ECtHR Grand Chamber decision in Sanchez v France raises serious concerns over online speech

The Grand Chamber of the European Court of Human Rights has handed down its judgment in Sanchez v France. Media Defence intervened with the Electronic Frontier Foundation in the case.

The relevant events took place in 2011 and 2012. The applicant, a politician, was charged with the offence of incitement to hatred or violence following comments posted on the ‘wall’ of his Facebook account by third parties. At the time the comments were posted, the applicant was running for elected office. He was found to have failed to delete those comments promptly and was convicted of that offence. The third parties who posted the offending comments were convicted of the same criminal offence. The Grand Chamber agreed with the Chamber and found that the applicant’s criminal conviction did not amount to a violation of his right to freedom of expression.

The Grand Chamber’s judgment represents a troubling extension of liability to high profile individuals for third party comments on their social media accounts. In Delfi v Estonia – the first time the Court had to deal with online intermediary liability – it found no violation of the right to free expression where an online media outlet was found liable for defamation because of comments made by its readers. The Court explained that it made that finding because of the media outlet’s commercial nature, the fact it encouraged comments and could edit them, and because it was a ‘professional publisher’. In that case the Grand Chamber expressly ruled out imposing liability for third party comments on members of the public using social media platforms.

Its decision in Sanchez v France represents a departure from that clear demarcation. The Court has now decided that politicians – described by the Court as those who are “professional in politics” – can be held criminally liable for third party comments on their social media accounts. The Court explains that this is because politicians can “influence voters, or even to incite them, directly or indirectly, to adopt positions and conduct that may prove unlawful”. The position now is that a politician must be “all the more vigilant” to what is being said on the social media accounts it uses “owing to a politician’s particular status and position in society”. In the Court’s view, this new standard doesn’t affect or contradict the well-established rule that in the field of political speech there is ‘little scope’ for restrictions on freedom of expression.

In its analysis, the Court focuses on what it describes as the “decision” of the applicant to open his Facebook ‘wall’ to the public, thereby increasing the risk of what it describes as “excessive and immoderate” remarks being posted. This is described as a “a major factual element” in the case. The Court also relies on what it refers to as the “ongoing dialogue” between the original post by the applicant, which the Court finds at the outset “did not contain any offensive language and raises no issue on such grounds”, and the subsequent, impugned comments on the basis “the applicant’s initial post not only started a dialogue, as the Court has already noted, but also had repercussions which went beyond that post on account of the very nature of social networks on the Internet.” In fact, contrary to the Court’s finding, the comments were not “responding to … each other”.

The Court also highlights the failure of the applicant to “distance himself” from one of the offending comments, even though the evidence from the domestic proceedings was that he had not seen that comment until summoned to the gendarmerie and had offered to remove it if required by order of a court.

The upshot of this judgment is that individuals who are prominent on social media may find themselves liable for comments made by third parties posted on their online accounts. Those involved in political campaigning and, possibly, day to day political activity, will be required to moderate their social media accounts to avoid criminal sanction for comments made by other people. Based on the Court’s reasoning the same concerns might apply to other high-profile activists. This ties in with a key concern we raised in our intervention – that “imposing liability on social media users for third party content would be more likely to expose them to coordinated attack on forums or pages they administer in order to trigger their liability”. This judgment makes that prospect more likely. Users might decide instead to prevent any comments being posted on their social media accounts. Either way, the consequences for online political discourse are serious.

You can read the judgment of Sanchez v France in full.

You can read our intervention in full here.

For more information, contact Pádraig Hughes at padraig.hughes@mediadefence.org