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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… various actors in a complex digital “ecosystem”. Holding a Facebook “wall” owner criminally liable for failing to take prompt, pre-notification action against hate speech by identifiable authors was a disproportionate measure with a potential chilling effect. Any liability should be shared between the authors of the comments if they could be identified and the other actors involved, in line with a “graduated and differentiated” approach. 121. EISi submitted in particular that social media platforms had inherent characteristics that were incompatible with editorial control such as that applied by the press and that it was not possible to require monitoring of all comments in the first twenty-four hours of publication without imposing a disproportionate burden. It advocated a “notice-andtakedown” model of liability enforcement, with the exception of situations where the intermediary had itself incited the unlawful comments in question. C. The Court’s assessment 1. Whether there has been an interference 122. It is not in dispute between the parties that the applicant’s criminal conviction constituted an interference with his right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention. The Court sees no reason to hold otherwise (see, in the same vein, Delfi AS, cited above, § 118). 123. Such interference will be in breach of the Convention unless it was “prescribed by law”, pursued one or more of the legitimate aims referred to in the second paragraph of Article 10 and was “necessary in a democratic society”. 2. Whether the interference was lawful (a) General principles 124. The Court reiterates that the expression “prescribed by law” in the second paragraph of Article 10 not only requires that the impugned measure should have a legal basis in domestic law, but also refers to the quality of the law in question, which should be accessible to the person concerned and foreseeable as to its effects (see, among other authorities, NIT S.R.L. v. Republic of Moldova [GC], no. 28470/12, § 158, 5 April 2022; Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, § 142, 27 June 2017; and Delfi AS, cited above, § 120). 125. As regards the requirement of foreseeability, the Court has repeatedly held that a norm cannot be regarded as a “law” within the https://www.bailii.org/eu/cases/ECHR/2023/418.html 53/100

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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
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Sanchez v. France (GC)

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