In Sanchez v. France, (ECHR, May 15, 2023), the European Court of Human Rights by a vote of 13-4 in a Grand Chamber judgment upheld France's conviction of a candidate for election to Parliament who was convicted of inciting violence against Muslims when he failed to promptly remove anti-Muslim postings by third parties placed on his Facebook page. The authors of the comments were convicted as accomplices. The majority concluded that the conviction did not violate Article 10, §1 of the European Convention on Human Rights since that section permits an interference with free expression when "necessary in a democratic society." The majority said in part:
148. While political speech calls for an elevated level of protection, the freedom of political debate is not absolute in nature....
149. Since tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society, it follows that, in principle, it may be considered necessary in certain democratic societies to penalise or even prevent all forms of expression that propagate, encourage, promote or justify hatred based on intolerance (including religious intolerance), provided that any “formalities”, “conditions”, “restrictions” or “penalties” imposed are proportionate to the legitimate aim pursued....
176. ... [I]n an election context, the impact of racist and xenophobic discourse becomes greater and more harmful.... That is particularly true in the present circumstances where the political and social climate was troubled, especially at the local level with “clear tensions within the population, which were evident in particular from the comments at issue, but also between the protagonists”....
209. ... [T]he Court finds that the decisions of the domestic courts were based on relevant and sufficient reasons, both as to the liability attributed to the applicant, in his capacity as a politician, for the unlawful comments posted in the run-up to an election on his Facebook “wall” by third parties, who themselves were identified and prosecuted as accomplices, and as to his criminal conviction. The impugned interference can therefore be considered to have been “necessary in a democratic society”.
The Court also posted a Legal Summary of the decision.
