CEDH · CASELAW;JUDGMENTS;GRANDCHAMBER;ENG — 15 mai 2023

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text-align:justify } .s7C9EDFAD { margin-top:14pt; margin-left:34pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s68520B7C { width:6.99pt; text-indent:0pt; display:inline-block } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify }   GRAND CHAMBER CASE OF SANCHEZ v. FRANCE (Application no. 45581/15)   JUDGMENT   Art 10 • Freedom of expression • Elected politician fined in criminal proceedings for failing to delete, from his publicly accessible Facebook “wall” used for his election campaign, Islamophobic comments by third parties also convicted • Foreseeability of law • Duties and responsibilities of politicians using social networks for political and election-related purposes • Accentuated impact of hate speech causing greater harm in election period marked by tensions • Need for shared liability between all actors involved • Desirable implementation of minimum degree of moderation or prior filtering by host or account holder to identify and remove unlawful remarks within a reasonable time, even in absence of notification by injured party • Deliberate choice of applicant, experienced in public communication and having knowledge of digital platforms, to allow public access to account • Failure to act despite being informed of impugned comments • No question of account with potentially excessive traffic • Proportionality analysis by Court depending on level of responsibility of person concerned and degree of notoriety and representativeness • Proportionate criminal sentence   STRASBOURG 15 May 2023   This judgment is final but it may be subject to editorial revision. TABLE OF CONTENTS PROCEDURE INTRODUCTION THE FACTS THE CIRCUMSTANCES OF THE CASE RELEVANT LEGAL FRAMEWORK AND PRACTICE I.   DOMESTIC LAW A.   Freedom of the Press Act (Law of 29 July 1881) B.   Audiovisual Communication Act (Law no. 82-652 of 29 July 1982) C.   The legal regime applicable to the “producer” 1.   The concept of “producer” 2.   Establishing the liability of the “producer” D.   Other relevant domestic law material 1.   Case-law of the Court of Cassation 2.   Legislation subsequent to circumstances of present case II.   INTERNATIONAL MATERIAL A.   Communication on the Internet 1.   Council of Europe 2.   Other international sources B.   Hate speech 1.   Council of Europe (a)   Committee of Ministers of the Council of Europe (b)   Parliamentary Assembly of the Council of Europe (PACE) (c)   European Commission against Racism and Intolerance (ECRI) (d)   Special Representative of the Secretary General on antisemitic, anti‑Muslim and other forms of religious intolerance and hate crimes 2.   United Nations (a)   Human Rights Council (b)   Committee on the Elimination of Racial Discrimination C.   European Union law and case-law of the Court of Justice of the European Union (CJEU) D.   Comparative law material III.   TERMS OF USE OF SOCIAL NETWORK FACEBOOK THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION A.   The Chamber judgment B.   The parties’ submissions 1.   The applicant 2.   The Government 3.   Observations of third-party interveners (a)   The Government of Slovakia (b)   The Government of the Czech Republic (c)   Media Defence and the Electronic Frontier Foundation (d)   European Information Society Institute (EISi) C.   The Court’s assessment 1.   Whether there has been an interference 2.   Whether the interference was lawful (a)   General principles (b)   Application of those principles to the present case 3.   Whether the interference pursued a legitimate aim 4.   Whether the interference was necessary in a democratic society (a)   General principles (b)   Application of those principles to the present case (c)   Conclusion OPERATIVE PROVISION CONCURRING OPINION OF JUDGE KŪRIS DISSENTING OPINION OF JUDGE RAVARANI DISSENTING OPINION OF JUDGE BOŠNJAK JOINT DISSENTING OPINION OF JUDGES WOJTYCZEK AND   ZÜND In the case of Sanchez v. France, The European Court of Human Rights, sitting as a Grand Chamber composed of:   Georges Ravarani, President   Marko Bošnjak,   Gabriele Kucsko-Stadlmayer,   Krzysztof Wojtyczek,   Faris Vehabović,   Egidijus Kūris,   Branko Lubarda,   Armen Harutyunyan,   Georgios A. Serghides,   Lətif Hüseynov,   María Elósegui,   Gilberto Felici,   Erik Wennerström,   Saadet Yüksel,   Ana Maria Guerra Martins,   Mattias Guyomar,   Andreas Zünd , judges , and Marialena Tsirli, Registrar, Having deliberated in private on 29 June 2022 and 8 February 2023, Delivers the following judgment, which was adopted on the latter date: PROCEDURE 1.     The case originated in an application (no. 45581/15) against the French Republic lodged with the Court on 15 September 2015 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Mr Julien Sanchez (“the applicant”). 