{"id":15521,"date":"2021-10-15T08:00:55","date_gmt":"2021-10-15T06:00:55","guid":{"rendered":"https:\/\/voelkerrechtsblog.org\/?p=15521"},"modified":"2021-10-17T10:39:14","modified_gmt":"2021-10-17T08:39:14","slug":"watch-your-facebook-comment-section","status":"publish","type":"post","link":"https:\/\/voelkerrechtsblog.org\/de\/watch-your-facebook-comment-section\/","title":{"rendered":"Watch Your Facebook Comment Section!"},"content":{"rendered":"

Recently, in Sanchez v France<\/em><\/a>, the European Court of Human Rights (the Court) swung the door towards social media users\u2019 liability wide open, allowing not only politicians, as in the case at hand, but also other social media users to be held criminally liable for third parties\u2019 hate speech comments. Although Sanchez v France<\/em> is only a Chamber judgment, its impact on the use of social media as a platform to express and share opinions could be enormous. As such, a rectification \u2013 or at least clarification \u2013 by the Grand Chamber (GC) is desirable.<\/p>\n

The Case<\/strong><\/p>\n

Julien Sanchez actively used Facebook both as mayor of Beaucaire and as a candidate for Front National<\/em> (now named Rassemblement National<\/em>) in the run-up to the French Parliamentary elections. On 24 October 2011, Sanchez posted a sneering comment directed at his political opponent in N\u00eemes, which eventually attracted comments amounting to hate speech against Muslims living in N\u00eemes. The Court of Appeal upheld the judgment of the Criminal Court on the matter, which held Mr. Sanchez criminally liable for unlawful comments posted by the followers of his page. In last instance, the Court of Cassation dismissed the cassation complaint of Mr. Sanchez. Remarkably, perhaps, the Fifth Section of the ECtHR concluded that his criminal conviction did not violate Art.\u00a010 ECHR, with only one dissenting judge.<\/p>\n

Good Intentions, Bad Execution<\/strong><\/p>\n

The Court maintained its line that clearly unlawful hate speech comments set the limit 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<\/em><\/a> and further developed in MTE and Index v Hungary<\/em><\/a>, to assess whether the national courts relied on relevant and sufficient reasons justifying the interference with Art.\u00a010 ECHR. Yet at the same time, the Court departed from the distinction it had introduced in Delfi AS, <\/em>between commercial internet news portals on the one, and social media platforms 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 liable for hate speech comments when it invites users to comment (\u00a7\u00a7\u00a0115, 162). In the case at hand, however, Mr. Sanchez acted neither for commercial purposes nor in journalistic capacity, but as a public user of a social media platform. Thus, the Court quietly extended its approach of platform intermediary liability to include the platform\u2019s users. It is not a stretch to follow dissenting Judge Mourou-Vikstr\u00f6m<\/a> and argue that at least an explanation for this deviation could have been expected.<\/p>\n

Furthermore, in its 2020 Jezior v Poland<\/em><\/a> judgment, the Court affirmed that holding a politician liable for third-parties\u2019 defamatory comments on his blog violates Art.\u00a010 ECHR. Notably, in Jezior, <\/em>the Court applied the Delfi AS<\/em> criteria.<\/em> Therefore, it seems that the Court disapplied the criteria in the light of a hate speech case; the destructive power of hate speech rendered the criteria pale. Consequently, the appearance of hate speech might be crucial to justify extending liability rules for third-parties\u2019 comments to include social media users themselves. Evidently, it appears necessary for the GC to explain the differences in approaches between Jezior<\/em> and Sanchez<\/em>. It must clarify whether Delfi AS<\/em> was an exceptionally narrow decision based on exceptional circumstances, or whether it was the door-opener for wider liability, which would cover individual users for other users\u2019 comments.<\/p>\n

To Know, or Not to Know: That is the Question<\/strong><\/p>\n

Important when comparing Sanchez<\/em> and Delfi AS <\/em>is the question whether knowledge of the comments is prerequisite for liability. The comments were online for almost six weeks, but the Court did not consider whether Mr. Sanchez had knowledge of them \u2013 even it is likely that he had. If the case was in line with Delfi AS<\/em>, the obligation to remove hate speech promptly would apply, even without prior knowledge, and would be extended to politicians on their Facebook wall. If, alternatively, the obligation to remove hate speech comments promptly existed for politicians only after<\/em> gaining knowledge of the comments, this second reading would mitigate the strict Delfi AS<\/em>-approach (see Sanchez<\/em><\/a> \u00a7\u00a0100). However, the Court\u2019s comparison to Delfi AS <\/em>and Pihl v Sweden<\/em><\/a>, in which the unlawful content remained online for six weeks and nine days respectively (Sanchez<\/em><\/a> \u00a7\u00a097), and in both of which knowledge was not a decisive factor, may give weight to the first reading.<\/p>\n

Although both readings seem possible, they lead to fundamentally different human rights implications. The first is more problematic, as it would force politicians to monitor all content posted by third parties on their pages pre-emptively, obliging them to use human resources or automatic filtering. Such measures could dissuade users from posting a comment publicly in the first place, if politicians did not close their comment sections altogether. Both possible outcomes lead to a significant chilling effect on freedom of expression (see Joint Dissenting Opinion of Judges Saj\u00f3 and Tsotsoria<\/a> (\u00a7\u00a01), here<\/a> and here<\/a>). The second reading would be in line with the EU\u2019s current safe harbour regime for hosting providers under the E-Commerce Directive<\/a>, which requires actual knowledge for liability. Even though criticised<\/a> in the context of social media platforms, it provides reasonable requirements for liability rules for individuals as the exemption of liability and the actual knowledge requirement would strike an appropriate balance between human rights.<\/p>\n

