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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… 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; ...” B. 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: https://www.bailii.org/eu/cases/ECHR/2023/418.html 17/100

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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: 15 de mai. de 2023

Case Status: Closed

Case Outcome (Procedural)

Dismissed
Inadmissible
Motion Denied

Case Outcome (Disposition)

Judgment in Favor of Defendant

Keywords

Access to Information
Content Regulation / Censorship
Digital Rights

Judicial Body: 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.

Related Caselaw (self)

Collection

CIPIT

Date Updated: 29 de set. de 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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Sanchez v. France (GC)

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