2.     The applicant was represented by Mr D. Dassa-Le Deist, a lawyer practising in Paris. The French Government (“the Government”) were represented by Mr F. Alabrune and later by Mr D. Colas, Director of Legal Affairs at the Ministry of European and Foreign Affairs. 3.     The applicant contended that there had been a violation of Article 10 of the Convention, on account of his criminal conviction for the offence of incitement to hatred or violence against a group or an individual on grounds of religion, following his failure to take prompt action to delete comments posted by third parties on the “wall” of his Facebook account. 4.     The application was allocated to the Fifth Section of the Court (Rule   52   § 1 of the Rules of Court). On 9 January 2018 notice of the complaint under Article 10 of the Convention was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule   54   §   3. 5.     On 2 September 2021 a Chamber of that Section composed of Síofra O’Leary, President, Mārtiņš Mits, Ganna Yudkivska, Stéphanie Mourou ‑ Vikström, Ivana Jelić, Arnfinn Bårdsen, Mattias Guyomar, judges, and Victor Soloveytchik, Section Registrar, delivered its judgment. It declared, unanimously, the application admissible and found, by six votes to one, that there had been no violation of Article 10 of the Convention. 6.     On 29 November 2021 the applicant sought the referral of the case to the Grand Chamber and on 17 January 2022 the panel of the Grand Chamber accepted that request. 7.     The composition of the Grand Chamber was then decided in accordance with Article 26 §§ 4 and 5 of the Convention and Rule   24. 8.     Both the applicant and the Government submitted written observations on the merits of the case (Rule 59 §   1). 9.     Observations were also received from the Slovak and Czech Governments, Media Defence, the Electronic Frontier Foundation and the European Information Society Institute, having been granted leave by the President of the Grand Chamber to submit written comments (Article 36 §   2 of the Convention and Rules 71 § 1 and 44 § 3). 10     A hearing took place in public in the Human Rights Building, Strasbourg, on 29 June 2022. There appeared before the Court: (a)     for the Government Mr T. Stehelin,   co-Agent ;   Mr B. Chamouard,   co-Agent ;   Mr J.-B. Desprez,   Ms M. Blanchard,   Ms P. Reparaz,   Ms A. Roux,   Advisers . (b)     for the applicant Mr D. Dassa-Le-Deist,   Mr S. Josserand,   Counsel.   The Court heard addresses by Mr Stehelin, Mr Dassa-Le Deist and Mr   Josserand, and also their replies to questions from judges. INTRODUCTION 11.     The application concerns, with regard to Article 10 of the Convention, the criminal conviction of the applicant, at the time a local councillor who was standing for election to Parliament, for the offence of incitement to hatred or violence against a group or an individual on grounds of religion, following his failure to take prompt action to delete comments posted by third parties on the “wall” of his Facebook account. THE FACTS the circumstances of the case 12.     The applicant was born in 1983 and lives in Beaucaire. 13 .     He has been the mayor of Beaucaire since 2014 and chairs the group of the Rassemblement national (a political party known as Front national (FN) until 2018) in the Regional Council of Occitanie. The website of Beaucaire town hall contains a page presenting the applicant on which it is also stated that in his “professional life” he was responsible for the “FN’s Internet strategy ... for 7 years”. At the time of the events at issue he was the Front national candidate for the Nîmes constituency in the French parliamentary elections. F.P., then a member of the European Parliament (MEP) and first deputy to the mayor of Nîmes, was one of his political opponents. 14 .     On 24 October 2011 the applicant wrote a post about F.P. on the publicly accessible “wall” of his Facebook account, which was administered by him personally, reading as follows (translation): “While the FN has launched its new national website on schedule, spare a thought for the Nîmes UMP [Union for a Popular Movement] MEP [F.P.], whose site, which was supposed to be launched today, is displaying an ominous triple zero on its homepage ...” 15 .     Fifteen or so comments by third parties appeared in response to that post. Among them was that of S.B., who reacted on the same day by posting the following remarks on the applicant’s Facebook “wall” (translation): “This BIGWIG has turned NIMES into ALGIERS, there’s not a street without a KEBAB SHOP and MOSQUE; DRUG DEALERS AND PROSTITUTES REIGN SUPREME, NO SURPRISE HE’S CHOSEN BRUSSELS CAPITAL OF THE NEW WORLD ORDER OF SHARIA... CHEERS UMPS [amalgam of UMP and PS, Socialist Party], AT LEAST WE DON’T HAVE TO PAY FOR THE FLIGHTS AND HOTEL... JUST LOVE this free version of CLUB MED... Thanks FRANCK and KISSES TO LEILLA... AT LAST, A BLOG THAT CHANGES OUR LIFE ...” ( sic ) 16 .     