GRAND CHAMBER JUDGMENT
Sanchez v. France 16.05.2023 (app. no. 45581/15)
see here
SUMMARY
The application concerned the criminal conviction of the applicant, at the time a local councillor who
was standing for election to Parliament, for the offence of incitement to hatred or violence against a
group or an individual on grounds of religion, following his failure to take prompt action to delete
comments posted by third parties on the “wall” of his Facebook account. The applicant alleged that
his conviction had breached his right to freedom of expression under Article 10 of the Convention.
The criminal case had turned solely on the applicant’s lack of vigilance and failure to react in respect
of comments posted by others. It had thus raised the question of the shared liability of the various
actors involved in social media. The French criminal courts, applying a “cascading liability” regime
introduced by the Law of 29 July 1982, had convicted the authors for the unlawful messages
together with the applicant as the Facebook account holder, being characterised as “producer”.
First, the Court considered that the domestic legal framework, providing for a sharing of liability
between all those involved, had been sufficiently precise, for the purposes of Article 10 of the
Convention, to enable the applicant to regulate his conduct in the circumstances.
Secondly, the Court agreed with the domestic courts that the comments at issue, which had been
posted in the specific context of a forthcoming election, could be classified as hate speech, when
interpreted and analysed in terms of their immediate impact, and were therefore unlawful. Thirdly,
it took the view that the interference with the applicant’s freedom of expression pursued not only
the legitimate aim of protecting the reputation or rights of others, but also that of preventing
disorder or crime.
As the applicant had decided to make his Facebook “wall” publicly accessible and had “authorised
his friends to post comments”, in the Court’s view he could not have been unaware, in view of the
local tensions and ongoing election campaign around that time, that his choice was clearly not
without certain potentially serious consequences.
The Court concluded, taking account of the State’s margin of appreciation, that the decisions of the
domestic courts had been based on relevant and sufficient grounds, with regard both to the
applicant’s liability, as a politician, for the unlawful comments posted by the third parties, who had
themselves been identified and prosecuted as accomplices, and to the applicant’s criminal
conviction. The interference in question could thus be regarded as “necessary in a democratic
society”. There had therefore 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 – 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) party 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 posted a message about F.P. on his publicly
accessible Facebook “wall”, which he ran 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 …”.
Third parties, S.B. and L.R., added a number of comments under the applicant’s post.
On 25 October 2011 Leila T., the partner of F.P., became aware of the comments. Feeling directly
and personally insulted by what she viewed as “racist” remarks, she went straight away to the
hairdressing salon managed by S.B., whom she knew personally. S.B., who had been unaware that
the applicant’s Facebook “wall” was public, deleted his comment immediately.
On 26 October 2011 Leila 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 “wall”. On 27 October 2011 Mr Sanchez posted a message on his “wall” inviting users to
“be careful with 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 posting of the comments in question on the applicant’s Facebook “wall”, to answer charges
of incitement to hatred or violence against a group or individual, in particular Leila T., on account of
their origin or the fact of belonging or not belonging to 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). Mr Sanchez and S.B. were also ordered,
jointly, to pay the sum of EUR 1,000 to Leila T., as civil party, in compensation for her non-pecuniary
damage. The court concluded that, having set up a service for communication to the public 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 to
stop their dissemination and was therefore “guilty as principal offender”. It found S.B. and L.R. guilty
as accomplices.
Mr Sanchez lodged an appeal.
The Nîmes Court of Appeal upheld Mr Sanchez’s conviction, reducing the fine to EUR 3,000. It also
ordered him to pay Leila 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 concerned, namely persons 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 offending 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 politician required him to be all the more vigilant.
The applicant appealed on points of law to the Court of Cassation, which in a judgment of 17 March
2015 dismissed his appeal.
