JUDGMENT
Sanchez v. France 02.0.2021 (app. no. 45581/15)
see here
SUMMARY
The case concerned the criminal conviction of the applicant, at the time a local councillor who was
standing for election to Parliament, for incitement to hatred or violence against a group of people or
an individual on the grounds of their membership of a specific religion, following his failure to take
prompt action in deleting comments posted by others on the wall of his Facebook account.
The Court reiterated that tolerance and respect for the equal dignity of all human beings constituted
the foundations of a democratic, pluralistic society. As a result, it could in principle be considered
necessary to punish or even prevent all forms of expression which spread, incited, promoted or
justified hatred based on intolerance.
The Court emphasised that it attached the highest importance to freedom of expression in the
context of political debate and considered that very strong reasons were required to justify
restrictions on political speech and that in the run-up to an election, opinions and information of all
kinds should be permitted to circulate freely. In the specific circumstances of the case, however, the
Court found that the domestic courts’ decision to convict the applicant on account of his failure to
take prompt action in deleting the clearly unlawful comments posted by others on the wall of his
Facebook account, which was used in connection with his election campaign, had been based on
relevant and sufficient reasons linked to his lack of vigilance and responsiveness. The interference in
question could thus be seen as “necessary in a democratic society” and there had been no violation
of Article 10 of the Convention.
PROVISION
Article 10
PRINCIPAL FACTS
The applicant, Julien Sanchez, is a French national who was born in 1983 and lives in Beaucaire
(France).
At the time of the events, Mr Sanchez – currently mayor of the town of Beaucaire and chair of the
Rassemblement National (National Rally) group in the Occitanie Regional Council – was standing for
election to Parliament for the Front National (FN) in the Nîmes constituency. F.P., at that time a
member of the European Parliament (MEP) and first deputy to the mayor of Nîmes, was one of his
political opponents. On 24 October 2011 Mr Sanchez published a post about F.P. on the wall of his
publicly accessible Facebook account, which was managed by him personally: “While the FN has
launched its new national website on schedule, spare a thought for the Nîmes UMP [Union for a
Popular Movement] MEP [F.P.], whose site, which was supposed to be launched today, is displaying
an ominous triple zero on its home page …”. Another user, S.B., wrote the following comment: “This great man has transformed Nîmes into Algiers, there is not a street without a kebab shop and mosque; drug dealers and prostitutes reign supreme, no surprise he chose Brussels, capital of the
new world order of sharia …. Thanks UMPS [amalgam of UMP and Socialist Party], at least that saves
us on the flights and hotel … I love this free version of Club Med … Thanks [F.] and kisses to Leila
([L.]) … Finally, a blog that changes our life …” A further user, L.R., added three other comments
directed at Muslims.
On 25 October 2011 L.T., the partner of F.P., became aware of the comments. Feeling directly and
personally insulted by what she viewed as “racist” statements, she went straight away to the
hairdressing salon managed by S.B., whom she knew personally. S.B. deleted his comment
immediately.
On 26 October 2011 L.T. wrote to the Nîmes public prosecutor to lodge a criminal complaint against
Mr Sanchez, S.B. and L.R. on account of the offending comments published on Mr Sanchez’s
Facebook page. On 27 October 2011 Mr Sanchez posted a message on the wall of his Facebook
account inviting users to “monitor the content of [their] comments”, but did not intervene in
relation to the comments already posted.
Mr Sanchez, S.B. and L.R. were summoned to appear before the Nîmes Criminal Court in connection
with the publication of the comments in question on the wall of the applicant’s Facebook account, to
answer charges of incitement to hatred or violence against a group of people, in particular L.T., on
the grounds of their origin or their membership or non-membership of a specific ethnic group,
nation, race or religion. On 28 February 2013 the Criminal Court found Mr Sanchez, S.B. and L.R.
guilty as charged and ordered each of them to pay a fine of 4,000 euros (EUR). S.B. and Mr Sanchez
were also ordered, jointly and severally, to pay the sum of EUR 1,000 to L.T., the civil-party claimant,
in compensation for non-pecuniary damage. The court concluded that, having set up a public
communication service by electronic means on his own initiative for the purpose of exchanging
opinions, and having left the offending comments still visible as of 6 December 2011, Mr Sanchez
had failed to act promptly in stopping their dissemination and was therefore guilty as the “producer”
of an online public communication site, and hence as the principal offender.