Another reader, L.R., added the following three comments (translation): “Shisha bars all over the town centre and veiled women... Look what’s become of nimes, the so-called roman city... The UMP and the PS are allies of the muslims.” ( sic ) “Drug trafficking run by the muslims rue des lombards, it’s been going on for years... even with CCTV in the street... more drug dealing in plain sight on avenue general leclerc where riffraff sell drugs all day long but police never come and even outside schools, stones get thrown at cars belonging to ‘white people’ route d’arles at the lights all the time ... nimes, insecurity capital of languedoc roussillon.” ( sic ) “ prout , councillor for economic devellopment lol hallal economic devellopment boulevard gambetta and (islamic) republic street.” ( sic ) 17 .     On the morning of 25 October 2011, F.P.’s partner Leila T. (who had apparently been designated by the forename “Leilla” in the comment by S.B. – see paragraph 15 above) became aware of the comments. Feeling directly and personally insulted by remarks that she described as “racist”, associating her forename, which “sounded North African”, with the policy of her partner, she immediately went to the hairdressing salon run by S.B., whom she knew personally. S.B., who had been unaware that the applicant’s Facebook “wall” was public, deleted his comment just after Leila T. left, as he subsequently confirmed when he was interviewed by the gendarmes. 18.     On 26 October 2011 Leila T. wrote to the Nîmes public prosecutor to lodge a criminal complaint against the applicant, together with S.B. and L.R., on account of the offending comments published on the applicant’s Facebook “wall”. With her letter she attached screen shots as evidence of the comments. 19 .     On 27 October 2011 the applicant posted a message on the “wall” of his Facebook account asking contributors to “be careful with the content of [their] comments”, but without moderating the comments already posted. 20.     Leila T. was interviewed by gendarmes on 6 December 2011. She stated that she had discovered the comments on the morning of 25 October 2011 when she was in the office of her partner F.P., MEP and first deputy to the mayor of Nîmes. She explained that their relationship was public knowledge and that the comments on the applicant’s publicly accessible Facebook “wall”, interspersed with racist remarks, associated her North African ‑ sounding forename with the name of her partner and his policies. After she had discovered the comments she had immediately gone to the hairdressing salon run by S.B. to express her indignation. According to her, S.B. had been very surprised and had clearly not been aware of the public nature of this Facebook “wall”, but he had confirmed he was talking about her when he wrote “Thanks Franck and kisses to Leilla”. She added that she had then been accompanied to the town hall by the Prefect’s wife, who was just passing by and who had seen how annoyed she was. On the way there she had logged onto Facebook again to find that S.B.’s comment had already been removed. An investigation into the applicant’s Facebook account revealed, on the same day, that the applicant’s original post and the comments by L.R. were still visible, while those posted by S.B. had indeed disappeared. 21 .     For his part, L.R. was identified by the gendarmes during their investigation as being an employee of the Nîmes municipality. When interviewed by the gendarmes on 23 January 2012 he stated that he had been working as an assistant in the applicant’s election campaign and denied that his comments had been racist or had incited racial hatred. Explaining that he had never intended to target Leila T. with his remarks, he said that in the meantime he had deleted the comments in which F.P. could have recognised himself or have been recognised by others. 22 .     During his interview on 25 January 2012, S.B. told the gendarmes that he had been unaware that the applicant’s Facebook “wall” was publicly accessible and had deleted his comment immediately after Leila T. had confronted him at his hairdressing salon. He added that he had informed the applicant later that day of his altercation with her. 23 .     