THE DECISION OF THE COURT…
Article 10
The Court began by noting that the applicant’s criminal conviction had been handed down on the
basis of section 23, first paragraph, section 24, eighth paragraph, of the Law of 29 July 1881, and
section 93-3 of Law no. 82-652 of 29 July 1982. As it had previously found, a criminal conviction
under sections 23 and 24 of the Law of 29 July 1881 met the requirement of foreseeability of the law
for the purposes of Article 10 of the Convention. In addition, the applicant had not substantiated his
allegation that the domestic courts’ interpretation had been arbitrary or manifestly unreasonable.
Section 93-3 of Law no. 82-652 of 29 July 1982 was formulated with sufficient precision, for the
purposes of Article 10 of the Convention, to enable the applicant to regulate his conduct in the
circumstances of the present case.
The Court took the view that there was no doubt, having regard to the reasoning given by the
domestic courts, that the interference pursued not only the legitimate aim of protecting the
reputation or the rights of others but also that of preventing disorder and crime.
After a lengthy overview of its case-law concerning freedom of expression, political discourse, hate
speech, the Internet and social media, the Court addressed the following points:
Context and nature of comments at issue
Noting that there was no universal definition of “hate speech”, the Court found it necessary to
examine the content of the comments at issue, which had been posted by two different authors, S.B.
and L.R., particularly in the light of the grounds given by the domestic courts.
The Criminal Court had noted at the outset that the remarks had “perfectly” defined a specific group
of persons, namely Muslims, and that the group was associated with objectively insulting and hurtful
language, accentuating the intended assimilation between a group – taken as a whole on account of
its religion – and criminality.
The Court acknowledged that L.R.’s comments had been made in a very specific context, in the runup to an election and on the Facebook “wall” of a candidate whose ideas he supported and for whom he was actually working as campaign assistant. The author had sought to complain about the local situation in language from which the applicant did not distance himself. The Court accepted
that the comments reflected a wish to complain of certain local difficulties, or even a degree of
social distress that might call for a political response, besides the fact that they corresponded to the
specific type of communication found on certain online portals. It reiterated nonetheless that, in an
election context, the impact of racist and xenophobic discourse became greater and more harmful,
particularly where the political and social climate was troubled and clear tensions existed within the
population. When interpreted and assessed in their immediate context, the comments at issue
genuinely amounted to hate speech. The Court thus found that the comments posted by S.B. and
L.R. on the applicant’s Facebook “wall” were clearly unlawful.
The political context and the applicant’s specific liability in respect of comments posted by third
parties
Referring to its Grand Chamber judgment in Delfi AS v. Estonia, the Court took the view that the
applicant’s Facebook “wall” was not comparable to a “large professionally managed Internet news
portal run on a commercial basis”. It thus approached the question in the light of the “duties and
responsibilities”, within the meaning of Article 10 § 2 of the Convention, to be assumed by
politicians when they decided to use social media for political purposes, particularly to meet
electoral goals, by opening publicly accessible fora on the Internet where the reactions and
comments of users could be posted. The applicant was not merely a private individual and he
himself had pointed out that he was using his Facebook account in his capacity as a local councillor,
for political purposes and in the run-up to an election.
The Court emphasised that the applicant’s initial post had not been at issue but the case had turned
solely on his lack of vigilance and failure to react in respect of comments posted by S.B. and L.R. It
noted that the attribution of liability for acts of third parties might vary depending on the
moderation or vetting techniques applied by Internet users who were characterised by law as
“producers” and who merely used social networks or accounts for non-commercial purposes. There
was no consensus on this issue among the member States. The Court was of the view, however, that
to engage a person’s liability as “producer”, within the meaning of section 93-3 of Law no. 82-652 of
29 July 1982, did not raise any difficulty as a matter of principle, provided that safeguards existed in
the apportionment of such liability, which was to be applied in a context of shared liability between
various actors, as was also the case for Internet hosts.