Mr Sanchez and S.B. appealed. S.B. subsequently withdrew his appeal.
The Nîmes Court of Appeal upheld the guilty verdict against Mr Sanchez, reducing the fine to
EUR 3,000. It also ordered him to pay L.T. EUR 1,000 in costs. The Court of Appeal held that the
Criminal Court had been correct in finding that the comments clearly defined the group of people
concerned, namely those of Muslim faith, and that associating the Muslim community with crime
and insecurity in the city of Nîmes was likely to arouse a strong feeling of rejection or hostility
towards that group. Moreover, it held that by knowingly making his Facebook wall public,
Mr Sanchez had assumed responsibility for the content of the comments posted – which, according
to the statements he had made to justify his position, he considered compatible with freedom of
expression – and that his status as a political figure required even greater vigilance on his part.
The applicant appealed on points of law to the Court of Cassation, which in a judgment of 17 March
2015 dismissed his appeal.
The applicant submitted that his conviction on account of comments posted by others on the wall of
his Facebook account was in breach of Article 10 (freedom of expression) of the Convention.
THE DECISION OF THE COURT…
Article 10
The Court observed that the Nîmes Criminal Court had found that the applicant, who on his own
initiative had set up a communication service open to the public, had left the offending comments
visible for some six weeks after they had been posted, without taking prompt action to stop their
dissemination. The Nîmes Court of Appeal, upholding the first-instance judgment, had pointed out
that, in his capacity as an elected representative and public figure, the applicant had knowingly
made the wall of his Facebook account public, thus allowing his friends to post their comments
there, and in doing so had assumed responsibility for the content of the statements published. It had
held that the applicant had not acted promptly to stop the dissemination of the comments in
question and that he had also justified his position by saying that in his view, such comments were
compatible with freedom of expression, and had therefore deliberately left them on his Facebook
wall.
Regarding the nature of the comments, the Court noted firstly that they were clearly unlawful. Both
the Criminal Court and the Court of Appeal had established, on the one hand, that the comments
clearly defined the group of people concerned, namely those of Muslim faith, and that the
association of the Muslim community with crime and insecurity in the city of Nîmes by equating that
group with “drug dealers and prostitutes” who “reign supreme”, “scum who sell drugs all day long”
or those responsible for “throwing stones at white people’s cars”, was likely to arouse a strong
feeling of rejection or hostility towards the group of people of Muslim faith, or those who were
perceived as such; and on the other hand, that the expression “Kisses to [L.]”, referring to L.T., who
was associated with F.P., the deputy to the mayor of Nîmes who had been portrayed as instrumental
in giving the city over to Muslims and hence to insecurity, had been such as to link L.T., on account of
her perceived membership of the Muslim community (by virtue of her first name), with the
transformation of the city, and thus arouse hatred and violence against her.
The Court reiterated that tolerance and respect for the equal dignity of all human beings constituted
the foundations of a democratic, pluralistic society. It could therefore be considered necessary to
punish or even prevent all forms of expression which spread, incited, promoted or justified hatred
based on intolerance, provided that any “formalities”, “conditions”, “restrictions” or “penalties”
imposed were proportionate to the legitimate aim pursued.
In an electoral context, while political parties enjoyed a wide freedom of expression, racist or
xenophobic discourse contributed to stirring up hatred and intolerance. The Court pointed out that
the particular responsibility of politicians in combating hate speech had been emphasised by the
Committee of Ministers of the Council of Europe in Recommendation R(97)20 on “hate speech” and
by the European Commission against Racism and Intolerance.
