Judgment 15.5.2023 [GC]
Freedom of expression
Elected politician fined in criminal proceedings for failing to delete, from his publicly accessible Facebook “wall” used for his election campaign, Islamophobic comments by third parties also convicted: no violation
Facts – The applicant was, at the time, a local councillor and candidate for election to Parliament. He was convicted of inciting hatred or violence against persons of the Muslim faith and fined, for failing to promptly delete comments on his publicly accessible Facebook “wall” used during his election campaign. The two authors of the comments in question were convicted as accomplices. The criminal proceedings stemmed from a complaint filed by the partner of one of the applicant’s political opponents. She felt insulted and subsequently had an altercation with one of the authors, who immediately deleted his message and informed the applicant. The applicant posted on his Facebook “wall” a message inviting commentators to “be careful with the content” of their comments but without moderating the comments already posted.
In a judgment of 2 September 2021 (see Legal summary), a Chamber of the Court found, by six votes to one, that there had been no violation of Article 10.
Law – Article 10:
(1) Whether there was a lawful interference – The applicant’s conviction constituted an interference with his freedom of expression. He had disputed the foreseeability of his conviction as “producer”, under section 93-3 of Law no. 82-652 on audiovisual communication, but the Court noted that the definition of producer was laid down in clear and unequivocal terms in the case-law of the Court of Cassation and Constitutional Council: i.e., a person who had taken the initiative of creating an electronic communication service for the exchange of opinions on pre-defined topics. In addition, prior to the applicant’s conviction, the Court of Cassation had already permitted liability to be attributed to the producer alone in cases of press offences where the author had nevertheless been clearly identified. It was true that section 93-3 did not address the question of the time at which the producer was supposed to have had knowledge of the unlawful remarks, leaving the relevant domestic courts to decide on a case-by-case basis. In addition, at the material time, the domestic law did not require any prior notification by the victim to the producer, while Internet hosts such as Facebook had to be notified. That being said, it was possible for the Contracting States to find Internet news portals liable without violating Article 10 if those portals failed to delete clearly unlawful comments of third parties immediately after they were posted, even in the absence of notification by the victim or by third parties (see Delfi AS v. Estonia [GC]). The Court saw no reason to depart from that finding in the applicant’s situation.
The question of the liability of an individual Facebook account holder, as in the present case, had not specifically been addressed by the domestic courts at the material time. However, that fact in itself was not at odds with the requirements of accessibility and foreseeability of the law. Lastly, the interpretation given by the domestic courts was among the possible and reasonably foreseeable interpretations.
(2) Legitimate aims – The interference pursued the legitimate aims of the protection of the reputation or the rights of others, and the prevention of disorder and crime.
(3) Whether the measure was necessary in a democratic society –
(a) The context of the comments –
(i) Nature of impugned comments– The comments in question unequivocally referred to Muslims, portraying them as a group in objectively insulting terms and as criminals. After lamenting the alleged transformation of “Nîmes into Algiers”, they referred for example to “dealers and prostitutes [who] reign[ed] supreme”, “stones thrown at cars belonging to ‘white people’” and “drug trafficking run by the muslims”.
Some of the comments could be seen in the very specific context of the election campaign and sought to draw attention to local issues that might call for a political response, but using language from which the applicant did not distance himself. The Court did not deny the need to take account of the specific nature of communication on certain online portals, where comments were commonly expressed in conversational language or indeed in a colloquial or vulgar register. Nevertheless, in the run-up to an election the impact of racist and xenophobic discourse became greater and more harmful. Particularly where the political and social climate was troubled at the local level and there were clear tensions within the population. When interpreted and assessed in their immediate context, bearing in mind that the comments were posted on a politician’s Facebook “wall” during an election campaign, they genuinely amounted to hate speech, in view of their content and general tone, together with the virulence and vulgarity of some of the language used. Their reach had extended beyond a strictly partisan readership.
(ii) The political context and the applicant’s specific liability in respect of comments posted by third parties – The applicant’s Facebook “wall” fell within the characterisation of “other fora on the Internet where third-party comments can be disseminated”, fora which had fallen outside the Grand Chamber’s remit in Delfi AS v. Estonia. The Court saw fit to address this question in the light of the “duties and responsibilities”, within the meaning of Article 10 § 2, which were to be attributed to politicians when they used social media for political purposes, especially during an election campaign, by opening publicly accessible fora on the Internet to receive reactions and comments.
