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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… measures applied by the applicant company in order to prevent or remove defamatory comments; third, the liability of the actual authors of the comments as an alternative to the applicant company’s liability; and fourth, the consequences of the domestic proceedings for the applicant company (ibid., §§ 142-143; see also, for an application of these criteria in a different context, Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, no. 22947/13, §§ 69-70, 2 February 2016). 164. In view of the particular nature of the Internet, the “duties and responsibilities” that are to be conferred on a news portal for the purposes of Article 10 may differ to some degree from those of a traditional publisher as regards third-party content (see Delfi AS, cited above, § 113; see also Orlovskaya Iskra, cited above, § 109). 165. Based on the above criteria, the Court found that the domestic award of damages against the Internet news portal for insulting comments posted on its website by anonymous third parties had been justified, under Article 10 of the Convention, taking into account in particular the extreme nature of the comments in question, amounting as they did to hate speech and speech inciting violence (see Delfi AS, cited above, § 162). 166. In the case of a comment posted on an association’s blog it is also important to examine the size of the entity and whether or not it is engaged in a profit-making activity in order to assess the likelihood that it would attract a large number of comments or would be widely read (see Pihl v. Sweden (dec.), no. 74742/14, § 31, 7 February 2017; contrast Delfi AS, cited above, §§ 115-16). In striking a fair balance between an individual’s right to respect for his or her private life under Article 8 and the right to freedom of expression under Article 10, the nature of the comment will have to be taken into consideration, in order to ascertain whether it amounted to hate speech or incitement to violence, together with the steps that were taken after a request for its removal by the person targeted in the impugned remarks (see Pihl, cited above, § 37, and Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt, cited above, §§ 76 and 80-83). (b) Application of those principles to the present case 167. The Grand Chamber observes that the Chamber, in its judgment, set out as follows the approach upon which it proposed to base its reasoning: “79. The Court observes that the domestic courts found the applicant guilty of the offence of inciting hatred or violence against a group in general, and the individual L.T. in particular, on account of their origin or the fact of belonging, or not belonging, to a given ethnicity, nation, race or religion ... https://www.bailii.org/eu/cases/ECHR/2023/418.html 66/100

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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
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Sanchez v. France (GC)

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