Hate Speech by Proxy: Sanchez v France and the Dwindling Protection of Freedom of Expression

[Dr. Natalie Alkiviadou is a Senior Research Fellow at Justitia, a Danish judicial think tank focusing on human rights. She works on the Future of Free Speech project.]

Introduction

This short piece has been inspired by the case of Sanchez v France which was decided by the European Court of Human Rights (ECtHR) this year and which I argue, hereinafter, is yet another worrying development in the framework of freedom of expression. This case involved the criminal conviction of the applicant for inciting hatred or violence against a group of people/an individual due to their religion. This conviction did not emanate from his own speech but rather from his failure to take prompt action in deleting comments that others wrote under one of his posts on Facebook. At the material time, Sanchez was a Front National parliamentary candidate for the Nîmes constituency. Sanchez posted a comment about the website of one of his political opponents F.P (a Member of the European Parliament). Under this post, a user, S.B, wrote that F.P. has:

“transformed Nîmes into Algiers, there is not a street without a kebab shop and mosque; drug dealers and prostitutes reign supreme, no surprise he chose Brussels, capital of the new world order of sharia… Thanks [F.] and kisses to Leila ([L.T]) … Finally, a blog that changes our life …” 

Another user, L.R., added three other comments directed at Muslims such as allegations that Muslims sell their drugs without police intervention and that they throw rocks at cars belonging to “whites” . On 26 October 2011, L.T. wrote to the Nîmes public prosecutor to lodge a criminal complaint against Mr Sanchez and the users who posted the offending comments. A day later, Sanchez posted a message on the wall of his Facebook account inviting users to “monitor the content of [their] comments” but did not remove already posted comments. Sanchez appealed but the Court of Appeal upheld the first instance verdict (but lowered the fine by 1,000 EUR). 

Sanchez – A Further Corrosion of Freedom of Expression by the ECtHR

In this case, we are dealing with a kind of Féret /Le Pen – Delfi mélange. The ECtHR held that the comments were ‘clearly unlawful.’ It noted that the language used by users (not Sanchez) ‘clearly encouraged incitement to hatred and violence against a person because of their belonging to a religion.’ Within this framework, it endorsed the position it initially developed in Féret v Belgium and then in Vejdeland v Sweden and Atamanchuk v Russia, that incitement to hatred:

“did not necessarily require the calling of a specific act of violence or another criminal act. Attacks on persons committed through insults, ridicule or defamation aimed at specific population groups or incitation to discrimination, as in this case, sufficed for the authorities to give priority to fighting hate speech when confronted by the irresponsible use of freedom of expression which undermined people’s dignity, or even their safety.”

In light of the above, it seems that Sanchez is another drop in the dilution of the protection granted by the ECtHR to freedom of expression, in the framework of what it loosely perceives as incitement to hatred. Whilst clearly derogatory and xenophobic, it is unclear how the Féret paradigm has actually been developed, both contextually and theoretically. Specifically, how is, for example, an insult, sufficient to meet the threshold of incitement to hatred? Noteworthy is the Court’s own decision in Handyside v The United Kingdom, which ruled that freedom of expression encapsulates ideas that may even ‘offend, shock or disturb.’ Further, in Ibragim Ibragimov and Others v Russia, which involved the prohibition of Said Nrusi’s book, due to its allegedly constituting extremist literature, the Court found that, since the book depicted a moderate, non-violent understanding of Islam, the restriction to speech was not legitimate. Importantly, it noted that:

“merely because a remark may be perceived as offensive or insulting by particular individuals or groups does not mean that it constitutes “hate speech.” Whilst such sentiments are understandable, they alone cannot set the limits of freedom of expression. The key issue in the present case is thus whether the statements in question, when read as a whole and in their context, could be seen as promoting violence, hatred or intolerance.”

However, in Sanchez, as well as in the other cases using the Féret paradigm, the ECtHR does not actually conduct an adequate contextual and legal analysis to ascertain whether and, if so, how, there is an incitement to hatred. Relevant to this is that it is doubtful at best whether the users’ comments were actually severe enough to justify the imposition of criminal penalties.  The fact that the applicant received a criminal penalty even though he had not actually made any of the comments complicates matters further. In relation to criminal penalties, the position of the United Nation’s Special Rapporteur on the Protection and Promotion of the Right to Freedom of Opinion and Expression is reiterated, namely, that ‘only serious and extreme instances of incitement to hatred… should be criminalized.’ Also, the The Rabat Plan of Action underlined that ‘criminal sanctions related to unlawful forms of expression should be seen as last resort measures’ In relation to the ‘proxy’ aspect of the case, it was not the applicant himself who made the impugned comments but rather other Facebook users. The ECtHR noted that, by allowing his Facebook wall to be public, Sanchez assumed responsibility for the content of the comments posted. It agreed with the French court, which found that Sanchez left the comments up for 6 weeks before removing them, and was thus guilty as the producer of an online public communication site and thus the principal offender. Notable is that fact that Sanchez did post a message asking users to monitor their comments’ content. Here, the ECtHR transposed its Delfi v Estonia findings, which involved the content moderation responsibility of a news portal to an individual, placing this duty within the responsibilities the applicant had as a political candidate. To this end, it held that, although (in theory) political parties enjoy a wide freedom of expression in an electoral context, this did not extend to racist or xenophobic discourse and that politicians had a particular responsibility in combatting hate speech. This has been addressed in several cases. For example, in Féret v Belgium, the ECtHR emphasized that ‘political speech that stirred hatred based on religious, ethnic or cultural prejudices was a threat to social peace and political stability in democratic States.’ It also underlined the significance of politicians taking care when expressing themselves in public, so as to avoid promoting feelings of intolerance. However, the difference with Féret and Sanchez is that the former involved the speech of the applicant himself whereas in the latter involved speech by others and imposed a responsibility on the applicant to limit their speech, agreeing with the criminal penalty imposed by the national court for not doing so.  

Conclusion

Sanchez v France adds to the long list of hate speech cases decided by the ECtHR without sufficient contextual or theoretical substantiation, adopting a low threshold of protection of the right to freedom of expression. In this case, it has allowed for the criminalization of expression not uttered by the applicant but by users commenting under his post due to his non-removal of these posts (despite his call for users to moderate their content). Whilst it is imperative to construct communities and societies on principles of equality and non-discrimination, achieving this by adopting such a restrictive approach to a right which is so fundamental to a democratic society and which also entails speech that may be shocking, offensive or disturbing is, to say the very least, of concern.