The attribution of liability for acts committed by third parties might vary depending on the moderation or vetting techniques applied by Internet users who were characterised as “producers” and who merely used social networks or accounts for non-commercial purposes. There was no consensus on this issue among the member States. To engage a person’s liability as “producer” did not, however, raise any difficulty as a matter of principle, provided that safeguards existed in the apportionment of such liability, which was to be applied in a context of shared liability between various actors, as was the case in the example of Internet hosts. As the Internet had become one of the principal means by which individuals exercised their right to freedom of expression, interferences with the exercise of that right had to be examined particularly carefully, since they were likely to have a chilling effect, which carried a risk of self-censorship. Nevertheless, the identification of such a risk must not obscure the existence of other dangers for the exercise and enjoyment of fundamental rights and freedoms. For this reason the possibility for individuals complaining of defamatory or other types of unlawful speech to bring an action to establish liability must, in principle, be maintained, constituting an effective remedy for alleged violations.
At the relevant time, the holder of a Facebook account used for non-commercial purposes had not been fully able to control the administration of comments. In addition to the fact that there was no automatic filtering process available – although it had been possible to remove public access – the effective monitoring of all comments, especially in the case of a very popular account, would have required availability or recourse to significant, if not considerable, resources. Nevertheless, to exempt producers from all liability might facilitate or encourage abuse and misuse, including hate speech and calls to violence, but also manipulation, lies and misinformation. While professional entities which created social networks and make them available to other users necessarily had certain obligations, there should be a sharing of liability between all the actors involved, allowing if necessary for the degree of liability and the manner of its attribution to be graduated according to the objective situation of each one. French law was consistent with such a view, providing in the case of the “producer” for a shared liability, subject to safeguards on implementation, while in the case of hosts liability remained limited.
Moreover, the domestic courts had referred to the applicant’s status as a politician and inferred from this that a special obligation was incumbent upon him; he could be expected to be all the more vigilant. A politician was more likely to influence voters, or even to incite them, directly or indirectly, to adopt positions and conduct that might prove unlawful. This finding was not to be understood as entailing an inversion of the principles established in the Court’s case‑law. The specific duties required of the applicant on account of his status as politician were indissociable from the principles relating to the rights which came with such status. It was only when those principles had been properly taken into account that it would become possible for the domestic courts, where the facts submitted to them so justified and provided their decision contained the relevant reasoning, to base their decision on the ground that freedom of political expression was not absolute and that a Contracting State might render it subject to certain “restrictions” or “penalties”.
The Criminal Court and Court of Appeal had been best placed to assess the facts in the light of the difficult local context and their acknowledged political dimension. The language used in the comments at issue clearly incited hatred and violence against a person on account of his or her religion and this could not be disguised or minimised by the election context or by a wish to discuss local difficulties.
(b) Steps taken by the applicant – A minimum degree of subsequent moderation or automatic filtering would be desirable in order to identify clearly unlawful comments as quickly as possible and to ensure their deletion within a reasonable time, even where there had been no notification by an injured party, whether this was done by the host itself (in this case Facebook), acting as a professional entity which created and provided a social network for its users, or by the account holder, who used the platform to post his or her own articles or views while allowing other users to add their comments. An account holder could not claim any right to impunity in his or her use of electronic resources made available on the Internet and such a person had a duty to act within the confines of conduct that could reasonably be expected of him or her.
In the present case, no regulation had required the automatic filtering of comments and there had been no practical possibility of prior content moderation on Facebook. Accordingly, the question arose as to what steps the applicant ought to have – or could have – reasonably taken in his capacity as “producer” as defined by domestic law.
While the applicant’s initial post had been lawful, the domestic courts had taken into account the fact that he had chosen to make his Facebook “wall” publicly accessible and had “authorised his friends to post comments on it”. The Court, while agreeing with this observation, took the view that he could not be reproached for this decision in itself, as it was a technical means made available to him by the platform which enabled him to communicate with voters in his capacity as a politician and as a candidate standing for election. Nevertheless, in view of the local and election-related tensions at the time, that option was clearly not without potentially serious consequences, as the applicant must have been aware in the circumstances. It was thus legitimate to make a distinction between limiting access to the Facebook “wall” to certain individuals and making it accessible to the general public. In the latter case, everyone, and therefore especially a politician experienced in communication to the public, must be aware of the greater risk of excessive and immoderate remarks that might appear and necessarily become visible to a wider audience. This was without doubt a major factual element, directly linked to the deliberate choice of the applicant, who was not only a politician but also a professional in matters of online communication strategy and thus had some expertise in the digital field.
In addition, the use of Facebook remained subject to the acceptance of certain terms and conditions in particular those in the “Statement of rights and responsibilities”, of which the applicant must have been aware. The applicant had seen fit to draw the attention of his “friends” to the need to ensure that their remarks remained lawful, as he had posted a message asking them to “be careful with the content of [their] comments”, thus apparently showing that he was at least aware of the issues raised by certain comments. However, he had posted this warning message without deleting the impugned comments and, above all, without having taken the trouble to check, or to have checked, the content of comments that were then publicly accessible, even though the very next day the applicant had been informed of the problems that might be caused.
