Responsibility for comments on a public Facebook profile

In the case of Sanchez v. France (application no. 45581/15, 15.05.2023) the European Court of Human Rights held, by a majority, that there had been no violation of Article 10 (freedom of expression) of the European Convention on Human Rights. 

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.

Reference from the official website of the European Court of Human Rights