After examining the offending comments posted by S.B. and L.R., the Court found that the
conclusions reached by the domestic courts had been entirely justified. The language used had
clearly incited hatred and violence. In the Court’s view, personal attacks by means of insults, ridicule
or defamation directed at certain sectors of the population, or incitement to hatred and violence
against a person on account of membership of a particular religion, were sufficient for the
authorities to make it a priority to combat such behaviour when faced with irresponsible use of
freedom of expression that undermined the dignity, or even the safety, of the population groups or
sectors in question.
With regard to the applicant’s responsibility for statements published by third parties, the Court
noted that the comments were to be seen in the context of local political debate, particularly
relating to the parliamentary election campaign. While it was true that the Court attached the
highest importance to freedom of expression in the context of political debate and considered that
very strong reasons were required to justify restrictions on political speech, and that in the run-up to
an election, opinions and information of all kinds should be permitted to circulate freely, it
nevertheless referred to its finding that the comments made in the present case had been clearly
unlawful. Furthermore, the Court observed that the applicant had not been criticised for making use
of his right to freedom of expression, particularly in the context of political debate, but had been
accused of a lack of vigilance and responsiveness in relation to the comments posted on the wall of
his Facebook account. The Court thus concluded that both the Criminal Court and the Court of
Appeal had based their reasoning regarding the applicant’s responsibility on relevant and sufficient
grounds for the purposes of Article 10 of the Convention.
As to the steps taken by the applicant, the Court observed that the domestic courts had established
responsibility on his part on the basis of several factors. The applicant had knowingly made the wall
of his Facebook account public, thereby allowing his friends to post comments there. He had thus
been under a duty to monitor the content of the statements published. In addition, the Criminal
Court had emphasised that the applicant could not have been unaware that his account was likely to
attract comments of a political nature, which by definition were polemical and should therefore
have been monitored even more carefully by him. The Court of Appeal had held, along similar lines,
that his status as a political figure required even greater vigilance on his part. The Criminal Court had
specifically noted that the comments by L.R. had still been visible some six weeks after they had
been posted. In those circumstances, the Court found that the reasons given by the Criminal Court
and the Court of Appeal regarding the steps taken by the applicant had been relevant and sufficient
for the purposes of Article 10 of the Convention.
With regard to the responsibility of the authors of the comments, the Court observed that they had
been identified. The applicant had been held responsible, under section 93-3 of the Law of 29 July
1982, as the producer of an online public communication site. The domestic courts had made out
the facts establishing responsibility on the part of the applicant, who had not been prosecuted in
place of S.B. and L.R. – both of whom, indeed, had also been convicted – but on account of specific
conduct directly linked to his status as the owner of the wall of his Facebook account. The comments
made in the present case had been clearly unlawful and in breach of the Facebook terms of use. The
Court considered that the domestic courts had therefore based their decisions on relevant and
sufficient grounds.
Regarding the consequences of the domestic proceedings for the applicant, the Court observed that
he had been ordered to pay a fine of EUR 3,000. It held that, bearing in mind the sentence he could
have faced and the lack of any other established consequences, the interference with the applicant’s
right to freedom of expression had not been disproportionate.
In the specific circumstances of the case, the Court found that the domestic courts’ decision to
convict the applicant on account of his failure to take prompt action in deleting the unlawful
comments posted by others on the wall of his Facebook account, which was used in connection with
his election campaign, had been based on relevant and sufficient reasons, having regard to the
margin of appreciation afforded to the respondent State. Accordingly, the interference complained
of could be seen as “necessary in a democratic society”. There had therefore been no violation of
Article 10 of the Convention.