In the Court’s opinion, while professional entities which created social networks and made them
available to other users necessarily had certain obligations, there had to be a sharing of liability
between all the actors involved, allowing if necessary for the degree of liability and the manner of its
attribution to be graduated according to the objective situation of each one. In addition, the
domestic courts in the present case had referred to the applicant’s status as a politician and had inferred from this that he had been bound by a special obligation. Owing to a politician’s particular status and position in society, he or she was more likely to influence voters, or even to incite them, directly or indirectly, to adopt positions and conduct that might prove unlawful, thus explaining why
he or she could be expected to be “all the more vigilant”, to use the words of the Nîmes Court of
Appeal. The Court emphasised that this finding was not to be understood as entailing an inversion of
the principles established in its case-law hitherto and that the specific duties required of the
applicant on account of his status as politician were indissociable from the principles relating to the
rights which came with such status. The Nîmes Court of Appeal could usefully have referred to those
principles in order to strengthen its reasoning.
In the circumstances of the present case, while referring to its earlier finding that the content of the
comments published on the applicant’s “wall” were clearly unlawful, the Court found that the
Criminal Court and Nîmes Court of Appeal were best placed to assess the facts in the light of the
difficult local context and their acknowledged political dimension. The Court therefore fully
endorsed the Chamber’s view that the language used in the comments at issue had clearly incited
hatred and violence against a person on account of his or her religion and this could not be disguised
or minimised by the election context or by a wish to discuss local difficulties.
Steps taken by the applicant
The Court, observing that a minimum degree of subsequent moderation or automatic filtering would
be desirable in order to identify clearly unlawful comments, noted that the applicant had been free
to decide whether or not to make access to the “wall” of his Facebook account public. The domestic
courts had taken into account the fact that he had chosen to make it publicly accessible and had
“therefore authorised his friends to post comments on it”. The Court took the view that he could not
be reproached for this decision in itself. Nevertheless, in view of the local and election-related
tensions at the time, that option was clearly not without certain potentially serious consequences, as
the applicant must have been aware in the circumstances.
The Court further pointed out that the use of Facebook was subject to the acceptance of certain
terms and conditions laid down by the social network, in particular those in the “Statement of rights
and responsibilities” accepted by each user. The applicant had nevertheless seen fit to draw the
attention of his “friends” to the need for them to “be careful with the content of [their] comments”,
thus apparently showing that he had at least been aware of the issues raised by certain posts. He
had not, however, deleted the comments at issue here, nor had he taken the trouble to check, or to
have checked, the content of comments that were then publicly accessible. Turning more specifically
to S.B.’s comment, which had been promptly withdrawn by its author less than 24 hours after being
posted, the Grand Chamber accepted that the applicant could not have been required to have acted
even more promptly, while noting that it had been only one of the elements to be taken into
consideration in the case. Mr Sanchez had in fact been prosecuted, and ultimately convicted, not on
account of the remarks made by S.B. or L.R., but for failing to proceed with the prompt deletion of all
the unlawful comments posted by those authors on his Facebook “wall”. Those comments had been
responding to and complementing each other following the applicant’s initial post, so for the Court
they did not constitute a mere discussion thread but clearly a form of ongoing dialogue representing
a coherent whole, and it was reasonable for the domestic authorities to apprehend the comments as
such.
It could also be said that the deletion of S.B.’s message – the only one to mention Leila T. directly –
had not released the applicant from liability in respect of her complaint. The Court emphasised that
the applicant’s liability, both criminal and civil, had not been engaged on account of any specific
comment taken in isolation.
The Court further observed that the domestic courts had given reasoned decisions and had
proceeded with a reasonable assessment of the facts, specifically examining the question whether
the applicant had been aware of the unlawful comments posted on his Facebook “wall”. The Court
found it appropriate to proceed with a proportionality analysis based on the degree of liability that
might be attributed to the person concerned, whether a private individual, a local councillor and a
candidate standing for election to local office, or a nationally prominent politician.
