Digital Law Up(to)date: be aware of your Facebook wall… you could be liable for comments posted by others

EU Law

In this blog, we briefly present a recent judgment of the European Court of Human Rights on the liability for content posted by a third party on a Facebook wall.

In the Sanchez v. France judgment of 2 September 2021 (available only in French), the European Court of Human Rights (ECtHR) upheld the criminal conviction of the manager of a public Facebook wall (the applicant) for failing to react to racist comments posted by a third party in an electoral context.

According to the ECtHR, the conviction is an interference provided for by law and pursuing a legitimate aim (the protection of the rights of others). The Court then analyses proportionality by using the criteria developed in its case of Delfi AS v. Estonia (also used in a case of Jezior v. Poland). Three points of attention:

  • First, recalling that Article 10 protects information or ideas that offend, shock or disturb, the ECtHR states that this protection is not absolute. In casu, the posts were clearly unlawful.
  • Secondly, the electoral context. Although the ECtHR does not usually tolerate restrictions on freedom of expression in case of political speech, it states that usage of this freedom in this context must respect another democratic foundation: the equal dignity of all human beings. As the electoral speech is often stereotyped and without nuance, the ECtHR stresses that the impact of racist speech in such context can be more damaging.
  • Finally, the measures taken by the applicant, i.e. the removal of the public nature of the Facebook wall and the publication of a message asking third parties to monitor the content of their post, were not sufficient.

The ECtHR concludes that the criminal conviction of the applicant did not violate his freedom of expression.

This article was co-authored by Edouard Cruysmans in his capacity of Professional Support Lawyer at Stibbe.