On 28 January 2012 the applicant himself was also interviewed by the investigators. Recalling that he had previously been a candidate in Nîmes, standing against F.P., Leila T.’s partner, he explained that he had been unable to monitor the large number of comments posted every week on the “wall” of his Facebook account. He indicated in particular: that he had not been the author of the impugned comments; that S.B.’s comment had been deleted by its author before he had had the time to do so; that he had only become aware of L.R.’s comments when he was summoned to the gendarmerie, and was prepared to delete them if the courts so requested; that he consulted his Facebook “wall” every day, but did not often read the comments, which were too numerous given that he had more than 1,800 “friends” who could post comments twenty-four hours a day, and that he preferred to post content to inform his readers; that Leila T. had not been mentioned by name and he had discovered her forename only when she had filed a complaint; that Leila T. had once personally taken him to task at a polling station; that she should have telephoned him to ask him to delete the comments, which would have “spared her the trouble” of filing a criminal complaint, but that her aim had clearly been to destabilise his candidature, as he was standing against her partner; that instead, Leila T. had gone to the hairdressing salon of S.B., whom she knew, to insult and threaten him in front of witnesses; lastly, that he knew L.R. and S.B., who were activists in his party but not office holders. Referring to his own foreign origins, he added that he had never displayed any racism or discrimination against anyone, and that he did not perceive any call to murder or violence in the impugned remarks, which in his view remained within the limits of any citizen’s freedom of expression. He emphasised that he had removed public access to his Facebook “wall” a few days before this interview, in order to limit access only to those who chose to be his friends and to avoid any further incidents that were not of his making. After the interview, the investigators were able to confirm that the applicant’s Facebook “wall” was indeed no longer accessible to the public. 24 .     The applicant, together with S.B. and L.R., were summoned to appear before Nîmes Criminal Court in connection with the posting of the comments in question on the “wall” of his Facebook account, to answer charges of incitement to hatred or violence against a group, and targeting in particular Leila T., on account of their origin or of their belonging, or not belonging, to a specific ethnicity, nation, race or religion. The summons referred to section   23, first paragraph, section 24, eighth paragraph, and section 65-3 of the Law of 29   July 1881, and section 93-3 of Law no. 82-652 of 29 July 1982. 25 .     In a judgment of 28 February 2013 the Nîmes Criminal Court found the applicant, S.B. and L.R. guilty as charged and ordered each of them to pay a fine of 4,000 euros (EUR).   The applicant was convicted under section   23, first paragraph, and section 24, eighth paragraph, of the Law of 29   July 1881, and section 93-3 of Law no. 82-652 of 29 July 1982. S.B. and the applicant were also ordered jointly to pay EUR 1,000 to Leila T., as civil party, in compensation for the non-pecuniary damage she had sustained. However, the court did not see fit to impose the sanction of electoral disqualification that had been called for by the prosecution. 26 .     In its judgment, the court began by finding as follows: “The remarks in question perfectly defined the group concerned, as can already be seen from the expressions: ‘The UMP and the PS are allies of the muslims’ and ‘Drug trafficking run by the muslims’, while associating the terms ‘Kebab’, ‘Mosque’, ‘Sharia’, ‘Shisha bars’, and ‘hallal economic devellopment’, complete the characterisation of the targeted group, as seen by the writers. To equate, in the same exchange, the members of the relevant group, i.e. ‘Muslims’, expressly with ‘drug dealers and prostitutes ( sic )’ who ‘reign supreme ( sic )’, ‘riffraff who sell drugs all day long’ or those responsible for the ‘stones [that] get thrown at cars belonging to white people’, was clearly likely, on account of both the meaning and scope of the words, to arouse a strong feeling of rejection or hostility towards a group of people, namely those of the Muslim faith, or presumed to be of that faith.” 27.     The court further took the view that Leila T. could be regarded as having been provoked by the impugned comments, in view of the references to her partner, who was mentioned several times in the exchange, including in the quip “Thanks Franck and kisses to Leilla ( sic )”, with the effect of portraying them both as being responsible for the alleged transformation of “Nimes into Algiers” and of arousing hatred or violence against them. 28 .     