The possibility of holding the authors liable instead of the applicant
The Grand Chamber referred back to its findings on the lawfulness of the interference, from which it
could clearly be seen that the acts of which the applicant stood accused were both distinct from
those committed by the authors of the unlawful comments and governed by a different regime of
liability. It endorsed the Chamber’s finding that the applicant had not therefore been prosecuted
instead of S.B. and L.R., who themselves had also been convicted.
Consequences of the domestic proceedings for the applicant
While a criminal conviction could have a chilling effect for users of social media or discussion forums,
it was not to be ruled out in the case of hate speech or incitement to violence. In the present case
the applicant, who could potentially have received a harsher sentence, was only sentenced to a fine
of EUR 4,000 at first instance, an amount reduced to EUR 3,000 by the Court of Appeal, together
with the payment of EUR 1,000 to Leila T. in respect of her costs. Moreover, there had been no other
consequences for the applicant, who had not argued that he had subsequently been forced to
change his conduct, or that his conviction had had a chilling effect on his freedom of expression or
any negative repercussion on his subsequent political career.
Conclusion
On the basis of an assessment of the specific circumstances of the present case and having regard to
the margin of appreciation afforded to the respondent State, the Court found that the decisions of
the domestic courts had been based on relevant and sufficient reasons, both as to the liability
attributed to the applicant, in his capacity as a politician, for the unlawful comments posted in the
run-up to an election on his Facebook “wall” by third parties, who themselves had been identified
and prosecuted as accomplices, and as to his criminal conviction. The interference in question could
therefore be considered to have been “necessary in a democratic society”. Accordingly, there had
been no violation of Article 10 of the Convention.
Separate opinions
Judge Kūris expressed a concurring opinion. Judge Ravarani and Judge Bošnjak each expressed a
dissenting opinion. Judges Wojtyczek and Zünd expressed a joint dissenting opinion. These opinions
are annexed to the judgment.
The applicant’s conviction for not promptly deleting illegal comments on Facebook. No violation of freedom of expression was found
GRAND CHAMBER JUDGMENT
Sanchez v. France 16.05.2023 (app. no. 45581/15)
see here
SUMMARY
The application concerned the criminal conviction of the applicant, at the time a local councillor who
was standing for election to Parliament, for the offence of incitement to hatred or violence against a
group or an individual on grounds of religion, following his failure to take prompt action to delete
comments posted by third parties on the “wall” of his Facebook account. The applicant alleged that
his conviction had breached his right to freedom of expression under Article 10 of the Convention.
The criminal case had turned solely on the applicant’s lack of vigilance and failure to react in respect
of comments posted by others. It had thus raised the question of the shared liability of the various
actors involved in social media. The French criminal courts, applying a “cascading liability” regime
introduced by the Law of 29 July 1982, had convicted the authors for the unlawful messages
together with the applicant as the Facebook account holder, being characterised as “producer”.
First, the Court considered that the domestic legal framework, providing for a sharing of liability
between all those involved, had been sufficiently precise, for the purposes of Article 10 of the
Convention, to enable the applicant to regulate his conduct in the circumstances.
Secondly, the Court agreed with the domestic courts that the comments at issue, which had been
posted in the specific context of a forthcoming election, could be classified as hate speech, when
interpreted and analysed in terms of their immediate impact, and were therefore unlawful. Thirdly,
it took the view that the interference with the applicant’s freedom of expression pursued not only
the legitimate aim of protecting the reputation or rights of others, but also that of preventing
disorder or crime.
As the applicant had decided to make his Facebook “wall” publicly accessible and had “authorised
his friends to post comments”, in the Court’s view he could not have been unaware, in view of the
local tensions and ongoing election campaign around that time, that his choice was clearly not
without certain potentially serious consequences.
