DISSENTING OPINION OF JUDGE MOUROU-VIKSTRÖM

I am unable to agree with the majority in finding that there has been no violation of Article 10 of the Convention.

This case has presented us with a novel question: the criminal liability of the holder of a Facebook account in respect of messages posted by third parties on his or her “wall”. Could the applicant, as a mere holder of a Facebook account, be found criminally liable on account of comments written by third parties? To what extent was it possible to convict and sentence him for comments of which he was not the author but which were indeed recognised by the courts as being criminal in nature? The question is all the more sensitive as the person concerned is a politician and the events took place during an election campaign.

On 24 October 2011, the applicant, while mayor of Beaucaire, chair of the Front national group in the Occitanie Regional Council, and candidate in the parliamentary elections, wrote on his Facebook account a message concerning a political opponent, F.P., who was an MEP and deputy to the mayor of Nîmes.

The message, which unquestionably had a critical and ironical connotation, read as follows: “While the FN has launched its new national website on schedule, spare a thought for the Nîmes UMP MEP [F.P.], whose site, which was supposed to be launched today, is displaying an ominous triple zero on its home page ...”. The jibe about the supposed incompetence of F.P. can unambiguously be seen in this text, but it does not as such fall foul of the criminal law.

It is not in dispute that the Facebook account was not administered by anyone except its holder, namely the applicant, or that the account was accessible to the general public and was not reserved merely for the holder’s 1,829 “friends”. Thus the public nature of the account and its open access is established, even though it appears that only the “accepted friends” were able to write comments.

On the same day, 24 October 2011, two messages were posted on the applicant’s Facebook page by S.B. and L.R.

L.T., who was F.P.’s partner, filed a criminal complaint against S.B., L.R. and the applicant, taking the view that the messages were “racist” and (with specific regard to the message posted by S.B.) associated her forename, as it sounded North African, with her partner and with his municipal policy which, according to her, was presented in such a way as to arouse a feeling of rejection vis-à-vis Muslims.

The authors of these messages, together with the applicant in his capacity as holder of the Facebook account, were convicted with final effect by the domestic criminal courts, following a public prosecution, and fined (the applicant was ordered to pay EUR 4,000, reduced to EUR 3,000 on appeal). In addition L.T., as civil party in the criminal case, was awarded the sum of EUR 1,000 euros, to be paid by the applicant and S.B.

The legal texts on the basis of which the applicant was convicted are section 23 first paragraph, section 24 eighth paragraph and section 65-3 of the Law of 29 July 1881, together with section 93-3 of Law no. 82-652 of 29 July 1982, providing for the offence of incitement to hatred or violence against a person or group on account of their origin or the fact of belonging or not belonging to a specific ethnicity, nation, race or religion.

The Nîmes Criminal Court and the Nîmes Court of Appeal both took the view, with reference to section 93-3 of the Law of 29 July 1982, that the applicant, even though he was not the actual author of the offending messages, had to be found liable since he had chosen to make his “wall” public and had thereby made it available for his friends to post messages that were visible to all.

Following a confrontation with L.T., S.B. deleted the impugned message on 25 October 2011, the day after its publication on the applicant’s “wall”.

The message by L.R. was, for its part, still visible on 6 December 2011, about six weeks after its publication. However, the applicant claimed, without there being any proof or even any allegations to the contrary, that he had not become aware of the impugned message by L.R. until a few days before he was summoned by the investigators, who interviewed him on 28 January 2012. Public access was removed three days before he was due to attend the police interview, which would seem to corroborate the idea that his knowledge of the impugned remarks did indeed coincide with the police summons. His reaction in removing public access was thus prompt at that point.

In this opinion I will not be analysing the merits of the conviction of the two main authors of the messages, S.B. and L.R., but will argue that the conviction of the Facebook account holder, who was found to incur specific liability, is incompatible with the requirements of Article 10 of the Convention.

In my view it is important to dissociate the facts of the present case from the position of principle as to the applicant’s liability. For even though a case is to be adjudicated in concreto , its scope is not limited to a case-specific solution as it has much broader significance.

The application of this “projected” or “derived” liability of the Facebook account holder is, to my mind, capable of breaching the right to free expression of commentators and account holders, especially in the case of public figures or politicians who have a large number of “friends”.