As regards the applicant, the court observed that it could be inferred from section 93-3 of Law no. 82-652 of 29 July 1982, as interpreted by the Constitutional Council in its decision of 16 September 2011, that the criminal liability of the producer of a website intended for communication to the general public, including access to comments posted by its users, would only be engaged in respect of such comments where it could be established that the producer had been aware of their content before they were posted, or otherwise where he or she had failed to act promptly to delete the comments at issue upon becoming aware of them. It dismissed the applicant’s argument that he had not had time to read the comments and that he had not been aware of those posted by S.B. and L.R., on the grounds that: first, comments could only be posted on his “wall” once he had given access to his “friends”, of which there were 1,829 at 25 October 2011, and he was responsible for verifying the content of the comments; second, he must have been aware that his “wall” was likely to attract comments with a political, and thus essentially polemical, content, and should have been all the more careful to monitor them. The court concluded that, having set up an electronic service for communication to the public on his own initiative, for the purpose of exchanging views, and having left the offending comments online – still being visible on 6 December 2011 according to the investigators – the applicant had failed to act promptly to put an end to their dissemination. It inferred that the applicant had to be “declared guilty as principal”. It found S.B. and L.R. guilty as accomplices in the offence committed by the applicant, explaining that their status in the proceedings had been debated at the hearing. 29.     The applicant and S.B. appealed. The latter subsequently withdrew his appeal. 30 .     In a judgment of 18 October 2013 the Nîmes Court of Appeal upheld the convictions, while reducing the applicant’s fine to EUR 3,000. It further ordered him to pay Leila T. EUR 1,000 in costs for the appeal proceedings. 31.     In its reasoning the Court of Appeal held that the Criminal Court had been correct in finding that the comments had perfectly defined the group concerned, namely Muslims, and that to associate the Muslim community with crime and insecurity in the town of Nîmes was likely to arouse a strong feeling of rejection or hostility towards that group. Noting that the legislation relied upon by the prosecution concerned discrimination against a person or group, it found as follows: “... The legislative provision on which the charges are based refers to discrimination against a person or group. The expression ‘kisses to Leilla’, referring to [L.T.], and her connection with [F.P.], deputy mayor of Nîmes, who is described in the texts as having contributed to an abandonment of the town of Nîmes to the Muslims and thus to insecurity, is such as to associate her with the transformation of the town and thus to arouse hatred or violence against her; on the basis of these elements, the two texts in question constitute incitement to hatred or violence against a person, namely [F.P.]’s partner [L.T.], on account of a presumption, in view of her forename, that she belonged to a Muslim community.   The offence provided for in section 24, eighth paragraph, of the Law of 29 July 1881 is thus made out ...” 32.     Referring further to the provisions of section 93-3 of Law no.   82-652 of 29 July 1982 and to the facts of the case, the Court of Appeal ruled as follows: “It is established and not in dispute that these two texts were published on the public ‘wall’ of [the applicant’s] Facebook account, by two of his friends, [S.B.] and [L.R.], on 24   October 2011. Section 93-3 of the Law of 29 July 1982, amended by the Law of 21   June 2004, provides that the criminal liability of the producer of a website intended for communication to the public, giving access to comments posted by users, will only be engaged, in respect of such comments, where it can be established that the producer had had knowledge of their content before they were posted, or otherwise where he or she failed to act promptly to delete the comments at issue upon becoming aware of them. In the present case, there is no evidence in the record that the applicant had been informed of the content of the comments before they were posted. However, [the applicant], as an elected member of the Front National and a public figure, had knowingly made his Facebook ‘wall’ public and had therefore authorised his friends to post comments on it. By thus acting, out of choice, he became responsible for the content of the comments posted thereon. His status as a politician required him to be all the more vigilant. He cannot claim not to have been aware of the remarks posted on his website on 24   October, especially as he stated during the investigation that he consulted it every day. He did not, however, remove the remarks, which were subsequently deleted by [S.B.] himself. Alerted by the latter to the reaction of the civil party, he did not delete [L.R.’s] comment either, and it was still visible on his website when consulted by the investigators on 6   December 2011. He cannot be regarded, as the court below rightly found, as having promptly put an end to the dissemination of the impugned comments. He legitimised his position by explaining that such comments appeared to him to be compatible with freedom of expression. The fact they were left on his ‘wall’ was therefore deliberate on his part. In the light of the foregoing, the court below was justified in finding the defendant guilty as charged and the judgment is upheld in respect of his guilt ... ” 33.     