Holding politicians accountable: ECtHR’s landmark ruling on hate speech
Author: Margarita S. Ilieva
Co-author: Annabelle Betz
The European Court of Human Rights (ECtHR) backs the French judiciary enforcing criminal law against a local councillor who tolerated Islamophobic posts on his electoral Facebook page.
Case: Sanchez v. France
Sanchez v. France[1], a key ECtHR case for 2023, is the Court’s first judgment regarding criminal liability imposed on an elected politician for failing to remove third-party hateful posts on his public Facebook page. Julien Sanchez, a local councillor, was convicted in France for incitement to religious hatred for not moderating hateful comments targeting Muslims on his publicly accessible Facebook page with 1800+ followers, used for his election campaign. The French courts found that by enabling comments under his posts, which he knew would attract political controversy, Sanchez had the duty to monitor and moderate these under his post, which he failed to fulfil. The comments targeting the Muslim community were deemed likely to fuel animosity towards that community amid local tensions. While Sanchez was not convicted for the comments, not having authored them, he was convicted for not taking action to remove them.
Click on the icon to read about the different steps of the case.
Hateful comments targeting Muslims
Some comments targeted Sanchez’ political opponent and the latter’s Muslim partner, who subsequently lodged a criminal complaint. Sanchez and the comment authors were convicted and fined. Following a EUR 3000 fine imposed by the national courts in France[2], Sanchez lodged an application with the European Court of Human Rights (ECtHR). After hearing the case, the Grand Chamber of the Court determined the fine to be proportionate. The comments, targeting Muslims as a group, were considered “objectively insulting and hurtful” making an “intended assimilation between a religious group as a whole and criminality”. (§172-3, 176 of the judgment) The comments incited religious hatred, amounting to hate speech, and were “clearly unlawful”. (§176-7,189)
In Sanchez, the ECtHR considered the comments’ content and context, Sanchez’ response to them, the authors’ liability and the legal proceedings’ consequences for Sanchez. (§167) His political career was unaffected – he was later elected mayor and remained in his party’s leadership. Considering the consequences, his penalty was proportionate, freedom of expression was not breached. (§209-210) The number of 15 comments was key for the Court’s assessment of whether Sanchez could have been reasonably expected to review and delete them within 24 hours. (§195) Sanchez was convicted for not deleting those comments as “a coherent whole”. The Court recognised that online hate speech can be a continuum of comments, unaffected by the removal of specific comments: even if a comment is deleted, where the “whole” remains, an account holder can be liable for failed moderation. (§196-7)
Liability for third-party posts: host networks and politicians
Addressing the broader landscape, the Court observed the lack of a consensus among member states regarding the liability of social network users for third-party posts. (§182) Safeguards are required when attributing such liability: it should be shared between the actors, including host networks. (§183, 185) Account holders also have duties to identify clearly unlawful comments as quickly as possible and delete them, without notification by an injured party. (§185, 190)
Supporting member states and hate speech targets: the role of the Court
In the context of Sanchez, the Court had the role of supporting a State in its efforts to address hate speech, rather than to pass judgment on a State’s failure to protect hate speech victims. The French judges had already identified the hate speech in this case. The Court validated their decisions, reiterating the “wide margin of appreciation” granted to states when regulating (online) hate speech. It affirmed its supervisory function, which aims not to replace state decisions but to oversee their compliance with the Convention. (§140, 198)
In previous discrimination cases brought by hate speech targets whom their States failed,[3] the Court’s consistency has been less evident when compared to cases similar to Sanchez that revolve around “freedom of expression” and have been initiated by hate speakers[4].Hate speech victims have won few cases against their States, with none involving cases of “tacit” content or condoning. Within the context of cases brought by hate speech victims, the Court has yet to acknowledge the necessity of sanctioning “subtle” or “unintentional” hate speech. There is no judgment in a hate speech victim’s case about condoning (as opposed to authoring) hate speech. Regarding hate speech, the Court seems to follow the lead of States, rather than taking a pioneering role. While it is clearly important for the Court to support domestic courts in addressing hate speech, it is imperative that hate speech targets receive commensurate assistance from the Court when their national legal systems falter.
