In the third week of May 2023, there was anticipation surrounding the European Court of Human Rights (ECtHR) and its decision in the case of Sanchez v France. The case concerned many issues of interest for politicians, users of social media platforms, and intermediary service providers. It also concerned whether the European-style safe harbor model regulation applied, including a comprehensive ban on tracking or monitoring private users. The decision is remarkable from both a regulatory and societal standpoint as it marked a departure from previous ECtHR judgments, such as the Delfi case, as the ECtHR’s decision now appeared to subject certain individuals, including public figures and politicians, to continuous monitoring to secure immunity from liability for comments posted on their Facebook wall by third parties. This shift in perspective raised questions and sparked discussions about the evolving landscape of online expression and the responsibilities of platform operators and users alike.

To contextualize the decision, the European framework regarding responsibility for content on the Internet must be outlined. The core rules on the liability framework in the European Union for online content were established in the E-Commerce Directive in 2000. These rules introduced a threefold framework, with the first two categories, “mere conduit” and “caching”, offering providers immunity from liability. In the third category, hosting providers would escape liability if they had no knowledge of unlawful activity or information and, in cases related to claims for damages, lacked knowledge of facts or circumstances that clearly indicated unlawful activity or information. Alternatively, they could avoid liability by promptly removing or restricting access to such content upon becoming aware of these facts. The key innovation was the provision referred to as the NTDS (notice and takedown system), stipulating that intermediaries were required to possess certain knowledge of clearly illegal content and take timely actions for removal.

Given the above regulatory summary, the authors propose a detailed overview of the Sanchez case for a practical contextualization of the provisions of the Directive. In the autumn of 2015, an individual of French nationality, Julien Sanchez lodged a complaint with the ECtHR, alleging a violation of his rights under Article 10 of the European Convention on Human Rights (ECHR). Sanchez, a candidate for the Front National in the French parliamentary elections within the Nîmes constituency, found himself engaged in a political rivalry with F.P. Both aimed to launch new websites: Sanchez successfully doing so while F.P. faced obstacles. Sanchez used his Facebook page to inform his followers of this disparity. In response to this post, comments emerged, notably one from S.B., which contained offensive and discriminative language towards immigrants, insinuating a negative transformation of Nîmes, invoking terms like „KEBAB SHOP,” „MOSQUE,” „DRUG DEALERS,” and „PROSTITUTES.” S.B.’s comment also mentioned „SHARIA”. A commenter, L.R., contributed three comments with content that appeared to blame Muslims for the city’s problems. These comments prompted another user, L.T., F.P.’s partner, to perceive them as racist and personally offensive. While Sanchez later urged Facebook wall users to exercise caution with comment content, he left the existing comments uncensored, unmoderated, and intact. An investigation was launched against Sanchez concerning the comments, resulting in litigation before the national court. The national judges held Sanchez liable as the „publisher” of an online public communication site since he created the platform and did not remove the offensive posts. The politician was also fined. Though Sanchez challenged the decision before a superior court, the second national process affirmed the primary decision. Sanchez then applied to the ECtHR, alleging a breach of Article 10 of the European Convention of Human Rights, which safeguards freedom of expression.

The Fifth Section of the ECtHR heard the case, and Sanchez argued that he had taken measures to ensure the removal of comments considered unlawful, emphasizing the ECtHR’s practice regarding the specific protection of political speech. He contended that closing the space for comments to prevent the publication of offensive content would have an excessively chilling effect on freedom of expression. The defendant (France) argued that Facebook walls constituted online public communication and positioned Sanchez’s page as a discussion forum. The ECtHR, therefore, had two principal questions to decide: (1) is a Facebook wall a public forum, and if so, (2) should a politician handling a Facebook wall be liable for hateful and xenophobic comments?

The ECtHR reasoned that despite the political context, there are limits to comments made in political debates, especially regarding the respect for others’ reputations and rights. The Court highlighted the importance of combating racial discrimination and intolerance, particularly in electoral contexts marked by specific tensions. The judges accentuated that Sanchez’s status as a politician did not exempt him from hate speech restrictions, and he was held responsible for failing to remove polemical comments despite daily monitoring. In sum, the Court affirmed the national courts’ decisions and found that Sanchez’s rights under Article 10 of the ECHR were not breached.

The case was referred to the Grand Chamber of the ECtHR (GC), which delivered its final judgment on May 15, 2023. The GC highlighted the importance of free political debate in a democratic society and noted that there certainly was an interference with Sanchez’s rights under Article 10 of the ECHR. However, they indicated that political communication was not absolute and could be restricted, especially if discriminatory or conveying hatred, and underlined that Sanchez, as a political actor, was expected to avoid reinforcing intolerance. Regarding liability for comments on Sanchez’s Facebook page, the GC emphasized that the comments clearly constituted hate speech targeting the Muslim community in the city. Despite having found no requirement for Sanchez to filter comments, the Court held Sanchez liable due to the public accessibility of his page and the political context of elections. The GC, therefore, held that the interference with Sanchez’s rights under Article 10 of the ECHR was necessary in a democratic society. The judgment was everything but unanimous – a multitude of dissenting opinions and alternative views were attached to the decision. Some judges expressed concerns about foreseeability and the scope of obligations imposed on Sanchez while emphasizing the need for proportionate measures and defined time limits for content removal in similar cases.

The question rightly arises – what does the Sanchez judgment mean for the future concerning politicians and commenting during campaign season? While the decision emphasizes the narrow scope for restricting political communication and discourse, it deviates notably from prior ECtHR practice, as it introduces a potentially concerning precedent. The ECtHR has traditionally upheld the protection of Article 10 of the ECHR for political and social information, even if it is provocative or offensive – yet the Sanchez decision introduces a shallow threshold for the protection of political speech. The judgment’s argument that foreseeability becomes flexible in the face of new legal situations raises concerns about potential self-censorship and a chilling effect on commentators. This could undermine the protection and promotion of political dialogue, a core value the ECtHR upholds. Questions also arise regarding the decision’s consistency with the values of pluralism of opinion and public information and participation in the debate.

In summary, political debates, especially during elections, are essential for democratic societies. The Sanchez v France case represents a significant departure from previous judgments, raising concerns about the increased responsibility for online content and its potential consequences. It could lead to prominent social media personalities facing the same obligations as platforms, exposing them to legal risks and limiting democratic discourse. The ruling takes us closer to digital authoritarianism, presenting challenges for the future of online political dialogue.

Gergely Gosztonyi is a habil Associate Professor at Eötvös Loránd University (ELTE), Faculty of Law. His research interests include global regulation of social media, censorship, deepfake, alternative media, and the liability of intermediaries. He has been an expert for the Council of Europe, the National Media and Infocommunications Authority, and the National Talent Centre. He is an editor of several law journals and has published over 150 articles in Hungarian and international law journals.

Gergely Ferenc Lendvai is a PhD candidate at Pázmány Péter Catholic University, Faculty of Law. He earned his JD at Eötvös Loránd University of Budapest, Faculty of Law and Master’s degree in Comparative Law at Panthéon-Assas (Paris II) University. His main research areas include online freedom of expression, platform governance, AI and law, online discrimination, and new media phenomena.