29/09/2023, 12:35 SANCHEZ v. FRANCE - 45581/15 (Judgment : No Article 10 - Freedom of expression-{general} : Grand Chamber) [2023] ECHR 418 (1… CONCURRING OPINION OF JUDGE KŪRIS 1. I find a lot of merit in the arguments of Judge Bošnjak expressed in his dissenting opinion regarding the dubious foreseeability of the impugned measure and its rather shaky necessity. I had strong hesitations when debating whether or not to vote with the majority in finding that there had been no violation of Article 10 of the Convention. What finally tilted my vote in that direction was the clearly insufficient persuasiveness of some of the applicant’s submissions, in particular as regards his alleged inability to monitor posts by his friends on his Facebook “wall”, especially given how few comments his message received. No less important was the point that, in assessing the measure in question, one should give adequate consideration to the specific circumstances in which the events evolved - their time and place, as well their politically and socially sensitive context. No doubt the domestic courts which examined the applicant’s case were much better placed for that purpose than any international court examining these matters more than eleven years later. Still, I am not sure that I would be able to support a finding of no violation of Article 10 in other factual circumstances. 2. With hindsight, I believe that the Court should have taken a tougher stance on hate-speech-inciting language also in other cases, e.g., in Perinçek v. Switzerland ([GC], no. 27510/08, ECHR 2015 (extracts)). I surmise that had that case (in which I was among the dissenters) been decided after the present one, its outcome would have been different. 3. Be that as it may, the statutory regulation of the so-called cascading criminal liability is disconcerting, both when applied to the “producers” of communication (such as the applicant), but also in and of itself, because it creates preconditions for indiscriminate penalisation of social media account holders for any “lack of diligence”. However, the Strasbourg Court is not a supranational constitutional court and is therefore not called to assess that regulation in abstracto. https://www.bailii.org/eu/cases/ECHR/2023/418.html 82/100