Final reflections
In this case, the Court extended the principle of holding Internet portals liable for hateful user comments[5] to individual politicians using social media for political purposes.[6] (§140 of the judgment) Politicians, in particular, are expected to exercise more caution and responsibility due to their potential influence on voters and society. The case of Sanchez v. France therefore sets a new standard for politicians’ responsibility in moderating hateful content on their social media platforms, emphasising the importance of protecting communities targeted by hate speech. This decision could potentially impact a range of entities with a strong social media presence.
The Facing Facts hate speech report – Current activities & gaps in hate speech responses – highlights the role of political parties and political leadership and their responsibilities in publicly condemning hate speech instances. This responsibility is detailed in the Council of Europe PACE’s Resolution 2275 (2019). Specifically, during election campaigns, minoritised communities risk being instrumentalised for political gains, which requires greater efforts to protect them.
This ruling not only manifests the responsibility of politicians in moderating hate speech, it also effectively recognises the idea that different stakeholders share responsibility in addressing hate speech. This strengthens the idea of a hate speech response system, where key actors are numerous and diverse. Ultimately, this decision outlines the role that the Court plays within this system, for instance by strengthening victims’ rights and setting standards and legal consequences for stakeholders that fail to remove online hate speech. The same report highlights the importance of strengthening the effectiveness of the relationships among the actors in a “systems” approach to tackle hate speech – backing ECRI’s GPR 15[7].
An interesting question is whether and how Sanchez v. France may impact the Digital Services Act, which further institutionalises the idea of a hate speech response system and reinforces liability for moderating hate speech content:
Will this ruling lead to an extension of such liability from host networks to politicians who do not moderate hateful content on their platforms?
[1] Judgment of 15 May 2023.
[2] Additionally, Sanchez was ordered to pay the complainant EUR 1000 in costs. The comments’ authors were fined EUR 4000 each.
[3] For example, Behar and Gutman v. Bulgaria and Budinova and Chaprazov v. Bulgaria.
[4] See for a detailed analysis of contradictions, Ilieva, M. S., Behar and Gutman and Budinova and Chaprazov v. Bulgaria: The Rights of Others in Cases of Othering – Anti-Victim Bias in ECHR Hate Speech Law? (Strasbourg Observers, 2021)
[5] The Court had previously held that States may impose liability on Internet portals for hateful user comments, if they fail to promptly (within twenty-four hours of posting) remove clearly unlawful comments, without being alerted. In Sanchez, the Court extended this principle, applying it to an individual using his social media as a politician. (§140 of the judgement)
[6] The Court reiterated that freedom of political debate is not absolute – restrictions are allowed. (§148) It may be necessary to penalise or prevent hate speech. (§149) Politicians have duties not to make public comments capable of fostering intolerance against communities. Such comments are not protected by freedom of expression. (§150)Hate speech is not always patent: it can be implicit and guarded, or hypothetical. (§157) What matters is whether the content is capable of causing harm. (§154) The Internet poses higher risks of harm: hate speech can be disseminated worldwide in seconds and remain available (§161-2).
[7] ECRI’s GPR 15 arguably supports this ‘systems’ approach. It identifies a wide range of responsible actors and recommends cooperation between public authorities, civil society, equality bodies and national human rights institutions for hate speech monitoring and data gathering, and highlights the importance of efficient coordination of activities between the police and prosecution authorities when investigating and prosecuting hate speech cases. In relation to prevention work, GPR15 underlines that more significant impact can be achieved from the efforts undertaken in cooperation and coordination between national stakeholders, including through developing and adopting national strategies and action plans, compared to the efforts by individual actors.
Facing Facts is co-funded by the Citizens, Equality, Rights and Values Programme
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