The Court concluded, taking account of the State’s margin of appreciation, that the decisions of the
domestic courts had been based on relevant and sufficient grounds, with regard both to the
applicant’s liability, as a politician, for the unlawful comments posted by the third parties, who had
themselves been identified and prosecuted as accomplices, and to the applicant’s criminal
conviction. The interference in question could thus be regarded as “necessary in a democratic
society”. There had therefore 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 – 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) party 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 posted a message about F.P. on his publicly
accessible Facebook “wall”, which he ran 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 …”.
Third parties, S.B. and L.R., added a number of comments under the applicant’s post.
On 25 October 2011 Leila T., the partner of F.P., became aware of the comments. Feeling directly
and personally insulted by what she viewed as “racist” remarks, she went straight away to the
hairdressing salon managed by S.B., whom she knew personally. S.B., who had been unaware that
the applicant’s Facebook “wall” was public, deleted his comment immediately.
On 26 October 2011 Leila 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 “wall”. On 27 October 2011 Mr Sanchez posted a message on his “wall” inviting users to
“be careful with 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 posting of the comments in question on the applicant’s Facebook “wall”, to answer charges
of incitement to hatred or violence against a group or individual, in particular Leila T., on account of
their origin or the fact of belonging or not belonging to 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). Mr Sanchez and S.B. were also ordered,
jointly, to pay the sum of EUR 1,000 to Leila T., as civil party, in compensation for her non-pecuniary
damage. The court concluded that, having set up a service for communication to the public 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 to
stop their dissemination and was therefore “guilty as principal offender”. It found S.B. and L.R. guilty
as accomplices.
Mr Sanchez lodged an appeal.
The Nîmes Court of Appeal upheld Mr Sanchez’s conviction, reducing the fine to EUR 3,000. It also
ordered him to pay Leila 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 concerned, namely persons 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 offending 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 politician required him to be all the more vigilant.
The applicant appealed on points of law to the Court of Cassation, which in a judgment of 17 March
2015 dismissed his appeal.
THE DECISION OF THE COURT…
Article 10
The Court began by noting that the applicant’s criminal conviction had been handed down on the
basis of section 23, first paragraph, section 24, eighth paragraph, of the Law of 29 July 1881, and
section 93-3 of Law no. 82-652 of 29 July 1982. As it had previously found, a criminal conviction
under sections 23 and 24 of the Law of 29 July 1881 met the requirement of foreseeability of the law
for the purposes of Article 10 of the Convention. In addition, the applicant had not substantiated his
allegation that the domestic courts’ interpretation had been arbitrary or manifestly unreasonable.
Section 93-3 of Law no. 82-652 of 29 July 1982 was formulated with sufficient precision, for the
purposes of Article 10 of the Convention, to enable the applicant to regulate his conduct in the
circumstances of the present case.
The Court took the view that there was no doubt, having regard to the reasoning given by the
domestic courts, that the interference pursued not only the legitimate aim of protecting the
reputation or the rights of others but also that of preventing disorder and crime.
After a lengthy overview of its case-law concerning freedom of expression, political discourse, hate
speech, the Internet and social media, the Court addressed the following points:
Context and nature of comments at issue
Noting that there was no universal definition of “hate speech”, the Court found it necessary to
examine the content of the comments at issue, which had been posted by two different authors, S.B.
and L.R., particularly in the light of the grounds given by the domestic courts.
The Criminal Court had noted at the outset that the remarks had “perfectly” defined a specific group
of persons, namely Muslims, and that the group was associated with objectively insulting and hurtful
language, accentuating the intended assimilation between a group – taken as a whole on account of
its religion – and criminality.
