Today, the Grand Chamber of the European Court of Human Rights (the ECtHR) found that prosecuting a local councillor for failure to delete comments posted by third parties on his Facebook wall did not violate his right to freedom of expression.
ARTICLE 19 is gravely concerned about the impact of this decision on freedom of expression online. The judgement de facto approves imposing a number of content moderation obligations on prominent individuals in relation to their social media accounts. Allowing criminal liability for third-party content for some social media users might prevent them from having a comment section on their social media accounts at all which will in turn prevent robust discussions and democratic discourse.
The case of Sanchez vs. France concerned the criminal conviction of Julien Sanchez, a local councillor standing for election to Parliament, for incitement to hatred or violence against a group or an individual on grounds of religion. In October 2014, he wrote on his publicly accessible Facebook account a brief post about the Nîmes Union for a Popular Movement MEP. Fifteen people commented on this post, two of them accusing the said MEP of allowing the town to be “run by Muslims” and allowing drug dealing and prostitution by them. The MEP’s partner, Leila T. became aware of these posts the next day and lodged a criminal complaint against Sanchez, and the two commentators with the Nîmes public prosecutor. Although Sanchez later warned his followers to be careful with the content of their comments, he did not remove the impugned comments from his Facebook wall. Sanchez and the commentators were subsequently found guilty of incitement to hatred or violence against a group or individual. After he exhausted domestic remedies, Sanchez took the case to the ECtHR, arguing that the conviction violated his right to freedom of expression, under Article 10 of the European Convention on Human Rights.
Today, the Grand Chamber of the ECtHR ruled in favour of France and found that Sanchez’s rights had not been violated. The Court based its conclusions on the fact that, although Sanchez’s original post had not been at issue, he lacked “vigilance” and failed “to react in respect of comments posted by others.” By making his Facebook wall publicly accessible, he had “authorised his friends to post comments” and “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”. There had therefore been no violation of Article 10 of the Convention.
Barbora Bukovská, Senior Director for Law and Policy at ARTICLE 19 commented:
Allowing states to hold some individuals liable for comments of others is extremely dangerous for freedom of expression online. Comments sections under social media posts are an important part of online engagement.
In practice, this judgment means that certain prominent individuals on social media would have the same obligations as the platforms – who also should not be held liable for third-party content. This kind of liability can expose certain users to being targeted by others. For instance, social media accounts of human rights and women’s rights activists, or members of minority groups could be targeted with criminal complaints with the intention to make them liable for hateful comments on their social media they might not even see among hundreds or thousands of comments left by bots or coordinated groups of users.
This will be even more problematic for public persons who already have a significant following and gather thousands of comments under the posts on their pages. Liability for the comments of others might in fact empower politicians and public figures to block people from accessing and commenting on their public accounts simply based on their views. This would go against the increasing recognition that members of the public have a right to read and reply to these types of communications. This will hamper and lessen the space for democratic debate, already shrinking in the modern world.
ARTICLE 19 is concerned that making some users of social media liable for third-party content – namely comments – under their social media posts will have a significant chilling effect on the right to freedom of expression. Although the case focuses on a politician, it could also force other prominent users, including influencers or prominent journalists, to choose between two unpalatable options: either to take it upon themselves to police potentially hundreds of thousands of comments that others put on their accounts or simply adopt an account setting that prevents others from commenting on their posts altogether. We fear that most likely, these individuals would probably cease to enable comments on their social media accounts, given the legal risk they would run in allowing content to be posted in the first place.
Alternatively, prominent social media users might be forced to err on the side of caution and delete all the potentially infringing comments, most of which possibly protected speech. Users of social media, even those with a high number of followers or users in a position of authority do not have the legitimacy or capacity to determine whether content posted on their social media by third parties is ‘legal’ or not. They should not be required to determine the lawfulness of these posts.
In summary, today’s decision, enabling countries to hold some individuals liable for third-party content on their social media accounts, will have a detrimental impact on freedom of expression. We warn that this might lead to the blocking of potentially millions of user comments and prevent them from using social media for robust discussions and democratic discourse.
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