Separate opinions
Judge Mourou-Vikström expressed a separate opinion, which is annexed to the judgment
Politician fined in criminal proceedings for failing to act promptly by deleting comments from his public Facebook account inciting hatred: no violation of the Convention
JUDGMENT
Sanchez v. France 02.0.2021 (app. no. 45581/15)
see here
SUMMARY
The case concerned the criminal conviction of the applicant, at the time a local councillor who was
standing for election to Parliament, for incitement to hatred or violence against a group of people or
an individual on the grounds of their membership of a specific religion, following his failure to take
prompt action in deleting comments posted by others on the wall of his Facebook account.
The Court reiterated that tolerance and respect for the equal dignity of all human beings constituted
the foundations of a democratic, pluralistic society. As a result, it could in principle be considered
necessary to punish or even prevent all forms of expression which spread, incited, promoted or
justified hatred based on intolerance.
The Court emphasised that it attached the highest importance to freedom of expression in the
context of political debate and considered that very strong reasons were required to justify
restrictions on political speech and that in the run-up to an election, opinions and information of all
kinds should be permitted to circulate freely. In the specific circumstances of the case, however, the
Court found that the domestic courts’ decision to convict the applicant on account of his failure to
take prompt action in deleting the clearly unlawful comments posted by others on the wall of his
Facebook account, which was used in connection with his election campaign, had been based on
relevant and sufficient reasons linked to his lack of vigilance and responsiveness. The interference in
question could thus be seen as “necessary in a democratic society” and there had been no violation
of Article 10 of the Convention.
PROVISION
Article 10
PRINCIPAL FACTS
The applicant, Julien Sanchez, is a French national who was born in 1983 and lives in Beaucaire
(France).
At the time of the events, Mr Sanchez – currently mayor of the town of Beaucaire and chair of the
Rassemblement National (National Rally) group in the Occitanie Regional Council – was standing for
election to Parliament for the Front National (FN) in the Nîmes constituency. F.P., at that time a
member of the European Parliament (MEP) and first deputy to the mayor of Nîmes, was one of his
political opponents. On 24 October 2011 Mr Sanchez published a post about F.P. on the wall of his
publicly accessible Facebook account, which was managed by him personally: “While the FN has
launched its new national website on schedule, spare a thought for the Nîmes UMP [Union for a
Popular Movement] MEP [F.P.], whose site, which was supposed to be launched today, is displaying
an ominous triple zero on its home page …”. Another user, S.B., wrote the following comment: “This great man has transformed Nîmes into Algiers, there is not a street without a kebab shop and mosque; drug dealers and prostitutes reign supreme, no surprise he chose Brussels, capital of the
new world order of sharia …. Thanks UMPS [amalgam of UMP and Socialist Party], at least that saves
us on the flights and hotel … I love this free version of Club Med … Thanks [F.] and kisses to Leila
([L.]) … Finally, a blog that changes our life …” A further user, L.R., added three other comments
directed at Muslims.
On 25 October 2011 L.T., the partner of F.P., became aware of the comments. Feeling directly and
personally insulted by what she viewed as “racist” statements, she went straight away to the
hairdressing salon managed by S.B., whom she knew personally. S.B. deleted his comment
immediately.
On 26 October 2011 L.T. wrote to the Nîmes public prosecutor to lodge a criminal complaint against
Mr Sanchez, S.B. and L.R. on account of the offending comments published on Mr Sanchez’s
Facebook page. On 27 October 2011 Mr Sanchez posted a message on the wall of his Facebook
account inviting users to “monitor the content of [their] comments”, but did not intervene in
relation to the comments already posted.
