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A Politician Held Liable for Comments Provoking Racial Hatred Posted by Third Parties on his Public Facebook "Wall"

posted 5 months ago

ECHR Grand Chamber Sanchez v. France, May 15, 2023, no. 45581/15

In a decision handed down on May 15, 2023, the Grand Chamber of the European Court of Human Rights (ECHR) ruled for the first time on the liability of an account holder on the Facebook social network for comments posted by third parties on his “wall”.

The case concerned an elected representative, the Front National mayor of Beaucaire in France and candidate in the legislative elections, who in October 2011 published an ironic post about his political opponent on his public Facebook account.

This post stirred up a number of messages posted by third parties on the mayor’s “wall”, inciting discrimination, hatred and violence against a group of people on the grounds of their adherence to the Muslim religion, all of which are punishable under article 24 paragraph 8 of the French July 29, 1881 law on freedom of the press.

The author of one of these messages deleted it, while another one remained online. In fact, the elected representative had not deleted this second message, and simply had published a post on his Facebook “wall” inviting his “friends” to “monitor the content of [their] comments“.

The elected representative was found guilty by the Criminal Court of the aforementioned offence of incitement to racial hatred, and fined as producer for failing to promptly delete the comments of which he had been made aware, even though he had not been formally requested to do so.

This conviction was upheld by the Court of Appeal and then by the Criminal Division of the French Supreme Court.

As a reminder, the notion of producer set out in paragraph 2 of article 93-3 of the French law on audiovisual communication of July 29, 1982 has been defined in case law as anyone “who has taken the initiative to create an online public communication service with a view to exchanging opinions on themes defined in advance” (Cass. crim February 16 2010, no. 09-81064 and no. 08-86301).

Since the decision handed down by the French Constitutional Council on September 16, 2011 (CC September 16, 2011, no. 2011-164), the producer’s liability regime follows that of the publication director who, in accordance with the last paragraph of the aforementioned article 93-3, may be held liable if he/she has not promptly removed the impugned comments of which he/she was aware, without the need for prior notification.

This liability regime differs from that applicable to web hosts under article 6 of the French law of June 21, 2004 on confidence in the digital economy (LCEN), which states that knowledge of the disputed facts is presumed to have been acquired once the disputed content has been notified to the host.

The elected representative appealed to the ECHR, arguing that his conviction infringed article 10 of the European Convention on Human Rights, as it constituted an interference with freedom of expression that was unnecessary in a democratic society.

In this case, the ECHR recognized that the comments in question were “undoubtedly hate speech” in that they referred to a specific group of people, in this case Muslims, associating them with “objectively insulting or hurtful terms” and with delinquency.

The issue at stake in the ruling was not the unlawfulness of the remarks in question, but their imputation to the elected representative, who was not the author and whose initial publication was not reprehensible.

In its Delfi vs Estonia decision (ECHR June 16, 2015, no. 64569/09), the ECHR had already ruled on liability for comments published by third parties on the Internet. The Court had upheld the conviction of the publisher of a discussion forum for unlawful comments published by Internet users, on the grounds of the inadequacy of the site’s moderation procedures, the manifestly unlawful nature of the messages that had been published and the lack of promptness in deleting them after they had been reported.

In this case, the Court validated the producer’s liability regime, which, unlike that of the web host, did not require prior notification of the disputed comments, pointing out that “it is not for the Court to rule on the appropriateness of the techniques chosen by the legislature of a State“.

Secondly, the ECHR ruled that in the case of the Facebook social network, where a priori moderation is impossible, account holders must exercise “a posteriori control or prior filtering intended to identify clearly unlawful comments as quickly as possible and to remove them within a reasonable time, even in the absence of notification from the injured party“.

While the Court recalls that the responsibility of the Facebook “wall” owner is subordinate to his/her knowledge of the contentious comments posted there by third parties, it requires a minimum level of control on his/her part, which is assessed in the light of a range of indicators such as the number of reports and reactions to comments, or the frequency with which the account holder consults his/her account.

In this case, the Court ruled that the warning message in which the elected account holder urged his “Facebook friends” to monitor the content of their comments did not exempt him from carrying out this minimum control and attested to his “awareness of the problems posed by certain publications on the wall of his account”.

The Court advocates a “shared responsibility on the part of all those involved […], graduated according to the objective situation of each individual“, and deems it appropriate to carry out a “proportionality check according to the level of responsibility likely to weigh on the person targeted“.

Thus, the Court appears to impose an obligation on the holder of a social networking account to control the publications posted there, according to his/her status and level of responsibility.

It considers that this responsibility is heightened for political figures, particularly during election campaigns.

Indeed, the Court took into account the applicant’s status as an elected official and candidate in an election “likely to influence voters, or even to incite them directly or indirectly to adopt positions or conduct that may prove unlawful“. It also took into consideration the electoral context in which “the impact of racist and xenophobic discourse becomes greater and more damaging“.

Political figures therefore have a heightened duty of vigilance, particularly in the context of an election campaign, over and above that of private individuals.

Lastly, the Court endorsed the French courts’ stringent assessment of the time limit within which the Facebook account holder must delete unlawful comments.

This requirement was described as “excessive and unrealistic” in this case by Judge Mourou-Vikström (who had expressed a dissenting opinion in the first judgment delivered on the issue on September 2, 2021).

The elected official was found guilty because of a comment posted on his Facebook “wall” that had been deleted by its author less than 24 hours after it had been put online.

The severity of this position, according to which a reaction time of less than 24 hours is reasonable, is explained by the applicant’s status as an elected official and candidate in a legislative election.

Stéphanie Zaks

Attorney at the Paris Bar – France

Member of the Scientific Council of the Association des Avocats Praticiens du Droit de la Presse (AAPDP)

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