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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… 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 (C210/16, 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. https://www.bailii.org/eu/cases/ECHR/2023/418.html 42/100

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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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