Mr Sanchez, S.B. and L.R. were summoned to appear before the Nîmes Criminal Court in connection
with the publication of the comments in question on the wall of the applicant’s Facebook account, to
answer charges of incitement to hatred or violence against a group of people, in particular L.T., on
the grounds of their origin or their membership or non-membership of a specific ethnic group,
nation, race or religion. On 28 February 2013 the Criminal Court found Mr Sanchez, S.B. and L.R.
guilty as charged and ordered each of them to pay a fine of 4,000 euros (EUR). S.B. and Mr Sanchez
were also ordered, jointly and severally, to pay the sum of EUR 1,000 to L.T., the civil-party claimant,
in compensation for non-pecuniary damage. The court concluded that, having set up a public
communication service by electronic means on his own initiative for the purpose of exchanging
opinions, and having left the offending comments still visible as of 6 December 2011, Mr Sanchez
had failed to act promptly in stopping their dissemination and was therefore guilty as the “producer”
of an online public communication site, and hence as the principal offender.
Mr Sanchez and S.B. appealed. S.B. subsequently withdrew his appeal.
The Nîmes Court of Appeal upheld the guilty verdict against Mr Sanchez, reducing the fine to
EUR 3,000. It also ordered him to pay L.T. EUR 1,000 in costs. The Court of Appeal held that the
Criminal Court had been correct in finding that the comments clearly defined the group of people
concerned, namely those of Muslim faith, and that associating the Muslim community with crime
and insecurity in the city of Nîmes was likely to arouse a strong feeling of rejection or hostility
towards that group. Moreover, it held that by knowingly making his Facebook wall public,
Mr Sanchez had assumed responsibility for the content of the comments posted – which, according
to the statements he had made to justify his position, he considered compatible with freedom of
expression – and that his status as a political figure required even greater vigilance on his part.
The applicant appealed on points of law to the Court of Cassation, which in a judgment of 17 March
2015 dismissed his appeal.
The applicant submitted that his conviction on account of comments posted by others on the wall of
his Facebook account was in breach of Article 10 (freedom of expression) of the Convention.
THE DECISION OF THE COURT…
Article 10
The Court observed that the Nîmes Criminal Court had found that the applicant, who on his own
initiative had set up a communication service open to the public, had left the offending comments
visible for some six weeks after they had been posted, without taking prompt action to stop their
dissemination. The Nîmes Court of Appeal, upholding the first-instance judgment, had pointed out
that, in his capacity as an elected representative and public figure, the applicant had knowingly
made the wall of his Facebook account public, thus allowing his friends to post their comments
there, and in doing so had assumed responsibility for the content of the statements published. It had
held that the applicant had not acted promptly to stop the dissemination of the comments in
question and that he had also justified his position by saying that in his view, such comments were
compatible with freedom of expression, and had therefore deliberately left them on his Facebook
wall.
Regarding the nature of the comments, the Court noted firstly that they were clearly unlawful. Both
the Criminal Court and the Court of Appeal had established, on the one hand, that the comments
clearly defined the group of people concerned, namely those of Muslim faith, and that the
association of the Muslim community with crime and insecurity in the city of Nîmes by equating that
group with “drug dealers and prostitutes” who “reign supreme”, “scum who sell drugs all day long”
or those responsible for “throwing stones at white people’s cars”, was likely to arouse a strong
feeling of rejection or hostility towards the group of people of Muslim faith, or those who were
perceived as such; and on the other hand, that the expression “Kisses to [L.]”, referring to L.T., who
was associated with F.P., the deputy to the mayor of Nîmes who had been portrayed as instrumental
in giving the city over to Muslims and hence to insecurity, had been such as to link L.T., on account of
her perceived membership of the Muslim community (by virtue of her first name), with the
transformation of the city, and thus arouse hatred and violence against her.
The Court reiterated that tolerance and respect for the equal dignity of all human beings constituted
the foundations of a democratic, pluralistic society. It could therefore be considered necessary to
punish or even prevent all forms of expression which spread, incited, promoted or justified hatred
based on intolerance, provided that any “formalities”, “conditions”, “restrictions” or “penalties”
imposed were proportionate to the legitimate aim pursued.
