29/09/2023, 12:35 SANCHEZ v. FRANCE - 45581/15 (Judgment : No Article 10 - Freedom of expression-{general} : Grand Chamber) [2023] ECHR 418 (1… 39. In its two judgments of 16 February 2010, cited above (see paragraph 38 above), the Court of Cassation further confirmed that, under section 93-3 of Law no. 82-652 of 29 July 1982, where an offence enumerated in Chapter IV of the Law of 29 July 1881 was committed by an electronic means of communication to the public, if not the author then the producer of the service would be prosecuted as principal, even if the statement had not undergone “prior fixing” before being transmitted to the public (Bull. crim., nos. 30 and 31). In addition, in one of those cases, the Court of Cassation quashed the judgment of a Court of Appeal which had acquitted the administrator of a blog, without ascertaining whether he could be prosecuted as producer, in proceedings concerning a comment posted thereon by a third party, even though that author had been identified (Court of Cassation, Criminal Division, 16 February 2010, appeal no. 09-81.064, Bull. crim., no. 31, and see also the further judgment in the same case, Court of Cassation, Criminal Division, 30 October 2012, appeal no. 10-88.825, Bull. crim., no. 233). In his report, the reporting judge at the Court of Cassation, when considering the questions raised in the examination of the first appeal on points of law (no. 09-81.064, giving rise to the judgment of 16 February 2010), expressed the following view on the question of the “autonomy of the proceedings”: “Does this fluidity of roles in the chain of Internet actors permit the public prosecutor or the victim of a press offence to ‘choose’ the person to be prosecuted, out of those listed in section 93-3? Taken literally, section 93-3, like sections 42 and 43 of the 1881 Law, assigns a particular status to each actor (principal, accomplice), following a strict mechanism (‘if not...’ meaning ‘in the absence of...’, ‘failing which ..’, without the reasons for the absence being explained: unidentified person, immunity, deliberate passingover of the previous level...). But the jurisprudence has long espoused a principle of ‘procedural autonomy’ whereby: ‘No statutory provision on freedom of the press requires proceedings first to be brought against the author of comments before proceedings can be brought against the publication director as principal or, under any status whatsoever, against other persons who may be criminally liable in accordance with sections 42 and 43 of that Law’ (see, for example, Court of Cassation, Criminal Division, 16 July 1992, no. 91-86.156; for other applications: Court of Cassation, Criminal Division, 20 January 1987, 20 October 2005, or Court of Cassation, First Civil Division, 12 July 2006).” 40. In addition, a preliminary reference on constitutionality (question prioritaire de constitutionnalité - QPC) was made to the Constitutional Council concerning the difference in treatment between, on the one hand, the publication director, the only actor to be mentioned in the last paragraph of section 93-3 inserted by Law no. 2009-669 of 12 June 2009, and on the other, the producer, who was not mentioned in that paragraph. https://www.bailii.org/eu/cases/ECHR/2023/418.html 19/100