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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… 34. In a judgment of 17 March 2015 the Court of Cassation dismissed his appeal on points of law, in particular with regard to Article 10 of the Convention, with the following reasoning: “... first, the offence of incitement ... is made out where, as in the present case, the court finds that, by both their meaning and their scope, the impugned texts may arouse a feeling of rejection or hostility, hatred or violence, towards a group or an individual on account of a particular religion; ... second, since the above-mentioned text falls foul of the restrictions provided for in paragraph 2 of Article 10 of the European Convention on Human Rights, the principle of freedom of expression enshrined in paragraph 1 of that Article cannot be relied upon; ...” RELEVANT LEGAL FRAMEWORK AND PRACTICE I. DOMESTIC LAW A. Freedom of the Press Act (Law of 29 July 1881) 35. The relevant provisions, in the version of the Act that was applicable at the time of the acts for which the applicant was prosecuted, read as follows: Section 23 “Anyone who, by uttering speeches, cries or threats in a public place or assembly, or by means of a written or printed text, drawing, engraving, painting, emblem, image, or any other written, spoken or pictorial item sold or distributed, offered for sale or exhibited in a public place or assembly, or by means of a placard or notice exhibited in a place where it can be seen by the public, or by any electronic means of communication to the public, has directly incited a perpetrator or perpetrators to commit a serious crime (crime) or other major offence (délit), and if the incitement has been acted upon, shall be punished as an accomplice in the said offence. This provision shall also be applicable where the incitement has been followed only by an attempt to commit a serious crime (crime) under Article 2 of the Criminal Code.” Section 24 (eighth and tenth to twelfth paragraphs) “... Anyone who, by one of the means referred to in section 23, has incited discrimination, hatred or violence against a person or group on account of their origin or of their belonging, or not belonging, to a given ethnicity, nation, race or religion, shall be liable to a one-year prison term and a fine of 45,000 euros, or only one of those two sanctions. ... Where a conviction is secured for one of the offences provided for in the two preceding paragraphs, the court may further order: (1) the deprivation of the rights listed in paragraphs 2 and 3 of Article 131-26 of the Criminal Code for a maximum of five years, save where the offender’s liability https://www.bailii.org/eu/cases/ECHR/2023/418.html 16/100

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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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