The European Court of Human Rights has ruled that anyone who posts on social media can be found guilty of inciting hatred and violence if they do not delete discriminatory comments made by others on their page.
Thursday’s ruling is the result of a case involving mayor Julien Sanchez of Beaucaire, a town in the south of France, explains De Standaard.
Back in 2011, during an election campaign, Sanchez posted a message on his Facebook page about a political opponent.
A supporter from his party, Rassemblement National (RN, Marine Le Pen's far-right party) responded to the post about the opponent, who was an alderman in the neighbouring town of Nîmes.
“This man has turned Nîmes into Algiers (note: the capital of Algeria),” he wrote among other things, including, “It's no surprise that he chose Brussels, capital of the new sharia world order.”
“There is no street without a kebab shop and a mosque,” he wrote, going on to associate Muslims with “drug dealers and prostitutes who rule here” and people “who throw stones at white people in cars.”
Another user added more negative messages about Muslims.
Then in 2013, after a complaint from the political opponent’s wife, the two commenters and Sanchez himself were convicted of inciting hatred and violence against a group based on ethnicity, race and religion.
Sanchez was considered the operator of an online public communication platform and thus, according to the court, was the main perpetrator.
The judgment was upheld on appeal, after which Sanchez took the case to the European Court of Human Rights.
The highest European human rights watchdog ruled yesterday that his conviction was lawful and not a violation of the right to freedom of expression.
The Court makes its argument based on the fact that Sanchez deliberately left the hateful comments unchanged for six weeks, saying that he had opened his Facebook page to everyone and had therefore ‘taken responsibility for the content of the posted comments.’
The Court also stated that Sanchez, as a politician, bears a greater responsibility than a normal user.
The European judgment has been met with criticism.
“The ever more far-reaching restriction of our freedom leads to legal absurdities,” tweeted N-VA president Bart De Wever.
Volgens het EHRM kan iemand voortaan veroordeeld worden voor het onvoldoende snel verwijderen van "haatreacties" van derden(!) op zijn of haar Facebookpagina. De steeds verregaandere inperking van onze vrijheid leidt tot juridische absurditeiten. #wokewaanzin https://t.co/0OoALLxlEp— Bart De Wever (@Bart_DeWever) September 2, 2021
N-VA parliamentary party leader Peter De Roover said, “That means that I have to play judge for all the reactions under my posts. That is definitely unpleasant.”
He tweeted to call the judgement an “alarming evolution,” saying that “freedom of expression is further threatened by this judgement.”
Onwaarschijnlijk verregaand arrest #EHRM. Politicus moet zelf ingrijpen op commentaren facebook-post. Veroordeling niet-verwijderen voor EHRM geen schending art10 #EVRM. Vrijheid meningsuiting komt door uitspraak verder onder druk. Alarmerende evolutie. https://t.co/w05WlBijjK pic.twitter.com/rAAsdrh1MZ— Peter De Roover (@PeterDeRoover1) September 2, 2021
But the criticism isn’t exclusively coming from politicians.
“This is a peculiar judgment,” Sofie Royer (KU Leuven), postgraduate researcher in criminal law, told De Standaard.
“The Court traditionally always strongly defends freedom of speech and even more so in a political context. Here, the opposite happens. The Court accepts a far-reaching obligation of supervision for political Facebook users.”
In a previous judgment, the Court already ruled that a news portal can be held responsible if it does not take sufficient measures to remove unlawful reactions under news items, but Royer says this judgment goes further.
“Certain internet players already had more responsibility to limit the spread of hate speech,” Royer said. “Now the Court seems to extend that to politicians.”
The ruling was for a French case, but now there are questions as to whether such convictions are possible in other EU countries.
In Belgium, inciting hatred, discrimination or violence is punishable under current legislation, but requires ‘special intent.’
“It is rather unlikely that someone is found guilty merely because he does not remove messages,” said Royer.
The law in Belgium also says that in the case of news outlets or press, the author of hateful, discriminatory or violent posts must first be held responsible for the illegal content, and only if that is not possible should the publisher or platform be held responsible.
The bar is set slightly lower for another, similar crime: whoever ‘knowingly and willingly’ belongs to or cooperates with a group that openly proclaims discrimination is also punishable.
In 2017, the correctional court in Antwerp convicted an administrator of a page that contained racist comments.
But that administrator also posted racist comments himself and liked hateful reactions.
“I am not willing to bet that a court will never rule in a similar way when the French situation occurs,” said Royer.
In May, the court in Mechelen ruled that the slogan ‘Stop islamisation’ incited hatred.
The De Croo government wants to be able to punish broader hate speech offences better, but bringing them before a criminal court would require an amendment to the constitution, which currently has too little political support.
The Brussels Times