Readings materials | Denmark’s independent judicial think tank Extreme speech in European human rights law: How Europe regulates hate speech, blasphemy and terrorist content
Extreme speech in European human rights law: How Europe regulates hate speech, blasphemy and terrorist content
European Legal standards
The Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights)
Justitia Lautrupsgade 13, 2. Sal 2100 København Ø 23926100 [email protected] 1
EU Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law 6.12.2008 EN Official Journal of the European Union L 328/55
III (Acts adopted under the EU Treaty)
ACTS ADOPTED UNDER TITLE VI OF THE EU TREATY
COUNCIL FRAMEWORK DECISION 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law
THE COUNCIL OF THE EUROPEAN UNION, (3) Council Joint Action 96/443/JHA of 15 July 1996 concerning action to combat racism and xenophobia (4) should be followed by further legislative action addressing the need for further approximation of law Having regard to the Treaty on European Union, and in and regulations of Member States and for overcoming particular Articles 29, 31 and 34(2)(b) thereof, obstacles for efficient judicial cooperation which are mainly based on the divergence of legal approaches in the Member States. Having regard to the proposal from the Commission,
Having regard to the Opinion of the European Parliament (1), (4) According to the evaluation of Joint Action 96/443/JHA and work carried out in other international fora, such as the Council of Europe, some difficulties have still been Whereas: experienced regarding judicial cooperation and therefore there is a need for further approximation of Member States’ criminal laws in order to ensure the effective im (1) Racism and xenophobia are direct violations of the prin plementation of comprehensive and clear legislation to ciples of liberty, democracy, respect for human rights and combat racism and xenophobia. fundamental freedoms and the rule of law, principles upon which the European Union is founded and which are common to the Member States.
(5) Racism and xenophobia constitute a threat against groups of persons which are the target of such (2) The Action Plan of the Council and the Commission on behaviour. It is necessary to define a common criminal- how best to implement the provisions of the Treaty of law approach in the European Union to this Amsterdam on an area of freedom, security and 2 phenomenon in order to ensure that the same justice ( ), the Conclusions of the Tampere European behaviour constitutes an offence in all Member States Council of 15 and 16 October 1999, the Resolution of and that effective, proportionate and dissuasive the European Parliament of 20 September 2000 on the ’ penalties are provided for natural and legal persons European Union s position at the World Conference having committed or being liable for such offences. Against Racism and the current situation in the Union (3) and the Communication from the Commission to the Council and the European Parliament on the biannual update of the Scoreboard to review progress on the creation of an area of ‘freedom, security and justice’ in the European Union (second half of 2000) (6) Member States acknowledge that combating racism and call for action in this field. In the Hague Programme of xenophobia requires various kinds of measures in a 4 and 5 November 2004, the Council recalls its firm comprehensive framework and may not be limited to commitment to oppose any form of racism, anti- criminal matters. This Framework Decision is limited to combating particularly serious forms of racism and xeno Semitism and xenophobia as already expressed by the phobia by means of criminal law. Since the Member European Council in December 2003. States’ cultural and legal traditions are, to some extent, different, particularly in this field, full harmonisation of 1 ( ) Opinion of 29 November 2007 (not yet published in the Official criminal laws is currently not possible. Journal). (2) OJ C 19, 23.1.1999, p. 1. (3) OJ C 146, 17.5.2001, p. 110. (4) OJ L 185, 24.7.1996, p. 5. L 328/56EN Official Journal of the European Union 6.12.2008
(7) In this Framework Decision ‘descent’ should be Treaty on European Union and by the European understood as referring mainly to persons or groups of Convention for the Protection of Human Rights and persons who descend from persons who could be identi Fundamental Freedoms, in particular Articles 10 and fied by certain characteristics (such as race or colour), but 11 thereof, and reflected in the Charter of Fundamental not necessarily all of these characteristics still exist. In Rights of the European Union, and notably Chapters II spite of that, because of their descent, such persons or and VI thereof. groups of persons may be subject to hatred or violence.
(15) Considerations relating to freedom of association and freedom of expression, in particular freedom of the (8) ‘Religion’ should be understood as broadly referring to press and freedom of expression in other media have persons defined by reference to their religious led in many Member States to procedural guarantees convictions or beliefs. and to special rules in national law as to the determination or limitation of liability.