One of the messages had been promptly withdrawn by its author less than twenty-four hours after being posted and so to require the applicant to have acted even more promptly would amount to requiring excessive and impracticable responsiveness. That particular comment, however, was only one of the elements to be taken into consideration in the present case. The applicant had in fact been convicted, not on account of the remarks made by the two authors taken in isolation, but for failing to proceed with the prompt deletion of all the unlawful comments in question. The comments constituted a form of ongoing dialogue representing a coherent whole and it had been reasonable for the domestic authorities to apprehend them as such. It was in consideration of that dialogue that the applicant had been ordered to pay certain sums to the civil party, in spite of the fact that the only comment to have mentioned her individually had already been deleted.
Furthermore, the domestic courts had given reasoned decisions and had proceeded with a reasonable assessment of the facts, specifically examining the question whether the applicant had been aware of the unlawful comments posted on his Facebook “wall”. The applicant had told the investigators that the comments posted on his “wall” were too numerous for him to be able to read regularly, given the number of “friends” – more than 1,800 – who could post comments twenty-four hours a day. The domestic courts had not seen fit to give reasons for their decision on this key point. In fact only about fifteen comments had appeared in response to his post. Accordingly, no question arose as to the difficulties caused by potentially excessive traffic on a politician’s account and the resources required to ensure its effective monitoring.
The Court found it appropriate to proceed with a proportionality analysis based on the degree of liability that might be attributed to the account holder: a private individual of limited notoriety and representativeness would have fewer duties than a local politician or a candidate standing for election to local office, who in turn would have a lesser burden than a national figure for whom the requirements would necessarily be even heavier, on account of the weight and scope accorded to his or her words and the resources to which he or she would enjoy greater access in order to intervene efficiently on social media platforms.
(c) The possibility of holding the authors liable instead of the applicant – First, the acts of which the applicant had stood accused were both distinct from those committed by the authors of the unlawful comments and governed by a different regime of liability, one that was related to the specific and autonomous status of “producer”. Second, the applicant had not been prosecuted in the place of the two authors, who themselves had also been convicted. Consequently, any questions relating to anonymity on the Internet and the identification of authors, as examined by the Court in the case of Delfi AS v. Estonia [GC], had not arisen in the present case.
(d) Consequences of the domestic proceedings for the applicant – A criminal conviction was capable of having chilling effects for the users of Facebook, other social networks or discussion fora. However, in the Annex to Recommendation CM/Rec(2022)16, the Council of Europe Committee of Ministers had proposed to make a distinction according to the seriousness of the hate speech, without excluding recourse to the criminal law. The imposition of a prison sentence for an offence in the area of political speech might be compatible with freedom of expression but only in exceptional circumstances, notably in the case of hate speech or incitement to violence. In addition, even if a fine of a certain amount might appear harsh in relation to the circumstances, it had to be assessed in the light of the fact that a prison sentence could, in principle, have been handed down.
The maximum penalty faced by the applicant had been a one-year prison term and a fine of EUR 45,000. However, he had only been sentenced to a fine of EUR 3,000 together with the payment of EUR 1,000 to the civil party in costs. Moreover, there had been no other consequences for the applicant. It had not been alleged by the applicant that he had subsequently been forced to change his conduct, or that his conviction had had a chilling effect on the exercise of his freedom of expression or any negative impact on his subsequent political career and his relations with voters. He had been elected mayor in 2014 and had continued to exercise responsibilities for his political party.
(e) Conclusion – The decisions of the domestic courts had been based on relevant and sufficient reasons, both as to the liability attributed to the applicant, in his capacity as a politician, for the unlawful comments posted in the run-up to an election on his Facebook “wall” by third parties, who themselves had been identified and prosecuted as accomplices, and as to his criminal conviction. The impugned interference could therefore be considered to have been “necessary in a democratic society”.
Conclusion: no violation (thirteen votes to four).
(See also Féret v. Belgium, 15615/07, 16 July 2009, Legal summary; Delfi AS v. Estonia [GC], 64569/09, 16 June 2015, Legal summary; Perinçek v. Switzerland [GC], 27510/08, 15 October 2015, Legal summary; Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, 22947/13, 2 February 2016, Legal summary; and Recommendation 1814 (2007) of the Parliamentary Assembly of the Council of Europe, Towards decriminalisation of defamation, of 4 October 2007; Recommendation CM/Rec(2022)16 of the Committee of Ministers of the Council of Europe to member States on combating hate speech of 20 May 2022)