In an electoral context, while political parties enjoyed a wide freedom of expression, racist or
xenophobic discourse contributed to stirring up hatred and intolerance. The Court pointed out that
the particular responsibility of politicians in combating hate speech had been emphasised by the
Committee of Ministers of the Council of Europe in Recommendation R(97)20 on “hate speech” and
by the European Commission against Racism and Intolerance.
After examining the offending comments posted by S.B. and L.R., the Court found that the
conclusions reached by the domestic courts had been entirely justified. The language used had
clearly incited hatred and violence. In the Court’s view, personal attacks by means of insults, ridicule
or defamation directed at certain sectors of the population, or incitement to hatred and violence
against a person on account of membership of a particular religion, were sufficient for the
authorities to make it a priority to combat such behaviour when faced with irresponsible use of
freedom of expression that undermined the dignity, or even the safety, of the population groups or
sectors in question.
With regard to the applicant’s responsibility for statements published by third parties, the Court
noted that the comments were to be seen in the context of local political debate, particularly
relating to the parliamentary election campaign. While it was true that the Court attached the
highest importance to freedom of expression in the context of political debate and considered that
very strong reasons were required to justify restrictions on political speech, and that in the run-up to
an election, opinions and information of all kinds should be permitted to circulate freely, it
nevertheless referred to its finding that the comments made in the present case had been clearly
unlawful. Furthermore, the Court observed that the applicant had not been criticised for making use
of his right to freedom of expression, particularly in the context of political debate, but had been
accused of a lack of vigilance and responsiveness in relation to the comments posted on the wall of
his Facebook account. The Court thus concluded that both the Criminal Court and the Court of
Appeal had based their reasoning regarding the applicant’s responsibility on relevant and sufficient
grounds for the purposes of Article 10 of the Convention.
As to the steps taken by the applicant, the Court observed that the domestic courts had established
responsibility on his part on the basis of several factors. The applicant had knowingly made the wall
of his Facebook account public, thereby allowing his friends to post comments there. He had thus
been under a duty to monitor the content of the statements published. In addition, the Criminal
Court had emphasised that the applicant could not have been unaware that his account was likely to
attract comments of a political nature, which by definition were polemical and should therefore
have been monitored even more carefully by him. The Court of Appeal had held, along similar lines,
that his status as a political figure required even greater vigilance on his part. The Criminal Court had
specifically noted that the comments by L.R. had still been visible some six weeks after they had
been posted. In those circumstances, the Court found that the reasons given by the Criminal Court
and the Court of Appeal regarding the steps taken by the applicant had been relevant and sufficient
for the purposes of Article 10 of the Convention.
With regard to the responsibility of the authors of the comments, the Court observed that they had
been identified. The applicant had been held responsible, under section 93-3 of the Law of 29 July
1982, as the producer of an online public communication site. The domestic courts had made out
the facts establishing responsibility on the part of the applicant, who had not been prosecuted in
place of S.B. and L.R. – both of whom, indeed, had also been convicted – but on account of specific
conduct directly linked to his status as the owner of the wall of his Facebook account. The comments
made in the present case had been clearly unlawful and in breach of the Facebook terms of use. The
Court considered that the domestic courts had therefore based their decisions on relevant and
sufficient grounds.
Regarding the consequences of the domestic proceedings for the applicant, the Court observed that
he had been ordered to pay a fine of EUR 3,000. It held that, bearing in mind the sentence he could
have faced and the lack of any other established consequences, the interference with the applicant’s
right to freedom of expression had not been disproportionate.
In the specific circumstances of the case, the Court found that the domestic courts’ decision to
convict the applicant on account of his failure to take prompt action in deleting the unlawful
comments posted by others on the wall of his Facebook account, which was used in connection with
his election campaign, had been based on relevant and sufficient reasons, having regard to the
margin of appreciation afforded to the respondent State. Accordingly, the interference complained
of could be seen as “necessary in a democratic society”. There had therefore been no violation of
Article 10 of the Convention.
Separate opinions
Judge Mourou-Vikström expressed a separate opinion, which is annexed to the judgment