Kupsch, Frederic

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Watch Your Facebook CommentSection!Frederic Kupsch 2021-10-15T08:00:55Recently, in Sanchez v France, the European Court of Human Rights (the Court)swung the door towards social media users’ liability wide open, allowing not onlypoliticians, as in the case at hand, but also other social media users to be heldcriminally liable for third parties’ hate speech comments. Although Sanchez v Franceis only a Chamber judgment, its impact on the use of social media as a platform toexpress and share opinions could be enormous. As such, a rectification – or at leastclarification – by the Grand Chamber (GC) is desirable.The CaseJulien Sanchez actively used Facebook both as mayor of Beaucaire and as acandidate for Front National (now named Rassemblement National) in the run-up to the French Parliamentary elections. On 24 October 2011, Sanchez posteda sneering comment directed at his political opponent in Nîmes, which eventuallyattracted comments amounting to hate speech against Muslims living in Nîmes. TheCourt of Appeal upheld the judgment of the Criminal Court on the matter, which heldMr. Sanchez criminally liable for unlawful comments posted by the followers of hispage. In last instance, the Court of Cassation dismissed the cassation complaint ofMr. Sanchez. Remarkably, perhaps, the Fifth Section of the ECtHR concluded thathis criminal conviction did not violate Art. 10 ECHR, with only one dissenting judge.Good Intentions, Bad ExecutionThe Court maintained its line that clearly unlawful hate speech comments set thelimit when it comes to freedom of expression online. In its proportionality test,the Court applied the criteria it had established in Delfi AS v Estonia and furtherdeveloped in MTE and Index v Hungary, to assess whether the national courts reliedon relevant and sufficient reasons justifying the interference with Art. 10 ECHR.Yet at the same time, the Court departed from the distinction it had introduced inDelfi AS, between commercial internet news portals on the one, and social mediaplatforms or private persons running a website or blog as a hobby on the other hand.There, the GC stated that a large commercial internet news portal can be held liablefor hate speech comments when it invites users to comment (§§ 115, 162). In thecase at hand, however, Mr. Sanchez acted neither for commercial purposes norin journalistic capacity, but as a public user of a social media platform. Thus, theCourt quietly extended its approach of platform intermediary liability to include theplatform’s users. It is not a stretch to follow dissenting Judge Mourou-Vikström andargue that at least an explanation for this deviation could have been expected.Furthermore, in its 2020 Jezior v Poland judgment, the Court affirmed that holdinga politician liable for third-parties’ defamatory comments on his blog violates Art. 10- 1 -ECHR. Notably, in Jezior, the Court applied the Delfi AS criteria. Therefore, itseems that the Court disapplied the criteria in the light of a hate speech case; thedestructive power of hate speech rendered the criteria pale. Consequently, theappearance of hate speech might be crucial to justify extending liability rules forthird-parties’ comments to include social media users themselves. Evidently, itappears necessary for the GC to explain the differences in approaches betweenJezior and Sanchez. It must clarify whether Delfi AS was an exceptionally narrowdecision based on exceptional circumstances, or whether it was the door-opener forwider liability, which would cover individual users for other users’ comments.To Know, or Not to Know: That is the QuestionImportant when comparing Sanchez and Delfi AS is the question whether knowledgeof the comments is prerequisite for liability. The comments were online for almost sixweeks, but the Court did not consider whether Mr. Sanchez had knowledge of them– even it is likely that he had. If the case was in line with Delfi AS, the obligation toremove hate speech promptly would apply, even without prior knowledge, and wouldbe extended to politicians on their Facebook wall. If, alternatively, the obligation toremove hate speech comments promptly existed for politicians only after gainingknowledge of the comments, this second reading would mitigate the strict Delfi AS-approach (see Sanchez § 100). However, the Court’s comparison to Delfi AS andPihl v Sweden, in which the unlawful content remained online for six weeks andnine days respectively (Sanchez § 97), and in both of which knowledge was not adecisive factor, may give weight to the first reading.Although both readings seem possible, they lead to fundamentally different humanrights implications. The first is more problematic, as it would force politicians tomonitor all content posted by third