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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… the courts must find that by both its meaning and scope, the text at issue may either arouse a feeling of hostility or rejection, or incite the public to hatred or violence against a specific person or group (Court of Cassation, Criminal Division, 16 July 1992, Bull. crim., no. 273; Court of Cassation, Criminal Division, 14 May 2002, appeal no. 01-85.482; Court of Cassation, Criminal Division, 30 May 2007, appeal no. 06-84.328; Court of Cassation, Criminal Division, 29 January 2008, appeal no. 07-83.695, and Court of Cassation, Criminal Division, 3 February 2009, appeal nos. 06-83.063 and 08-82.402). Certain remarks may also give rise to sanctions if their meaning is implicit (Court of Cassation, Criminal Division, 16 July 1992, Bull. crim., no. 273). 2. Legislation subsequent to circumstances of present case 45. The “LCEN” Act (see paragraph 36 above) clarifies the conditions in which “hosts”, that is, “natural or legal persons which provide, even free of charge, with a view to transmission to the public via online communication services, the storage of signs, writings, images, sounds or texts of any kind provided by the recipients of such services”, such as Facebook, may be deemed to have had knowledge of offending messages. Hosts cannot be held civilly liable for activities or information stored at the request of a recipient of those services “if they did not have actual knowledge of their manifestly unlawful nature or of facts and circumstances indicating that nature or if, from the time they became aware of it, they acted promptly to remove the data or to render access thereto impossible”, “knowledge of the facts in issue [being] presumed” where the content in question had been notified to them beforehand as provided in section 5 of the Act. Section 6 of the “LCEN” Act provides, however, that hosts “are not producers within the meaning of section 93-3 of Law no. 82-652 of 29 July 1982 on audiovisual communication”. Furthermore, in a decision of 10 June 2004 (no. 2004‑496 DC), the Constitutional Council stated that the provisions of the Law of 21 June 2004 “[could] not have the effect of engaging the liability of a host which ha[d] not removed information that ha[d] been denounced as unlawful by a third party if it [was] not manifestly of such nature or if its removal ha[d] not been ordered by a court”. 46. Furthermore, Law no. 2020-766 of 24 June 2020, on the combat against hateful content on the Internet (and which was the subject of Constitutional Council decision no. 2020-801 DC of 18 June 2020, declaring numerous provisions to be unconstitutional) created an online hate “Observatory”. Its mission is to monitor and analyse developments in this area, by involving operators (in particular of social networks such as Facebook), associations, authorities and researchers concerned with the combat against and prevention of such acts. Working groups have been tasked with reflecting on the concept of hateful content, improving https://www.bailii.org/eu/cases/ECHR/2023/418.html 22/100

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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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