Liability for Facebook-comments: Why the ECtHR underprotected Freedom of Speech

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In a remarkable case against France, the European Court on Human Rights had to decide on a new question regarding the freedom of speech involving the role of “intermediaries” on the Internet. To what extent can the holder of a Facebook-account be held criminally liable for the comments posted by third parties on his timeline? In this post, prof. dr. Koen Lemmens ponders this question and the answer given by the ECtHR in Sanchez v. France.

The circumstances of this case are rather trivial. A local politician (Julien Sanchez), member of the far-right party Rassemblement National, posted a rather cynical comment concerning the new website of a political adversary on his own Facebook-wall. As a result, third parties reacted to this post, through hateful and racist comments, mainly targeting Muslims living in Nîmes. A lawsuit was filed before the Court of first Instance, leading amongst others to the conviction of Sanchez and these commenters on account of incitement to hatred.

The Court of Appeal upheld the criminal court’s findings, and followed an analogous reasoning. In the first place, it confirmed that the poster’s comments qualified as hate speech. Yet, the interesting element lies in the link drawn with Sanchez’ responsibility. The Court of Appeal argues that Sanchez’ awareness of the content

Koen LEMMENS, "Liability for Facebook-comments: Why the ECtHR underprotected Freedom of Speech", Leuven Blog for Public Law, 27 October 2021, (geraadpleegd op 19 May 2022)
of the comments before their publication has not been established, but it nevertheless sees good reasons why he should be held responsible. First and foremost, he deliberately offered a forum and thereby invited his friends to post comments. The Court then argues that “by doing this” he became responsible for the content of the messages. Next, the Court held that as a politician, Sanchez was subject to a stricter duty of vigilance and care. Furthermore, the Court insisted that Sanchez had declared that he checked his account on a daily basis, so he could have seen the comments. Moreover, he was later informed by one the authors but neglected to remove the comments. The comments were still visible on his wall on the day that he was interrogated by the police. The Court observed, finally, that Sanchez defended himself by saying that he believed the comments were covered by freedom of speech.

An appeal to the Court of Cassation was dismissed and Sanchez went to Strasbourg. The European Court of human rights did not see a violation of Article 10 of the European Convention on Human Rights (‘ECHR’).

The question now is how the Sanchez case is to be assessed against the backdrop of the Court’s case-law on freedom of expression in light of the very concept of protecting freedom of expression.

Applying Delfi and going beyond?

It clearly appears from the judgement that the Court heavily relied on its Delfi case, the backbone of its Internet responsibility case-law. Yet, the question is whether Sanchez should not be contrasted with Delfi, and subsequently distinguished from it.

Delfi AS v. Estonia concerned the professionally managed website of a national newspaper, on which Internet users could react to articles. The reactions under scrutiny in the case were anonymous and contained hate speech. The website was blamed and (moderately) sanctioned for not responding swiftly when it was informed of the illegal content of the messages. The Grand Chamber concluded that the Estonian domestic courts had not violated freedom of expression when they had sanctioned the news portal by imposing it to pay a very modest sum of damages, which the Grand Chamber and the Chamber found by no means disproportionate.

However, as the dissenting judge Mourou-Vikström in Sanchez observes, the Grand Chamber in Delfi made a clear distinction between, on the one hand, commercially exploited news portals and, on the other hand, Internet discussion forums or social media platforms where the platform provider does not offer content, and users themselves are posting content, be it through short comments or by blogs or websites they run as a hobby. I agree with her that Sanchez’ Facebook page could belong to the second category. There is a fundamental difference between commercial companies, running websites where people can react and interact with each other, and individual persons, albeit it with a public function, who have a Facebook-account or use another social medium platform allowing others to interact. The latter do not have the same possibilities to monitor content as the former.

The second point on which the Delfi case and the Sanchez case unmistakably differ, relates to the identity of the commenters. A key element in the Delfi case was that the commenters were anonymous and that it was hard, if not impossible, to find out who was behind the hateful comments. In Sanchez, on the contrary, no such problem arose: the identity of the two commentators was well-known, and one of them even cancelled his comments after a visit of the person that filed a complaint on account of incitement to hatred. This does raise questions with regard to third party responsibility and the need to prosecute an editor, producer or intermediary, when the author is known.

Thirdly, there is another important difference between Delfi and Sanchez. According to the Court in Delfi, the commenters “lost control of their comments as soon as they had entered them and they could not change or delete them.” In Sanchez, the facts show that the commenters could withdraw their comments; one of the two persons did this. In terms of the agency of the commenters, this occurs to me as a fundamental difference when assessing the respective liability of the persons concerned.

Establishing third party responsibility?

The Strasbourg Court analysed the Sanchez case through the lens of a derivative responsibility. The applicant was indeed sentenced by the domestic courts for a lack of control, not for what he had said or published himself. This idea of accepting liability for the words of others is not self-evident. Thus, in Jersild, the Court observed that a journalist could not be prosecuted for what interviewees declared. The Court is more hesitant regarding editors. In cases such as Sürek (n°1), the Court recognized that editors, although they did not necessarily intervene with the content of what writers and journalists expressed, are part of the exercise of freedom of expression and should therefore accept the duties and responsibilities that go along with it. Nevertheless, a dissenting judge highlighted that “the applicant was only the major shareholder in the review and not the author of the impugned letters nor even the editor of the review responsible for selecting the material in question. He was thus lower down in the chain of responsibility for the publication of readers’ letters” indicating that shifting responsibility to editors is not that self-evident.

Chilling Effect

In the Delfi-judgement, judges Sajo’ and Tsotsoria, referring to the Belgian Constitution, wrote an extensive and critical dissenting opinion on the risks of what they called “a liability system that imposes a requirement of constructive knowledge on active Internet intermediaries” which would be, in their eyes, “an invitation to self-censorship at its worst”.

At the time of Delfi, I found this comment rather overstated, for under Belgian tiered liability, in case of anonymity, liability shifts to the next in line. In the Sanchez case, to the contrary, the commenters were not anonymous. They could, therefore, be prosecuted, without there necessarily being a need to involve intermediaries such as Sanchez. Further, the Court here accepts without much ado that the comments can/should be qualified as hate speech and were, as a result, clearly illegal. The illegal nature of the comments also played an important role in the Delfi-case.

However, one may question whether, especially for those serving as intermediaries in such cases, it will always be so easy to distinguish lawful from unlawful content. Where to draw the line between opinions that hurt, shock or offend as opposed to illegal content (libel and slander, incitement to hatred, violence, discrimination, …) is indeed a very complicated issue, as domestic case-law and the Court’s own decisions and judgements illustrate. In such circumstances, one may wonder how reasonable it is to impose on intermediaries a monitoring function (and also whether it is desirable that they are the ones deciding on the limits of free speech). This is exactly the point that was raised before the Nîmes Court of Appeal: the applicant said that he believed the content of the comments to be legal. That is exactly why the danger of a chilling effect is real. Indeed, big and professional players – the Delfi scenario again! – will have the means to invest in content monitoring by people who are duly informed and sufficiently skilled (which already in itself could be problematic). Individual holders of Facebook-accounts may not have these possibilities. As a consequence, they may decide not to run any risk and in case of the slightest doubt withdraw comments posted on their wall. That is exactly the kind of attitude that cascaded liability (as for example set out in the Belgian Constitution) aims to avoid.

The Strasbourg Court could have considered this more attentively.

Koen Lemmens is professor of European and International Human Rights Law, Constitutional Law and Media Law at the Leuven Centre for Public Law.

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