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29/09/2023, 12:35 SANCHEZ v. FRANCE - 45581/15 (Judgment : No Article 10 - Freedom of expression-{general} : Grand Chamber) [2023] ECHR 418 (1… 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). II. INTERNATIONAL MATERIAL A. Communication on the Internet 1. Council 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, https://www.bailii.org/eu/cases/ECHR/2023/418.html 23/100

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Sanchez v. France (GC)

Case Law

Country

France

Country Location

Latitude: 46.808568018841505

Longitude: 2.799314618110868

Country Location (linked Case Law): France

Decision Date: May 15, 2023

Case Status: Closed

Case Outcome (Procedural)

Dismissed
Inadmissible
Motion Denied

Case Outcome (Disposition)

Judgment in Favor of Defendant/ Acquittal

Keywords

Access to Information
Content Regulation / Censorship
Digital Rights

Judicial Body: European Court of Human Rights (ECtHR)

Court Name: European Court of Human Rights (ECtHR)

Case Number: 45581/15

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

Case Significance: The decision establishes a binding or persuasive precedent within its jurisdiction.

Related Caselaw (self)

Source URL: Global Freedom of Expression

Collection

CIPIT

Date Updated: Sep 29, 2023

Primary Documents

SANCHEZ v. FRANCE - 45581_15 (Judgment _ No Article 10 - Freedom of expression-{general} _ Grand Chamber) [2023] ECHR 418 (15 May 2023).pdf
English
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CYRILLA: Global Digital Rights Law

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Sanchez v. France (GC)

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