29/09/2023, 12:35 SANCHEZ v. FRANCE - 45581/15 (Judgment : No Article 10 - Freedom of expression-{general} : Grand Chamber) [2023] ECHR 418 (1… 102. As to the lawfulness of that interference, they referred in particular to the terms of section 24(8) of the Law of 29 July 1881 and to the case-law of the Court of Cassation, which illustrated the various situations in which the relevant offence had or had not been considered to have been committed. They also pointed out that racist remarks might not constitute incitement to hatred if they did not, even implicitly, call for or encourage discrimination, hatred or violence, emphasising that the courts would look at the intention behind the speech. The Government submitted that in the present case the domestic courts, in which Leila T. had brought proceedings, had given reasons for their decisions and had applied the usual tests. In their view, the political backdrop and the existence of an election campaign had been expressly taken into account. 103. As regards the imputability of the offence, the Government pointed out that the applicant had been convicted in his capacity as “producer” within the meaning of section 93-3 of Law no. 82-652 of 29 July 1982, which provided for two scenarios, depending on whether or not the message had been “fixed” prior to its transmission to the public. The definition of “producer” did not derive from statute law, but from the jurisprudence of the Court of Cassation and the Constitutional Council; they referred to the Constitutional Council’s decision of 16 September 2011 (QPC, no. 2011‑164) and to the case-law of the Court of Cassation, which had drawn the appropriate conclusions from that decision. They further submitted that the Court had previously held that imputing criminal liability to the “producer” was not incompatible with the Convention (they referred to Radio France and Others v. France, no. 53984/00, § 24, ECHR 2004 II). 104. The Government observed that the applicant had been prosecuted for specific conduct directly linked to his status as producer, being the account holder, whereas the authors had been prosecuted and convicted as accomplices, in accordance with section 93-3 of Law no. 82-652 of 29 July 1982. 105. They submitted that political debate was not exempt from restrictions in the Court’s case-law, as politicians could be held criminally liable for hate speech at political rallies if it was uttered publicly. The liability of a politician, like that of a private individual, for unlawful remarks made by third parties on their Facebook “wall”, could be engaged irrespective of whether the proceedings were criminal or civil. The Government also pointed out that while a political party might be held liable for unlawful remarks posted by third parties in the context of an account that it had created on a social network or medium as part of its activity, a legal entity could not, with certain exceptions, be prosecuted for offences under the Freedom of the Press Act of 29 July 1881. In any https://www.bailii.org/eu/cases/ECHR/2023/418.html 49/100