The Court acknowledged that L.R.’s comments had been made in a very specific context, in the runup to an election and on the Facebook “wall” of a candidate whose ideas he supported and for whom he was actually working as campaign assistant. The author had sought to complain about the local situation in language from which the applicant did not distance himself. The Court accepted
that the comments reflected a wish to complain of certain local difficulties, or even a degree of
social distress that might call for a political response, besides the fact that they corresponded to the
specific type of communication found on certain online portals. It reiterated nonetheless that, in an
election context, the impact of racist and xenophobic discourse became greater and more harmful,
particularly where the political and social climate was troubled and clear tensions existed within the
population. When interpreted and assessed in their immediate context, the comments at issue
genuinely amounted to hate speech. The Court thus found that the comments posted by S.B. and
L.R. on the applicant’s Facebook “wall” were clearly unlawful.
The political context and the applicant’s specific liability in respect of comments posted by third
parties
Referring to its Grand Chamber judgment in Delfi AS v. Estonia, the Court took the view that the
applicant’s Facebook “wall” was not comparable to a “large professionally managed Internet news
portal run on a commercial basis”. It thus approached the question in the light of the “duties and
responsibilities”, within the meaning of Article 10 § 2 of the Convention, to be assumed by
politicians when they decided to use social media for political purposes, particularly to meet
electoral goals, by opening publicly accessible fora on the Internet where the reactions and
comments of users could be posted. The applicant was not merely a private individual and he
himself had pointed out that he was using his Facebook account in his capacity as a local councillor,
for political purposes and in the run-up to an election.
The Court emphasised that the applicant’s initial post had not been at issue but the case had turned
solely on his lack of vigilance and failure to react in respect of comments posted by S.B. and L.R. It
noted that the attribution of liability for acts of third parties might vary depending on the
moderation or vetting techniques applied by Internet users who were characterised by law as
“producers” and who merely used social networks or accounts for non-commercial purposes. There
was no consensus on this issue among the member States. The Court was of the view, however, that
to engage a person’s liability as “producer”, within the meaning of section 93-3 of Law no. 82-652 of
29 July 1982, did not raise any difficulty as a matter of principle, provided that safeguards existed in
the apportionment of such liability, which was to be applied in a context of shared liability between
various actors, as was also the case for Internet hosts.
In the Court’s opinion, while professional entities which created social networks and made them
available to other users necessarily had certain obligations, there had to be a sharing of liability
between all the actors involved, allowing if necessary for the degree of liability and the manner of its
attribution to be graduated according to the objective situation of each one. In addition, the
domestic courts in the present case had referred to the applicant’s status as a politician and had inferred from this that he had been bound by a special obligation. Owing to a politician’s particular status and position in society, he or she was more likely to influence voters, or even to incite them, directly or indirectly, to adopt positions and conduct that might prove unlawful, thus explaining why
he or she could be expected to be “all the more vigilant”, to use the words of the Nîmes Court of
Appeal. The Court emphasised that this finding was not to be understood as entailing an inversion of
the principles established in its case-law hitherto and that the specific duties required of the
applicant on account of his status as politician were indissociable from the principles relating to the
rights which came with such status. The Nîmes Court of Appeal could usefully have referred to those
principles in order to strengthen its reasoning.
In the circumstances of the present case, while referring to its earlier finding that the content of the
comments published on the applicant’s “wall” were clearly unlawful, the Court found that the
Criminal Court and Nîmes Court of Appeal were best placed to assess the facts in the light of the
difficult local context and their acknowledged political dimension. The Court therefore fully
endorsed the Chamber’s view that the language used in the comments at issue had clearly incited
hatred and violence against a person on account of his or her religion and this could not be disguised
or minimised by the election context or by a wish to discuss local difficulties.
Steps taken by the applicant
The Court, observing that a minimum degree of subsequent moderation or automatic filtering would
be desirable in order to identify clearly unlawful comments, noted that the applicant had been free
to decide whether or not to make access to the “wall” of his Facebook account public. The domestic
courts had taken into account the fact that he had chosen to make it publicly accessible and had
“therefore authorised his friends to post comments on it”. The Court took the view that he could not
be reproached for this decision in itself. Nevertheless, in view of the local and election-related
tensions at the time, that option was clearly not without certain potentially serious consequences, as
the applicant must have been aware in the circumstances.
