Sanchez v. France: protection from hate speech or one more step by the ECtHR toward curbing free expression on the Internet?

The article provides commentary on the recent ECtHR judgement Sanchez v. France, which is the third one, after Delfi AS v. Estonia and МТЕ и Index.hu Zrt v. Hungary, where the liability of an Internet site owner for a third party’s comment was the main issue. The ECtHR did not find a violation of Article 10 in the case of French politician Julien Sanchez, who had been convicted for incitement to hatred and violence against the Muslim community in France for failure to promptly delete comments posted by two individuals on the wall of his publicly accessible Facebook account. The judgement was immediately criticized by media lawyers and journalists, who regarded it as one more step toward curbing free expression and an attempt to restrict the use of social media as a platform for exchanging views on matters of public interest. The article discusses the Sanchez case in the context of previous ECtHR practice concerning freedom of expression and hate speech; analyzes differences in the Court’s approaches to defamation cases and hate speech cases in the light of the admissibility of content-based restrictions; draws attention to the blurry line between offending, shocking or disturbing statements, one the one side, and humiliating statements based on religious or ethnic identity, on the other side; and argues that these factors make the search for a balance between free expression and protection from hate speech rather difficult. It concludes that the ECtHR left space for interpretation of its Sanchez judgement, and in the future the Court will have to deal with the questions whether the duty to read all the comments to posts and delete those in conflict with the law may be imposed not only on politicians and commercial media providers, but on all users as well; whether this duty should depend on the number of followers and/or accessibility to the general public rather than solely for approved “friends”; and, finally, what time period should be understood to be “prompt” for deleting the content containing incitement to hatred. There is a risk that the disputed judgement in Sanchez will cause “a chilling effect” causing popular account owners to close their posts to comments or to delete their social media accounts entirely in order to avoid criminal charges, thus depriving the public of the opportunity to communicate with politicians and other public figures on a wide range of important issues. In addition, the authors of the posts, just to be on the safe side, will avoid any potentially troublesome content and will reduce the number of topics they write about. As a result, the most disputed questions will remain outside of public online discussions.

About the author: Anita Soboleva – Candidate of Sciences (Ph.D.) in Linguistics, LL.M., Associate Professor, Faculty of Law, Higher School of Economics, Moscow, Russia.

Citation: Soboleva A. (2021) Delo Sanchez v. France: zashchita ot razzhiganiya vrazhdy ili ocherednoy shag ESPCh na puti k ogranicheniyam svobody slova v Internete? [Sanchez v. France: protection from hate speech or one more step by the ECtHR toward curbing free expression on the Internet?]. Mezhdunarodnoe pravosudie, vol. 11, no. 4, pp. 3–18. (In Russian).

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