parties on their pages pre-emptively, obligingthem to use human resources or automatic filtering. Such measures could dissuadeusers from posting a comment publicly in the first place, if politicians did not closetheir comment sections altogether. Both possible outcomes lead to a significantchilling effect on freedom of expression (see Joint Dissenting Opinion of JudgesSajó and Tsotsoria (§ 1), here and here). The second reading would be in line withthe EU’s current safe harbour regime for hosting providers under the E-CommerceDirective, which requires actual knowledge for liability. Even though criticised inthe context of social media platforms, it provides reasonable requirements forliability rules for individuals as the exemption of liability and the actual knowledgerequirement would strike an appropriate balance between human rights.Therefore, as deciding between both readings has significant legal consequences,the GC should clarify the Court’s prerequisites for liability.Criminal Liability and Chilling EffectThe chilling effect would worsen when a state imposes criminal liability for third-parties’ comments. In many countries, criminal liability presupposes intent (see hereand Dissenting Opinion of Judge Mourou-Vikström), which would imply knowledgeof the comments. Although the knowledge question is not decided on in the caseat hand, the Court does not explicitly exclude criminal liability without intent. Such- 2 -an approach may lead instances of online abuse, such as, for example, politicalopponents using fake accounts to post comments at scale could easily provoke theFacebook page owner’s criminal liability. Commercial platforms, such as Facebook,might have the economic, technical and professional resources to review possibleunlawful comments, but most politicians do not.With Great Power Comes Great ResponsibilityAdditionally, the GC ought to clarify the possible scope of Sanchez as the chamberconferred additional duties (compared to the Jezior judgment) onto politicians inthe exercise of their freedom of expression: to defend democracy (§ 89) and fightagainst hate speech (§ 87). Although the comments were made in a political context,and states thus have little scope for restrictions under Art. 10 § 2 ECHR (§ 83), theCourt found that criminal liability was proportionate. In fact, in this case, the politicalcontext of the comments was a decisive reason to even confer additional duties. Thelimited reasoning becomes even more alarming if we consider the vague notion of“political context”, which could arguably even apply to non-politicians, like influentialprivate persons (“influencers”) on social media, who may create content within apolitical context. For example, the ‘Destruction of…”-videos of the German YouTuberRezo attracted millions of views and over 130,000 comments before the German(Federal) Parliamentary elections in 2021.The comparison of both groups follows the maxim that with great power (overpolitical discussions) comes great responsibility. This pairing is recognised by theCourt regarding political expressions of politicians (see Erbakan v Turkey §§ 55,65), whereas the Court already recognises that “bloggers and popular users of […]social media” perform a watchdog function under Art. 10 ECHR in Magyar HelsinkiBizottság v Hungary (GC) (§ 168). Imposing similar duties and responsibilities onthem could be the next consequential step. However, could we reasonably expectto monitor 130,000 comments from Rezo? In the present judgment, the Chamberneglected to pounder on the practicality and feasibility of the duties it appears toimpose.ConclusionThe door towards liability for third parties’ hate speech comments has been openedmore widely, leaving room for harmful implications and negative effects on freedomof expression. Julien Sanchez has announced he would ask for a referral to theGrand Chamber. If the GC accepts, its task must be mitigating the possible effectsand clarifying the Court’s approach to liability for third parties’ hate speech.Additionally, the GC might clarify how the Court’s approach is compatible withthe EU internet intermediaries liability regime and the proposal of the EuropeanCommission. In contrast to the DSA, the Court confirms “sans aucun doute” (“withoutany doubt”) a shared responsibility between social networks and its users regardingunlawful comments (§ 98), thus splitting obligations. As this solution seems to beSolomonic wisdom, it does not answer how the responsibilities are shared. Butimposing criminal liability on the users, seems as an unfair distribution (especiallywhen the authors are identified as in Sanchez).- 3 -- 4 -

Watch Your Facebook Comment Section!

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Watch Your Facebook Comment Section!

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