(9) ‘Hatred’ should be understood as referring to hatred based on race, colour, religion, descent or national or (16) Joint Action 96/443/JHA should be repealed since, with ethnic origin. the entry into force of the Treaty of Amsterdam, Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective 1 (10) This Framework Decision does not prevent a Member of racial or ethnic origin ( ) and this Framework Decision, State from adopting provisions in national law which it becomes obsolete, extend Article 1(1)(c) and (d) to crimes directed against a group of persons defined by other criteria than race, colour, religion, descent or national or ethnic origin, such HAS ADOPTED THIS FRAMEWORK DECISION: as social status or political convictions. Article 1
(11) It should be ensured that investigations and prosecutions Offences concerning racism and xenophobia of offences involving racism and xenophobia are not 1. Each Member State shall take the measures necessary to dependent on reports or accusations made by victims, ensure that the following intentional conduct is punishable: who are often particularly vulnerable and reluctant to initiate legal proceedings. (a) publicly inciting to violence or hatred directed against a group of persons or a member of such a group defined (12) Approximation of criminal law should lead to combating by reference to race, colour, religion, descent or national racist and xenophobic offences more effectively, by or ethnic origin; promoting a full and effective judicial cooperation between Member States. The difficulties which may exist in this field should be taken into account by the (b) the commission of an act referred to in point (a) by public Council when reviewing this Framework Decision with a dissemination or distribution of tracts, pictures or other view to considering whether further steps in this area are material; necessary. (c) publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as (13) Since the objective of this Framework Decision, namely defined in Articles 6, 7 and 8 of the Statute of the Inter ensuring that racist and xenophobic offences are sanc national Criminal Court, directed against a group of persons tioned in all Member States by at least a minimum level or a member of such a group defined by reference to race, of effective, proportionate and dissuasive criminal colour, religion, descent or national or ethnic origin when penalties, cannot be sufficiently achieved by the the conduct is carried out in a manner likely to incite to Member States individually, since such rules have to be violence or hatred against such a group or a member of common and compatible and since this objective can such a group; therefore be better achieved at the level of the European Union, the Union may adopt measures, in accordance with the principle of subsidiarity as referred (d) publicly condoning, denying or grossly trivialising the to in Article 2 of the Treaty on European Union and as crimes defined in Article 6 of the Charter of the Inter set out in Article 5 of the Treaty establishing the national Military Tribunal appended to the London European Community. In accordance with the principle Agreement of 8 August 1945, directed against a group of of proportionality, as set out in the latter Article, this persons or a member of such a group defined by reference Framework Decision does not go beyond what is to race, colour, religion, descent or national or ethnic origin necessary in order to achieve that objective. when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group. (14) This Framework Decision respects the fundamental rights and observes the principles recognised by Article 6 of the (1) OJ L 180, 19.7.2000, p. 22. 6.12.2008EN Official Journal of the European Union L 328/57
2. For the purpose of paragraph 1, Member States may person, acting either individually or as part of an organ of the choose to punish only conduct which is either carried out in legal person, who has a leading position within the legal person, a manner likely to disturb public order or which is threatening, based on: abusive or insulting. (a) a power of representation of the legal person; 3. For the purpose of paragraph 1, the reference to religion is intended to cover, at least, conduct which is a pretext for (b) an authority to take decisions on behalf of the legal person; directing acts against a group of persons or a member of such a or group defined by reference to race, colour, descent, or national or ethnic origin. (c) an authority to exercise control within the legal person.
4. Any Member State may, on adoption of this Framework 2. Apart from the cases provided for in paragraph 1 of this Decision or later, make a statement that it will make punishable Article, each Member State shall take the necessary measures to the act of denying or grossly trivialising the crimes referred to ensure that a legal person can be held liable where the lack of in paragraph 1(c) and/or (d) only if the crimes referred to in supervision or control by a person referred to in paragraph 1 of these paragraphs have been established by a final decision of a this Article has made possible the commission of the conduct national court of this Member State and/or an international referred to in Articles 1 and 2 for the benefit of that legal court, or by a final decision of an international court only. person by a person under its authority.