Therefore, as deciding between both readings has significant legal consequences, the GC should clarify the Court\u2019s prerequisites for liability.<\/p>\n

Criminal Liability and Chilling Effect<\/strong><\/p>\n

The chilling effect would worsen when a state imposes criminal liability for third-parties\u2019 comments. In many countries, criminal liability presupposes intent (see here<\/a> and Dissenting Opinion of Judge Mourou-Vikstr\u00f6m<\/a>), which would imply knowledge of the comments. Although the knowledge question is not decided on in the case at hand, the Court does not explicitly exclude criminal liability without intent. Such an approach may lead instances of online abuse, such as, for example, political opponents using fake accounts to post comments at scale could easily provoke the Facebook page owner\u2019s criminal liability. Commercial platforms, such as Facebook<\/a>, might have the economic, technical and professional resources to review possible unlawful comments, but most politicians do not.<\/p>\n

With Great Power Comes Great Responsibility<\/strong><\/p>\n

Additionally, the GC ought to clarify the possible scope of Sanchez<\/em> as the chamber conferred additional duties (compared to the Jezior<\/em> judgment) onto politicians in the exercise of their freedom of expression: to defend democracy (\u00a7\u00a089) and fight against hate speech (\u00a7\u00a087). Although the comments were made in a political context, and states thus have little scope for restrictions under Art.\u00a010 \u00a7\u00a02 ECHR (\u00a7\u00a083), the Court found that criminal liability was proportionate. In fact, in this case, the political context of the comments was a decisive reason to even confer additional duties. The limited reasoning becomes even more alarming if we consider the vague notion of \u201cpolitical context\u201d, which could arguably even apply to non-politicians, like influential private persons (\u201cinfluencers\u201d) on social media, who may create content within a political context. For example, the \u2018Destruction of\u2026\u201d-videos of the German YouTuber Rezo<\/em><\/a> attracted millions of views and over 130,000 comments before the German (Federal) Parliamentary elections in 2021.<\/p>\n

The comparison of both groups follows the maxim that with great power (over political discussions) comes great responsibility. This pairing is recognised by the Court regarding political expressions of politicians (see Erbakan v Turkey<\/em><\/a> \u00a7\u00a7\u00a055, 65), whereas the Court already recognises that \u201cbloggers and popular users of [\u2026] social media\u201d perform a watchdog function under Art.\u00a010 ECHR in Magyar Helsinki Bizotts\u00e1g v Hungary<\/em><\/a> (GC) (\u00a7\u00a0168). Imposing similar duties and responsibilities on them could be the next consequential step. However, could we reasonably expect to monitor 130,000 comments from Rezo<\/em>? In the present judgment, the Chamber neglected to pounder on the practicality and feasibility of the duties it appears to impose.<\/p>\n

Conclusion<\/strong><\/p>\n

The door towards liability for third parties\u2019 hate speech comments has been opened more widely, leaving room for harmful implications and negative effects on freedom of expression. Julien Sanchez has announced<\/a> he would ask for a referral to the Grand Chamber. If the GC accepts, its task must be mitigating the possible effects and clarifying the Court\u2019s approach to liability for third parties\u2019 hate speech.<\/p>\n

Additionally, the GC might clarify how the Court\u2019s approach is compatible with the EU internet intermediaries liability regime and the proposal<\/a> of the European Commission. In contrast to the DSA, the Court confirms \u201csans aucun doute\u201d (\u201cwithout any doubt\u201d) a shared responsibility between social networks and its users regarding unlawful comments (\u00a7\u00a098), thus splitting obligations. As this solution seems to be Solomonic wisdom, it does not answer how the responsibilities are shared. But imposing criminal liability on the users, seems as an unfair distribution (especially when the authors are identified as in Sanchez<\/em>).<\/p>\n","protected":false},"excerpt":{"rendered":"

Recently, in Sanchez v France, the European Court of Human Rights (the Court) swung the door towards social media users\u2019 liability wide open, allowing not only politicians, as in the case at hand, but also other social media users to be held criminally liable for third parties\u2019 hate speech comments. Although Sanchez v France is […]<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[6639],"tags":[],"authors":[6893],"article-categories":[6000],"doi":[],"class_list":["post-15521","post","type-post","status-publish","format-standard","hentry","category-uncategorized","authors-frederic-kupsch","article-categories-article"],"acf":{"subline":"Holding Politicians Criminal Liable for Third Parties\u2019 Hate Speech \u2013 No Violation of Freedom of Expression under the ECHR"},"meta_box":{"doi":"10.17176\/20211015-164744-0"},"_links":{"self":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/15521","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/comments?post=15521"}],"version-history":[{"count":4,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/15521\/revisions"}],"predecessor-version":[{"id":15536,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/posts\/15521\/revisions\/15536"}],"wp:attachment":[{"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/media?parent=15521"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/categories?post=15521"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/tags?post=15521"},{"taxonomy":"authors","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/authors?post=15521"},{"taxonomy":"article-categories","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/article-categories?post=15521"},{"taxonomy":"doi","embeddable":true,"href":"https:\/\/voelkerrechtsblog.org\/de\/wp-json\/wp\/v2\/doi?post=15521"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}