It should be noted that in the case of Delfi AS v. Estonia ([GC], no. 64569/09, ECHR 2015) the Court did make a clear distinction between:

- the “Delfi” website, which it defined as “a large professionally managed Internet news portal run on a commercial basis which published news articles of its own and invited its readers to comment on them”, and

- other types of online fora where third-party comments can be disseminated, for example an Internet discussion forum or a bulletin board where users can freely set out their ideas on any topic without the discussion being channelled by any input from the forum’s administrator; or a social media platform where the platform provider does not offer content and where the content provider may be a private person running the website or blog as a hobby (ibid., §§ 115-16).

With reference therefore to the Delfi case-law, it is clear that the present applicant’s Facebook account would fall within the second category. At the very least, the reasons why the Chamber judgment departs from the framework set out in Delfi should have been explained by the majority here. The same liability cannot be attributed to the holder of a Facebook account as to a news portal, which invites its readers to make comments that are accessible to the general public and incidentally have commercial repercussions for the website. Delfi was an active host whose polemical vocation was well known; thus its awareness of the messages posted on its site were to be “presumed”. Such a set-up cannot reasonably be transposed to the user of a Facebook account, otherwise, as the dissenting judges in Delfi emphasised, it would be an “invitation to self-censorship at its worst”.

Moreover, the decisions of the domestic courts, supported by the finding of no violation reached by the majority in the present judgment, are not in line with the statutory prescriptions, as interpreted by the Constitutional Council, setting an important and clear reservation as to the criminal liability of the holder of a website that is open for comment.

It should be pointed out that the liability of the producer of an electronic public communication service may only be established if he or she was aware of the messages before they were posted or otherwise if he or she has failed to act promptly to remove them upon becoming aware of them.

In the present case only the comment by L.R. should raise an issue, since that of S.B. was spontaneously deleted by him within twenty-four hours. Can the holder of a Facebook account be expected to react within a few hours after the posting of a message by a third party? The applicant could not reasonably have been required to have deleted S.B.’s message within a twenty-four hour period, otherwise the obligation to react would be excessive and impracticable.

Moreover, as to the message posted by L.R., is it possible to prove that the applicant was aware of it? To establish criminal liability, any knowledge he may have had of L.R.’s message cannot be a matter of speculation or even presumption: it requires evidence. The domestic courts, however, failed to demonstrate the existence of such knowledge, preferring to base their reasoning on a general obligation to monitor comments, particularly relying on the applicant’s status as a politician.

While it is true that on 27 October, two days after L.R.’s comment, the applicant invited his “friends”, in a message on his Facebook “wall”, to be careful with the content of their “comments”, there is nothing to suggest that he was aware of the impugned comment by L.R. He might well have been referring implicitly, when making this appeal for vigilance, to the other message that S.B. had posted and promptly deleted.

Bearing in mind that knowledge is one of the basic elements for the purpose of establishing the criminal liability of the account holder, it must be demonstrated in compliance with the rules of criminal law which – it goes without saying – have to be interpreted strictly.

Therefore, only an unequivocal message by an individual feeling offended by the comments – or simply condemning them for falling within the scope of the law on incitement to hatred – would have been such as to prove that the applicant had been aware of the impugned comments.

But no such message exists. It is not in dispute that L.T. did not seek to warn the applicant about the content of L.R.’s message, or even that of S.B.’s message.

The domestic courts based their decisions to convict the applicant on the following findings:

- The fact that the applicant, as a politician, could not have been unaware that his account would generate and encourage messages that would be in essence political and therefore polemical. (In this connection it is noteworthy that the message that the applicant himself had initially published was admittedly critical of and mocked his political opponent, but it had not been directed against any part of the population, and still less incited hatred against anyone.)

- The liability of the applicant, who had taken the initiative of setting up an electronic public communication platform and had failed to delete with sufficient rapidity the comments posted by certain “friends” that he had accepted on Facebook.

It should be noted straight away that the fact that S.B. informed the applicant of his discussion with L.T. and of the subsequent withdrawal of his message is not such as to place on the applicant a duty of heightened vigilance, extending to a presumption that he was aware of the other comments posted on his “wall”.

It is important to dissociate this case from the context and even the content of the impugned remarks, in order to focus solely on the criminal liability of the Facebook account holder where he or she is, like the applicant, a public figure. The finding of no violation of Article 10 of the Convention places a very heavy burden on the account holder in terms of monitoring posts, since he or she would otherwise face criminal prosecution. There is a risk that such a fear will cause the account holder to systematically vet and even to censor certain comments posted on his or her “wall”. In case of doubt as to the legal consequence of a comment posted by someone else, the account holder will of course be more inclined to delete or report a message by way of precaution. The chilling effect is self-evident, thus entailing a serious threat to freedom of expression.