The Court further pointed out that the use of Facebook was subject to the acceptance of certain
terms and conditions laid down by the social network, in particular those in the “Statement of rights
and responsibilities” accepted by each user. The applicant had nevertheless seen fit to draw the
attention of his “friends” to the need for them to “be careful with the content of [their] comments”,
thus apparently showing that he had at least been aware of the issues raised by certain posts. He
had not, however, deleted the comments at issue here, nor had he taken the trouble to check, or to
have checked, the content of comments that were then publicly accessible. Turning more specifically
to S.B.’s comment, which had been promptly withdrawn by its author less than 24 hours after being
posted, the Grand Chamber accepted that the applicant could not have been required to have acted
even more promptly, while noting that it had been only one of the elements to be taken into
consideration in the case. Mr Sanchez had in fact been prosecuted, and ultimately convicted, not on
account of the remarks made by S.B. or L.R., but for failing to proceed with the prompt deletion of all
the unlawful comments posted by those authors on his Facebook “wall”. Those comments had been
responding to and complementing each other following the applicant’s initial post, so for the Court
they did not constitute a mere discussion thread but clearly a form of ongoing dialogue representing
a coherent whole, and it was reasonable for the domestic authorities to apprehend the comments as
such.
It could also be said that the deletion of S.B.’s message – the only one to mention Leila T. directly –
had not released the applicant from liability in respect of her complaint. The Court emphasised that
the applicant’s liability, both criminal and civil, had not been engaged on account of any specific
comment taken in isolation.
The Court further observed that the domestic courts had given reasoned decisions and had
proceeded with a reasonable assessment of the facts, specifically examining the question whether
the applicant had been aware of the unlawful comments posted on his Facebook “wall”. The Court
found it appropriate to proceed with a proportionality analysis based on the degree of liability that
might be attributed to the person concerned, whether a private individual, a local councillor and a
candidate standing for election to local office, or a nationally prominent politician.
The possibility of holding the authors liable instead of the applicant
The Grand Chamber referred back to its findings on the lawfulness of the interference, from which it
could clearly be seen that the acts of which the applicant stood accused were both distinct from
those committed by the authors of the unlawful comments and governed by a different regime of
liability. It endorsed the Chamber’s finding that the applicant had not therefore been prosecuted
instead of S.B. and L.R., who themselves had also been convicted.
Consequences of the domestic proceedings for the applicant
While a criminal conviction could have a chilling effect for users of social media or discussion forums,
it was not to be ruled out in the case of hate speech or incitement to violence. In the present case
the applicant, who could potentially have received a harsher sentence, was only sentenced to a fine
of EUR 4,000 at first instance, an amount reduced to EUR 3,000 by the Court of Appeal, together
with the payment of EUR 1,000 to Leila T. in respect of her costs. Moreover, there had been no other
consequences for the applicant, who had not argued that he had subsequently been forced to
change his conduct, or that his conviction had had a chilling effect on his freedom of expression or
any negative repercussion on his subsequent political career.
Conclusion
On the basis of an assessment of the specific circumstances of the present case and having regard to
the margin of appreciation afforded to the respondent State, the Court found that the decisions of
the domestic courts had been based on relevant and sufficient reasons, both as to the liability
attributed to the applicant, in his capacity as a politician, for the unlawful comments posted in the
run-up to an election on his Facebook “wall” by third parties, who themselves had been identified
and prosecuted as accomplices, and as to his criminal conviction. The interference in question could
therefore be considered to have been “necessary in a democratic society”. Accordingly, there had
been no violation of Article 10 of the Convention.
Separate opinions
Judge Kūris expressed a concurring opinion. Judge Ravarani and Judge Bošnjak each expressed a
dissenting opinion. Judges Wojtyczek and Zünd expressed a joint dissenting opinion. These opinions
are annexed to the judgment.