29/09/2023, 12:35 SANCHEZ v. FRANCE - 45581/15 (Judgment : No Article 10 - Freedom of expression-{general} : Grand Chamber) [2023] ECHR 418 (1… which creates and provides a social network for its users, or by the account holder, who uses the platform to post his or her own articles or views while allowing other users to add their comments. Referring to the principles which emerge from its case-law (see paragraphs 158 et seq. above), the Court would emphasise the fact that an account holder cannot claim any right to impunity in his or her use of electronic resources made available on the Internet and that such a person has a duty to act within the confines of conduct that can reasonably be expected of him or her (see also paragraph 185 above). 191. In the present case, no regulation required the automatic filtering of comments and there was no practical possibility of prior content moderation on Facebook (see paragraphs 82 and 106 above). Accordingly, the question arises as to what steps the applicant ought to have - or could have – reasonably taken in his capacity as “producer” within the meaning of section 93-3 of Law no. 82-652 of 29 July 1982. 192. In this connection the Court would first point out that in his initial post the applicant had not conveyed a message potentially constituting or encouraging hate speech or a call to violence (see paragraphs 14 and 181 above). 193. It further notes that the applicant had been free to decide whether or not to make access to the “wall” of his Facebook account public. The domestic courts thus took into account the fact that he had decided to make it publicly accessible by choice; the Nîmes Court of Appeal inferred that he had “therefore authorised his friends to post comments on it” (see paragraphs 28 and 26 above). The Court, while agreeing with this observation, takes the view that he cannot be reproached for this decision in itself, as it was a technical means made available to him by the platform which enabled him to communicate with voters in his capacity as a politician and as a candidate standing for election. Nevertheless, in view of the local and election-related tensions at the time (see, in particular, paragraph 176 above), that option was clearly not without potentially serious consequences, as the applicant must have been aware in the circumstances. The Court thus finds it legitimate to make a distinction, as the domestic courts did, between limiting access to the Facebook “wall” to certain individuals and making it accessible to the general public. In the latter case, everyone, and therefore especially a politician experienced in communication to the public, must be aware of the greater risk of excessive and immoderate remarks that might appear and necessarily become visible to a wider audience. This is without doubt a major factual element, directly linked to the deliberate choice of the applicant, who was - as the Court has already emphasised - not only a https://www.bailii.org/eu/cases/ECHR/2023/418.html 73/100