In its decision of 2 September 2021, the European Court of Human Rights validated the criminal conviction of a politician who failed to remove manifestly unlawful and hateful comments posted on the wall of his publicly accessible Facebook page.
The Court considered that this conviction did not violate the principle of freedom of expression, enshrined in article 10 of the European Convention on Human Rights (“ECHR”).
Facts
In October 2011, a French politician, who was then a candidate in the parliamentary elections in Nîmes, France, posted a message on the wall of his Facebook page, which was open to the public, targeting his political opponent. Visitors of the page reacted by adding comments on the wall of the politician’s page.
The opponent’s partner, who felt directly and personally insulted by these comments which she described as racist, filed a complaint against the politician and the authors of the comments.
The politician was convicted by the Nîmes Criminal Court on the grounds that, by not removing the disputed comments in the following weeks, he had not promptly put an end to their dissemination. He was thereby criminally sentenced for incitement to hatred or violence against a group of people or a person on the grounds of a particular religion.
The politician appealed to the Nîmes Court of Appeal, which confirmed the first judgment. The Court of Cassation then dismissed the appeal lodged by the politician.
The politician took his case to the European Court of Human Rights and argued that his criminal conviction for comments posted by third parties on the wall of his Facebook page was contrary to the principle of freedom of expression, enshrined in Article 10 ECHR.
Decision
In accordance with the second paragraph of Article 10 ECHR, interference with the exercise of the right to freedom of expression may be accepted if (i) it is prescribed by law, (ii) directed to an aim or aims which are legitimate, and (iii) necessary in a democratic society to achieve them.
After briefly stating that the interference was prescribed by law and that the legitimate aim was to protect the reputation or rights of others, the Court focused at length on this requirement of necessity in a democratic society.
In order to determine whether in this case the interference was necessary in a democratic society, the Court had to determine whether the decision of the French courts to hold the politician responsible was based on relevant and sufficient grounds. Accordingly, and in order to assess the proportionality of the impugned sanction, it examined (i) the context of the comments, (ii) the measures taken by the politician to withdraw the comments, and (iii) the possibility to hold the authors of the comments responsible rather than the applicant.
(a) The context of the comments
The Court noted that the comments posted on the wall of the politician's Facebook page were clearly unlawful in nature. It added that, despite the fundamental importance of defending the free play of political debate in a democratic society, that freedom of political discussion was not absolute. It is therefore essential in a democratic society to sanction, or even prevent, all forms of expression that propagate, encourage, promote or justify hatred based on intolerance.
Moreover, the Court emphasised the importance of the medium and context in which the incriminated remarks were disseminated. Internet and social media sites greatly contribute and facilitate the communication of information, but they also entail the risk of significant dissemination of unlawful statements. This risk is all the greater when the dissemination of information takes place in an electoral context. The Court therefore recalls the particular responsibility of politicians in the fight against hate speech.
Finally, the Court also noted that the politician was not criticised for using his right to freedom of expression, but for his lack of vigilance and reaction to certain comments posted on the wall of his Facebook page.
(b) The measures taken by the applicant
The Court noted that the national courts considered that, by making the wall of his Facebook page public and thus allowing a very large number of "friends" to post comments, the politician had an obligation to monitor the content of the comments published. He could not have been unaware that his account was likely to attract comments with a political content, which was in essence polemical, and therefore had an obligation to monitor them even more closely.
The Court also took into account that the comments were publicly available for several weeks after their publication, and that the politician therefore failed to remove them upon being notified.
The Court further stated that it is of the view that a shared responsibility exists between the holder of an account on a social network and the provider of the social network.
(c) The possibility to hold the authors responsible rather than the politician
According to the national courts, the politician was liable in his own right since he made the comments of the third parties available to the public and failed to remove them after becoming aware and despite their unlawful character. As the holder of his Facebook page, the politician had to respect specific obligations, in particular when he decided to make the page accessible to the public.
The Court agreed that, in view of the particular circumstances and the fact that the politician had decided to make his page publicly accessible rather than limiting access to it, the politician could be held responsible.
Finally, the Court also took into account that the fine imposed by the French jurisdictions on the politician was not disproportionate.
The Court therefore held, by six votes to one, that there had been no violation of Article 10 ECHR.
Dissenting opinion
In an extensive dissenting opinion, Judge Mourou-Vikström addressed this new issue of the criminal liability of a Facebook account holder for comments written by third parties on his wall.
In the Judge’s view, the conviction of a Facebook account holder is contrary to the requirements of Article 10 ECHR and thus infringes the freedom of expression of commentators and account holders. The Judge fears that establishing a criminal responsibility for a Facebook account holder risks placing an extremely heavy obligation of control on him and transforming the author into a censor of the comments written on his wall.
Please contact Karel Janssens at &DE BANDT for further information about this case and/or for general legal advice relating to online platforms.