The applicant appealed on points of law to the Court of Cassation, relying in particular on Article 10 of the Convention. In a single ground of appeal, he argued: that, for the offence to be made out, the comments had to contain encouragement or incitement to discrimination, hatred or violence, and not merely give rise to a strong feeling of rejection or hostility towards a group or person; that the mere fear of a risk of racism could not deprive citizens of the freedom to express their views on the consequences of immigration in certain towns or neighbourhoods, the comments having specifically deplored the transformation of the town of Nîmes by immigrants of North African origin and of the Muslim faith; that the summons to appear before the court had been unlawful; and, lastly, that the impugned remarks had in no way targeted Leila T. personally and had been distorted in the Court of Appeal’s judgment. 34.     In a judgment of 17 March 2015 the Court of Cassation dismissed his appeal on points of law, in particular with regard to Article 10 of the Convention, with the following reasoning: “... first, the offence of incitement ... is made out where, as in the present case, the court finds that, by both their meaning and their scope, the impugned texts may arouse a feeling of rejection or hostility, hatred or violence, towards a group or an individual on account of a particular religion; ... second, since the above-mentioned text falls foul of the restrictions provided for in paragraph 2 of Article 10 of the European Convention on Human Rights, the principle of freedom of expression enshrined in paragraph 1 of that Article cannot be relied upon; ...” RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW Freedom of the Press Act (Law of 29 July 1881) 35 .     The relevant provisions, in the version of the Act that was applicable at the time of the acts for which the applicant was prosecuted, read as follows: Section 23 “Anyone who, by uttering speeches, cries or threats in a public place or assembly, or by means of a written or printed text, drawing, engraving, painting, emblem, image, or any other written, spoken or pictorial item sold or distributed, offered for sale or exhibited in a public place or assembly, or by means of a placard or notice exhibited in a place where it can be seen by the public, or by any electronic means of communication to the public, has directly incited a perpetrator or perpetrators to commit a serious crime ( crime ) or other major offence ( délit ), and if the incitement has been acted upon, shall be punished as an accomplice in the said offence. This provision shall also be applicable where the incitement has been followed only by an attempt to commit a serious crime ( crime ) under Article 2 of the Criminal Code.” Section 24 (eighth and tenth to twelfth paragraphs) “... Anyone who, by one of the means referred to in section 23, has incited discrimination, hatred or violence against a person or group on account of their origin or of their belonging, or not belonging, to a given ethnicity, nation, race or religion, shall be liable to a one-year prison term and a fine of 45,000 euros, or only one of those two sanctions. ... Where a conviction is secured for one of the offences provided for in the two preceding paragraphs, the court may further order: (1)     the deprivation of the rights listed in paragraphs 2 and 3 of Article   131-26 of the Criminal Code for a maximum of five years, save where the offender’s liability is engaged under section 42 and the first paragraph of section 43 hereof, or under the first three paragraphs of section 93-3 of Law no. 82-652 of 29 July 1982 on audiovisual communication; (2)     the display or dissemination of the decision as provided in Article 131-35 of the Criminal Code; ...” Audiovisual Communication Act (Law no. 82-652 of 29 July 1982) 36.     