Hateful comments online: ECHR ruling tackles the liability of Facebook account holders

posted on 22 September, 2021   (public)

Facebook users can be held liable for third parties hateful comments in specific circumstances


On 2 September 2021, the European Court of Human Rights confirmed that the conviction of a politician for failing to promptly delete unlawful comments published by third parties on the public wall of his Facebook account did not breach freedom of expression

1. The facts & issues at stake:

in October 2011, a public figure, the elected mayor and member of a political party, was held by French Courts responsible for incitement to hatred or violence against a group of people on the grounds of their membership of a specific religion, based on comments posted by third parties on his public profile's Facebook wall.

The politician contested the unlawfulness of the comments and denied his responsibility: as a "producer" of an online communication site and not the direct author of the comments, (who were identified and convicted as well) he claimed that French Courts have put a special responsibility on him in breach of his right to freedom of expression – Article 10 of the European Convention of Human Rights.

2. The ECHR judgment:

The Court recalls that tolerance and respect for the equal dignity of all human beings constituted the foundations of a democratic and pluralistic society. As a result, "it could therefore be considered necessary to punish or even prevent all forms of expression which spread, incited, promoted or justified hatred based on intolerance, provided that any “formalities”, “conditions”, “restrictions” or “penalties” "imposed were proportionate to the legitimate aim pursued".

The Court also points out the particular responsibility of politicians in combating hate speech, as emphasised by the Committee of Ministers of the Council of Europe in Recommendation R(97)20 on “hate speech” and by the European Commission against Racism and Intolerance.

 In this case, the Court confirmed the clear unlawfulness of the comments at stake which are likely to generate rejection or hostility towards the group of people of Muslim faith (associating them with "drug dealers and prostitutes", who "reign supreme" and throw "stones at white people's cars").

With regards to the applicant's responsibility, the Court relied on several factors to back the domestic Courts' ruling:

  • The applicant has voluntary made his profile public and open to comments;
  • As a politician, and especially when it comes to local political debates, the applicant should be alert to the defence of democracy and its principles and more vigilant to the comments that his statements are likely to attract;
  • The unlawful comments were still visible online six weeks after their publication;
  • The applicant was held responsible on the grounds of his lack of vigilance and reaction by not promptly deleting the comments, regardless of the conviction of the authors of the comments.

The Court thus considered that the French Courts' decision had been based on relevant and sufficient reasons and the interference could be seen as “necessary in a democratic society”. Hence there had been no violation of Article 10 of the Convention.

While underlining the specific political profile of the applicant, this judgment points out an increasing obligation of control imposed to the account holder ("producer") of an online communication site. 

The applicant already announced its intention to lodge an appeal against this decision.