Image Description: On a brick wall, the phrase ‘Free Speech’ is being written by a person, using spray paint. Below this phrase, the words ‘*Conditions apply’ has been written.
On 17.1.22, the ECtHR accepted that Sanchez – one of two freedom-of-expression cases against France decided by the Fifth Section on 2.9.21 – should be referred to the GC. Sanchez was probably the least popular applicant (Article 19 intervened in the other case only). While running for parliament with the Rassemblement national (RN – president Marine Le Pen), he teased, on his public FB account, a political adversary. Although the message was inoffensive, Sanchez was given a 3,000-euro fine for incitement to hatred (or violence) because he had failed, for about six weeks, to delete, inter alia, a reply posted by a ‘friend’, assimilating “les musulmans” to drug dealers. For the Section, the reply clearly broke the law; although its author had been identified and fined, politicians were also expected to play their part in the fight against hate speech (as per ECRI and CERD). Sanchez had not and this, together with the national margin of appreciation, led the Section to conclude (by six votes to one) that his Article 10 rights had not been violated.
The Section was right in stressing the need to combat this kind of speech, in which many followers of parties like RN engage. However, the causal link between Sanchez’s message and his friend’s hateful reply was very tenuous. It is, moreover, a chimera to believe that RN politicians can be made to react to intolerant remarks in an exemplary fashion. One is, therefore, tempted to think that punishing Sanchez (in addition to the comment’s author) was a substitute for holding FB accountable, which is however indispensable if the fight against hate speech is to be given a chance of succeeding. (See ECRI’s GPR No. 15, §7; although the Section took note of FB’s efforts to combat on-line hatred, these have been subjected to withering criticism and its policy is being reviewed.)
As for Sanchez’s conviction, one should not accept additional restrictions to freedom of expression too readily; in this sense, it might be fortunate that the ECtHR has the chance to reconsider his case. For the same reason, it might be a pity that Z.B., the applicant of the second case decided on 2.9.21, did not ask for referral. Z.B. had encouraged his nephew to wear, at kindergarten, under his jumper, a T-shirt bearing the boy’s name (Jihad, which is quite common among Muslims), his date of birth (11/9) and the words “je suis une bombe” (which also translate as “I’m a cutie”). Z.B. and the boy’s mother (not an applicant) were given suspended prison sentences and fines (two months and 4,000 euros for Z.B.) for glorifying a certain type of crime. The Section, unanimously, found no violation of Article 10, relying again on the national margin of appreciation. Interestingly, it considered that the T-shirt made no contribution to the public debate. However, the anti-racist message was clearly there: ‘I happen to have been born on 11/9 and to be called Jihad, but why are you afraid of me? I’m just a cute Muslim boy.’ Although this aspect was not pleaded by applicant’s counsel, nothing prevented the Section from taking it into account proprio motu. Moreover, even assuming that the message was not innocent, the T-shirt had only been seen by two persons who had helped the boy go to the loo (cf. Grigoriades). And ECRI’s GPR No. 15 (mutatis mutandis) calls for a graduated response, starting, inter alia, with “encourag(ing) perpetrators to renounce and repudiate the use of” ‘dangerous speech’.
Without wishing to exaggerate the relevance of the vulnerability discourse, it might be interesting to speculate on why Sanchez felt empowered to ask for referral while Z.B. did not. In any event, the two cases should be discussed together (and it is unfortunate that they won’t be at GC level), as they raise huge questions about the right reaction to (potentially) ‘dangerous speech’. How does one apportion responsibility for hateful messages in a manner that encourages big social-media players to tackle them effectively? And how does one incite pupils and their families to try to resolve misunderstandings and differences via dialogue before resorting to more drastic measures, especially if one continues to believe this to be one of the goals of education in a democratic society?