ESD: You are responsible for the content of your FB pages, including comments made by others

Sanchez himself (at the time mayor of a French town and a candidate for the parliamentary elections) took his case to the European Court of Justice, disagreeing with the decision of two instances of the French courts. They fined him €3,000 for failing to remove hateful comments by his supporters from his Facebook page.

The European Court of Justice found that the national French courts had convicted the complainant of the offence of incitement to hatred or violence against a group because he had initiated a space for discussion on his Facebook wall, allowing some of the hateful comments to remain visible for almost six weeks (instead of deleting them in time). The fact that the complainant is an elected representative of the people and a public figure should have led him to be particularly vigilant in this regard.

Sanchez posted a critique of his political opponent, F.P. The post itself was not controversial, merely pointing out the inactivity of a rival politician. However, Mr Sanchez’s supporters supplemented the post with comments about the political party that Mr F.P. represented (“the UMP and PS are Muslim allies”), also about Mr F.P.’s partner. P., and went on to criticize Muslims (among other things, they mentioned that “…there are veiled women all over the city”… “Muslims have long been involved in the drug trade, even despite the installation of CCTV cameras in the streets”… “stones are thrown at the cars of ‘white people’ [Muslims] and Nîmes has become the capital of danger in the whole region” and that “drug dealers and prostitutes rule the city”).

In his defense, Sanchez stated that his post was not hateful in any way, and that he was unable to keep track of the large number of comments posted each week on the wall of his Facebook account. He added that the comments in question were not written by him and some comments were even deleted by the commenters themselves. He also stated that the partner of politician F. P. did not know her by name and had no idea that the commenters were insulting her. He himself distanced himself from the racist and discriminatory comments and at one point urged followers to be careful about the content of their comments.

On the one hand, the courts found that the posted comments were clearly unlawful and clearly defined a certain group of people, namely Muslims, which may have aroused a strong feeling of rejection and hostility towards them. The comments identified Muslims with “drug dealers and prostitutes” or those who commit violence and could thus have created a strong feeling of hostility towards them. The case at hand concerned the complainant’s Facebook account wall, which was not only freely accessible to the public, but was intended as a statement and communication aimed at the electorate, i.e. the general population, in the context of the election campaign. The Court also stated that the internet, with its accessibility and ability to store vast amounts of information, plays an important role in the public’s access to information.

What is particularly interesting about the courts’ decision is the definition of criminal liability for an act which the complainant himself did not actively commit. On this aspect of the case, the courts stated that Sanchez’s criminal liability could be inferred where it could be shown that he was aware of the content of the comments but nevertheless failed to delete them. According to the criminal court, he was also responsible for them because he was the one who gave his friends access to post the comments on his wall and was therefore responsible for checking the content of the posts. Given the potential political nature of the comments, he should have monitored the content all the more carefully.

According to the ECJ , it is legitimate for the position of the owner of a social networking wall to entail special obligations, in particular if, like the complainant, the owner of the wall does not restrict access and leaves it open to the public.