Speech that Isn’t Mine: Obligations Under the European Court of Human Rights

Abstract

In 2023, the Grand Chamber of the European Court of Human Rights issued its ruling in the case of Sanchez v France. The case revolved around the conviction of the applicant, a politician, for inciting hatred or violence against people due to their religious affiliation. What makes this case unique among hate speech cases before the Strasbourg Court was that the applicant’s conviction did not stem from his own words but rather from his alleged failure to promptly remove commends made by others under one of his (non-offensive) Facebook posts. This case has prompted a myriad of significant questions, the main one being, how an earth did we reach a point where imposing a criminal penalty on an internet user for someone else’s speech and how does such a penalty align with the principles of necessity and proportionality outlined in Article 10 of the European Convention on Human Rights (freedom of expression)? This paper aims to address this question by examining the Court’s approach to hate speech, particularly in the realm of politics, how to the Court situates politicians within the scope of Article 10 and how the gradual expansion of ‘duties and responsibilities’ incorporated in Article 10 to engulf those who are not the actual speakers (namely internet intermediaries and, with Sanchez individual politicians). It concludes that Sanchez constitutes a worrying term for the very worst of hate speech and free speech jurisprudence as individuals (at the moment just politicians) have a duty to be vigilant of what others say on the former’s social media pages. If they are not, criminal penalties are deemed to be justified and legitimate by Strasbourg.