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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… In a decision of 16 September 2011 (no. 2011-164 QPC), the Constitutional Council declared section 93-3 of Law no. 82-652 of 29 July 1982 on audiovisual communication to be compliant with the Constitution, subject to the following interpretative reservation: “7. Consequently, taking into account, on the one hand, the specific liability applicable to the publication director under the first and last paragraphs of section 93‑3 and, on the other, the characteristics of the Internet which, as the relevant rules and techniques now stand, allow the author of a comment disseminated on the Internet to preserve his or her anonymity, the provisions under review cannot, without establishing an irrebuttable presumption of criminal liability in breach of the aforementioned constitutional requirements, be interpreted as allowing the creator or administrator of an online website for communication to the public, rendering comments by Internet users publicly accessible, to be held criminally liable as producer solely on account of the content of comments of which he or she had no knowledge before they were posted online. Subject to that reservation, the provisions under review are not incompatible with Article 9 of the Declaration of 1789.” 41. In its case-law, the Criminal Division of the Court of Cassation subsequently drew the appropriate conclusions from the Constitutional Council’s decision of 16 September 2011 (see paragraph 40 above), in a judgment of 31 January 2012 (appeal no. 10-80.010, Bull. crim., no. 233; see also, in the same vein, Court of Cassation, Criminal Division, 30 October 2012, appeal no. 10-88.825): “It can be inferred from section 93-3 of the Law of 29 July 1982 as amended, interpreted in line with the reservation set forth by the Constitutional Council in its decision QPC no. 2011-64 of 16 September 2011, that the criminal liability of the producer of a website intended for communication, including the public transmission of comments posted by its users, will only be engaged in respect of such comments if it can be established that the producer had knowledge of their content before they were posted or otherwise if he or she failed to act promptly to delete the comment at issue upon becoming aware thereof. It is thus decided to quash the judgment which declared the creator of an online discussion forum guilty of defamation, on account of the text posted on this personal‑contribution forum by a user, without ascertaining whether, in his capacity as producer within the meaning of the above-mentioned legislation, he had knowledge, prior to its posting, of the content of this message, or otherwise whether he had failed to delete the text promptly after becoming aware of it; ...” D. Other relevant domestic law material 1. Case-law of the Court of Cassation 42. The Court of Cassation has ruled that the use of the Internet is covered by the formula “any electronic means of communication to the public” (Court of Cassation, Criminal Division, 6 May 2003, Bull. crim., no. 94; and Court of Cassation, Criminal Division, 10 May 2005, Bull. https://www.bailii.org/eu/cases/ECHR/2023/418.html 20/100

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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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