The Writing on the Wall – could you be liable for someone else’s hate speech?

In a recent decision, the Grand Chamber of the European Court of Human Rights, delivered its judgment in Sanchez v France.

This remarkable decision held a French far-right politician, Julien Sanchez, liable as a “producer” for hate speech published by third parties on his public Facebook page. Although his wall was publicly accessible, only his ‘friends’ could post on the wall.

Sanchez posted about his political opponent during the election period. While his post was not problematic, two of his followers responded with racist comments, including personal reference to Sanchez’s political opponent’s wife. The comments were considered to be hate speech, targeting a specific group (Muslims), and specifically, the opponent’s wife. There is no question that such conduct is abhorrent and has no place online. Sanchez, together with the commentators were convicted in the French criminal courts of incitement to hatred or violence against a group or an individual on account of their origin/belonging or not belonging to a specific ethnic group, nation, race or religion. Sanchez was ordered to pay EUR 1,000 by way of a fine. This conviction was upheld by France’s Supreme Court, and then again at EU level by Strasbourg.

So what was Sanchez guilty of? By allowing these racist comments to remain on his public Facebook wall, particularly in his role as a politician, he was jointly liable for the content, together with the posters of the offending comments. The Chamber majority at Strasbourg found that his criminal conviction did not violate his Article 10 (freedom of expression) rights. They held that the interference with his Article 10 rights was ‘foreseeable’ and pursued the legitimate aim of protecting the rights and reputation of others.

If Sanchez had made his Facebook account private, it may have been a different outcome. However, as a political figure, using social media to exchange opinions in a public setting, especially during an election campaign, he was responsible for monitoring comments posted by others on his wall and for removing offending content in a timely manner. In other words, Sanchez should have known that third parties may post illegal content and should have been actively moderating and removing comments from his wall.

Where does that leave free speech online? In what circumstances will domestic law holding public figures criminally liable for third party content be declared incompatible for freedom of expression, especially in an electoral context? The Grand Chamber made it clear that this determination was fact-specific, but this leaves little comfort or certainty.

Protection of free speech, especially polemical speech in the context of elections, is vital. However, this judgment places an unreasonable burden on the owners of certain public social media profiles to monitor and remove potentially unlawful content. How do individuals decide whether content is “clearly unlawful”? Surely the risk of liability will cause people to err on the side of caution and remove lawful content. How does this sit with the social media companies’ own T&Cs regarding content, including hate speech policies, and their obligations as intermediaries?

The judgment raises far more questions than it solves. Whilst English criminal law may have not reached the same domestic outcome regarding Sanchez’s criminal liability, making prominent social media users potentially (criminally) liable for third party content will no doubt negatively impact legitimate free speech online.