Section 93-3 of Law no. 82-652 of 29 July 1982, inserted by Law no.   85-1317 of 13 December 1985, incorporated the so-called “cascading” liability system, as provided for in section 42 of the Freedom of the Press Act of 29   July 1881, into the field of audiovisual communication and subsequently that of “communication to the public by electronic means”. The section was amended by Law no. 92-1336 of 16 December 1992 concerning the entry into force of the New Criminal Code (inserting a reference to Article 121-7 of the Criminal Code, in the place of Article 60 thereof), by Law no.   2004-575 of 21 June 2004 on the promotion of confidence in the digital economy ( confiance dans l’économie numérique ), known as the “LCEN” Act (substituting the broader concept of “communication to the public by electronic means” for that of “audiovisual communication”) and by Law no.   2009 ‑ 669 of 12 June 2009 on the dissemination and protection of creation on the Internet, known as the “HADOPI I” Act. In the preparation of that 2009 legislation, a fifth paragraph was added to section 93-3, in line with an amendment proposed, first, with a view to “creating the status of online press publisher, accompanied by a tailored liability regime” and, secondly, to “concurrently adapt the regime of editorial liability of online communication services” (National Assembly, Amendment No. 201 Rect.): “The regime of section 93-3 of the Law of 29 July 1982 presumes that the publication director is primarily liable for press offences committed through a publication thereby, via an online service for communication to the public, where the text in question has undergone ‘prior fixing’. This presumption would appear difficult to implement in the case of personal participation formats (discussion fora, blogs), involving contributions from, and the participation of, Internet users. It is therefore proposed that user contributions should give rise to a mitigated liability regime, irrespective of the type of moderation adopted, and that they should not engage the liability of the publication director as principal unless he or she had actual knowledge of the content made available to the public.” 37 .     Section 93-3 of Law no. 82-652 of 29 July 1982, as in force at the material time, read as follows: “Where one of the offences provided for in chapter IV of the Freedom of the Press Act of 29 July 1881 is committed by an electronic means of communication to the public, the publication director or, in the situation provided for in the second paragraph of section 93-2 hereof, the publication codirector, shall be prosecuted as the principal, when the content of the impugned statement has undergone ‘prior fixing’ before being transmitted to the public. If not the above, the author, and failing which the producer, shall be prosecuted as principal. Where charges are brought against the publication director or codirector, the author shall be prosecuted as an accomplice. Any person to whom Article 121-7 of the Criminal Code is applicable may also be prosecuted as an accomplice. Where the offence stems from the content of a message addressed by an Internet user to an online service for communication to the public and made publicly accessible by that service in a forum of personal contributions identified as such, the publication director or codirector may not be held criminally liable as principal if it is established that he or she had no actual knowledge of the message before it was posted on line or if, upon becoming aware thereof, he or she acted promptly to ensure the deletion of the said message.” The legal regime applicable to the “producer” The concept of “producer” 38 .     The Court of Cassation has clarified the concept of “producer”, adopting this characterisation for a person who has taken the initiative of creating an electronic communication service for the exchange of opinions on pre-defined topics (Court of Cassation, Criminal Division, 8 December 1998, published in the reports of judgments of the Criminal Division – “ Bull. crim. ”   ‑ , no.   335; see also the two leading judgments of 16 February 2010: Court of Cassation, Criminal Division, appeal no. 08-86.301, Bull. crim. , no.   30, concerning the liability, as producer, of the managing director of a company operating a website, on account of the dissemination of a number of texts on a discussion forum; and Court of Cassation, Criminal Division, appeal   no.   09 ‑ 81.064, Bull. crim. , no. 31, concerning the liability, as producer, of the chair of an association for the dissemination of contentious statements on its blog). This definition of “producer” was endorsed by the Constitutional Council, which, in a decision of 16 September 2011 (see paragraph 40 below), observed: “It follows from these provisions, as interpreted by the Court of Cassation in its judgments of 16 February 2010 ..., that a person who has taken the initiative of creating an online communication service for the exchange of opinions on pre-defined topics may be prosecuted in his or her capacity as producer.” Establishing the liability of the “producer” 39.     