The Pursuit of Online Regulation at the Price of Article 10 Corrosion: A Case Note on Sanchez v France

• Date: 01 January 2023
• Author: Kiri O'Neill

163

e Pursuit of Online Regulation at the Price

ofArticle 10 Corrosion: A Case Note on

Sanchezv France

(2 September 2021, Fih Section ECtHR,

Application No 45581/15; Armed 15 May 2021,

Grand Chamber ECtHR)

KIRI O’NEILL

Introduction

On 15 May 2023, the Grand Chamber of the European Court of Human Rights

(ECtHR) published its Sanchez v France judgement.1 is anxiously-awaited

appeal armed a September 2021 decision of the Fih Section ECtHR.2 e

application was made by a French politician pertaining to a conviction he received

under French law holding him liable for unlawful comments published on his

Facebook wall by other users. His application was unsuccessful and the conviction

was held not to violate Article 10 of the European Convention on Human Rights

(ECHR).

Sanchez prompts two provocative questions. What type of statement constitutes

unlawful hate speech? And should social media account holders be liable for the

unlawful hate speech of third parties on their pages? In her dissenting opinion,

Judge Mourou-Vikström of the Fih Section noted that the latter is a novel

question.3 e former, however, is not. Hate speech has been the subject of countless

cases before the ECtHR. In these cases, the Court must engage in a balancing act

between the protection of free speech – a cornerstone of democracy – and the

censure of hateful rhetoric to protect other rights and interests. e ECtHR has

developed a nuanced and robust body of case law in this respect.4 However, the

online aspect of modern hate speech has posed diculties – these cases oen

cannot be shoehorned into the existing law. e judgment of the Fih Section in

Sanchez v France was viewed by many commentators as an ill-balanced analysis and

thus a severe dilution of the right to freedom of expression. Its endorsement by the

Grand Chamber was therefore somewhat surprising. is case note will provide a

synopsis of Sanchez v France and a discussion of its implications.

1 Sanchez v France App No 45581/15 (ECtHR, 15 May 2023) (Sanchez (Grand Chamber)).

2 Sanchez v France App No 45581/15 (ECtHR, 2 September 2021) (Sanchez (Fih Section)).

3 ibid 34 (Mourou-Vikström J, dissenting).

4 See for example David Harris and others, Law of the European Convention on Human Rights (4th

edn, Oxford University Press 2018) 682.