3 of Law no. 82-652 of 29 July 1982 did not specify the conditions in which the publication director or producer was deemed to have actual knowledge of the comments, unlike hosts under the provisions of Law no. 2004-575 of 21 June 2004, which laid down rules for the reporting of illegal content. According to the case-law of a number of courts of first instance, the need for prompt deletion required a very rapid reaction, and the Court of Cassation had stated that prior knowledge of the remarks had to be established. 108. As regards the aim pursued by the interference, the Government submitted that it pursued at least one legitimate aim within the meaning of Article 10 of the Convention, namely the protection of the rights of others. 109. As to the necessity of the interference and the context in which the comments had been made, the domestic courts had correctly applied section 24 of the Law of 29 July 1881 in characterising the offence as incitement to hatred, since the applicant’s Facebook “wall” had not only been overtly presented as that of a local Front national politician who was running an election campaign, but had also been voluntarily left open to anyone with a Facebook account. This meant that his responsibility was all the greater in his capacity as a politician. 110. The Government further submitted that the impugned interference had been proportionate and had been the only measure capable in practice of ensuring the removal of the impugned comments, which had remained accessible to the public, as victims had not had the necessary means to achieve this. They submitted that the applicant could have changed the settings to regulate the comments on his Facebook account and that, in order to avoid further harm to Leila T. and without running the risk of hindering his election campaign, it would have been sufficient for him to delete the comments of which he was perfectly aware and which did not form part of the local debate. 111. Lastly, the Government noted that the applicant had been fined a reduced amount by the Court of Appeal, without there being any further consequences for him. Observations of third-party interveners
(a)   The Government of Slovakia
112. The Slovak Government observed in particular that the social media era had taken public debate onto the Internet. In addition, repeated attacks on democratic principles, human dignity and private life, hidden under the cloak of freedom of expression, should be excluded from its scope of protection. The State should be allowed to combat such attacks by criminalising hate speech. 113. With regard to the very significant impact of social media and their use by politicians, the Slovak Government observed that they had become a tool for political combat and public influence. To illustrate this argument, they provided statistical data obtained for Slovakia and analysed by a Slovak newspaper, according to which, for a country of 5.45 million inhabitants, the three best known Slovak politicians had, in 2021, collected 11, 4.2 and 4.1 million social media interactions respectively (the second and third being of a far-right political orientation). Similarly, in 2020, the mayor of a Slovak town of 5,000 people, known for his resistance to governmental measures relating to the Covid-19 pandemic, had 125,000 interactions on his Facebook page, and nearly 1.5 million the following year. They added that politicians were also the authors of highly successful social media posts. 114. In that context, the Slovak Government considered that the question of politicians’ criminal liability for hate speech disseminated on social media should be approached with extreme caution. (b)   The Government of the Czech Republic
115. The Czech Government argued in particular that the scope of the liability shared between the author of the content, the social media platform and third parties had to be clarified by the Court, so that the obligations should be reasonably foreseeable for each one. 116. They took the view that the liability of the social network or platform should not be overlooked, to avoid imposing a disproportionate burden on the holder of an account. They also raised the issue of the scope of the States’ positive obligation where the authors of the offending remarks had been identified. 117. In addition, warning against the chilling effect of criminal sanctions, particularly in an election context, they found it necessary to envisage alternative procedures and less severe measures. (c)   Media Defence and the Electronic Frontier Foundation
118. Media Defence and the Electronic Frontier Foundation submitted inter alia that the principles established in Delfi AS (cited above) should not be applied to the users of digital platforms (such as Facebook) acting as mere intermediaries which, according to some studies, were among those most impacted by erroneous moderation. 119. In their view, the various users of social media should not be obliged to decide whether third-party posts on their accounts were lawful, since that was a matter for the national courts alone, or to monitor content produced by third parties. They should be held liable only in the event of proven knowledge of the illegal content. (d)   European Information Society Institute (EISi)
120. EISi underscored the need to determine the outer limits of the liability of speech facilitators while examining the interaction between the various actors in a complex digital “ecosystem”. Holding a Facebook “wall” owner criminally liable for failing to take prompt, pre-notification action against hate speech by identifiable authors was a disproportionate measure with a potential chilling effect. Any liability should be shared between the authors of the comments if they could be identified and the other actors involved, in line with a “graduated and differentiated” approach. 121. EISi submitted in particular that social media platforms had inherent characteristics that were incompatible with editorial control such as that applied by the press and that it was not possible to require monitoring of all comments in the first twenty-four hours of publication without imposing a disproportionate burden. It advocated a “notice-and-takedown” model of liability enforcement, with the exception of situations where the intermediary had itself incited the unlawful comments in question.

Outcome for Article 10: no_violation