In its two judgments of 16 February 2010, cited above (see paragraph   38 above), the Court of Cassation further confirmed that, under section 93-3 of Law no. 82-652 of 29 July 1982, where an offence enumerated in Chapter IV of the Law of 29 July 1881 was committed by an electronic means of communication to the public, if not the author then the producer of the service would be prosecuted as principal, even if the statement had not undergone “prior fixing” before being transmitted to the public ( Bull. crim. , nos.   30 and 31). In addition, in one of those cases, the Court of Cassation quashed the judgment of a Court of Appeal which had acquitted the administrator of a blog, without ascertaining whether he could be prosecuted as producer, in proceedings concerning a comment posted thereon by a third party, even though that author had been identified (Court of Cassation, Criminal Division, 16 February 2010, appeal no. 09-81.064, Bull. crim. , no.   31, and see also the further judgment in the same case, Court of Cassation, Criminal Division, 30 October 2012, appeal no. 10-88.825, Bull. crim. , no.   233). In his report, the reporting judge at the Court of Cassation, when considering the questions raised in the examination of the first appeal on points of law (no.   09-81.064, giving rise to the judgment of 16   February 2010), expressed the following view on the question of the “autonomy of the proceedings”: “Does this fluidity of roles in the chain of Internet actors permit the public prosecutor or the victim of a press offence to ‘choose’ the person to be prosecuted, out of those listed in section 93-3? Taken literally, section 93-3, like sections 42 and 43 of the 1881 Law, assigns a particular status to each actor (principal, accomplice), following a strict mechanism (‘if not...’ meaning ‘in the absence of...’, ‘failing which ..’, without the reasons for the absence being explained: unidentified person, immunity, deliberate passing-over of the previous level...). But the jurisprudence has long espoused a principle of ‘procedural autonomy’ whereby: ‘No statutory provision on freedom of the press requires proceedings first to be brought against the author of comments before proceedings can be brought against the publication director as principal or, under any status whatsoever, against other persons who may be criminally liable in accordance with sections 42 and 43 of that Law’ (see, for example, Court of Cassation, Criminal Division, 16   July 1992, no. 91-86.156; for other applications: Court of Cassation, Criminal Division, 20 January 1987, 20   October 2005, or Court of Cassation, First Civil Division, 12 July 2006).” 40 .     In addition, a preliminary reference on constitutionality ( question prioritaire de constitutionnalité – QPC ) was made to the Constitutional Council concerning the difference in treatment between, on the one hand, the publication director, the only actor to be mentioned in the last paragraph of section 93-3 inserted by Law no. 2009-669 of 12 June 2009, and on the other, the producer, who was not mentioned in that paragraph. In a decision of 16   September 2011 (no. 2011-164 QPC ), the Constitutional Council declared section 93-3 of Law no. 82-652 of 29 July 1982 on audiovisual communication to be compliant with the Constitution, subject to the following interpretative reservation: “7.     Consequently, taking into account, on the one hand, the specific liability applicable to the publication director under the first and last paragraphs of section 93 ‑ 3 and, on the other, the characteristics of the Internet which, as the relevant rules and techniques now stand, allow the author of a comment disseminated on the Internet to preserve his or her anonymity, the provisions under review cannot, without establishing an irrebuttable presumption of criminal liability in breach of the aforementioned constitutional requirements, be interpreted as allowing the creator or administrator of an online website for communication to the public, rendering comments by Internet users publicly accessible, to be held criminally liable as producer solely on account of the content of comments of which he or she had no knowledge before they were posted online. Subject to that reservation, the provisions under review are not incompatible with Article 9 of the Declaration of 1789.” 41 .     In its case-law , the Criminal Division of the Court of Cassation subsequently drew the appropriate conclusions from the Constitutional Council’s decision of 16 September 2011 (see paragraph 40 above), in a judgment of 31   January 2012 (appeal no.   10-80.010,   Bull. crim. , no.   233; see also, in the same vein, Court of Cassation, Criminal Division, 30   October 2012, appeal no. 10-88.825): “It can be inferred from section 93-3 of the Law of 29 July 1982 as amended, interpreted i