Article 2 3. Liability of a legal person under paragraphs 1 and 2 of this Article shall not exclude criminal proceedings against Instigation, aiding and abetting natural persons who are perpetrators or accessories in the 1. Each Member State shall take the measures necessary to conduct referred to in Articles 1 and 2. ensure that instigating the conduct referred to in Article 1(1)(c) and (d) is punishable. 4. ‘Legal person’ means any entity having such status under the applicable national law, with the exception of States or other public bodies in the exercise of State authority and 2. Each Member State shall take the measures necessary to public international organisations. ensure that aiding and abetting in the commission of the conduct referred to in Article 1 is punishable. Article 6
Article 3 Penalties for legal persons 1. Each Member State shall take the necessary measures to Criminal penalties ensure that a legal person held liable pursuant to Article 5(1) is 1. Each Member State shall take the necessary measures to punishable by effective, proportionate and dissuasive penalties, ensure that the conduct referred to in Articles 1 and 2 is which shall include criminal or non-criminal fines and may punishable by effective, proportionate and dissuasive criminal include other penalties, such as: penalties. (a) exclusion from entitlement to public benefits or aid; 2. Each Member State shall take the necessary measures to ensure that the conduct referred to in Article 1 is punishable by (b) temporary or permanent disqualification from the practice criminal penalties of a maximum of at least between 1 and 3 of commercial activities; years of imprisonment. (c) placing under judicial supervision; Article 4 (d) a judicial winding-up order. Racist and xenophobic motivation
For offences other than those referred to in Articles 1 and 2, 2. Member States shall take the necessary measures to ensure Member States shall take the necessary measures to ensure that that a legal person held liable pursuant to Article 5(2) is racist and xenophobic motivation is considered an aggravating punishable by effective, proportionate and dissuasive penalties circumstance, or, alternatively that such motivation may be or measures. taken into consideration by the courts in the determination of the penalties. Article 7
Article 5 Constitutional rules and fundamental principles
Liability of legal persons 1. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and 1. Each Member State shall take the necessary measures to fundamental legal principles, including freedom of expression ensure that a legal person can be held liable for the conduct and association, as enshrined in Article 6 of the Treaty on referred to in Articles 1 and 2, committed for its benefit by any European Union. L 328/58EN Official Journal of the European Union 6.12.2008
2. This Framework Decision shall not have the effect of Article 10 requiring Member States to take measures in contradiction to fundamental principles relating to freedom of association and Implementation and review freedom of expression, in particular freedom of the press and 1. Member States shall take the necessary measures to the freedom of expression in other media as they result from comply with the provisions of this Framework Decision by constitutional traditions or rules governing the rights and 28 November 2010. responsibilities of, and the procedural guarantees for, the press or other media where these rules relate to the determination or limitation of liability. 2. By the same date Member States shall transmit to the General Secretariat of the Council and to the Commission the Article 8 text of the provisions transposing into their national law the obligations imposed on them under this Framework Decision. Initiation of investigation or prosecution On the basis of a report established using this information by the Council and a written report from the Commission, the Each Member State shall take the necessary measures to ensure Council shall, by 28 November 2013, assess the extent to that investigations into or prosecution of the conduct referred which Member States have complied with the provisions of to in Articles 1 and 2 shall not be dependent on a report or an this Framework Decision. accusation made by a victim of the conduct, at least in the most serious cases where the conduct has been committed in its territory. 3. Before 28 November 2013, the Council shall review this Framework Decision. For the preparation of this review, the Article 9 Council shall ask Member States whether they have experienced difficulties in judicial cooperation with regard to the conduct Jurisdiction under Article 1(1). In addition, the Council may request 1. Each Member State shall take the necessary measures to Eurojust to submit a report, on whether differences between establish its jurisdiction with regard to the conduct referred to national legislations have resulted in any problems regarding in Articles 1 and 2 where the conduct has been committed: judicial cooperation between the Member States in this area.
(a) in whole or in part within its territory; Article 11 Repeal of Joint Action 96/443/JHA (b) by one of its nationals; or Joint Action 96/443/JHA is hereby repealed.
(c) for the benefit of a legal person that has its head office in the territory of that Member State. Article 12
Territorial application 2. When establishing jurisdiction in accordance with paragraph 1(a), each Member State shall take the necessary This Framework Decision shall apply to Gibraltar. measures to ensure that its jurisdiction extends to cases where the conduct is committed through an information system and: Article 13
(a) the offender commits the conduct when physically present Entry into force in its territory, whether or not the conduct involves material This Framework Decision shall enter into force on the day of its hosted on an information system in its territory; publication in the Official Journal of the European Union.
(b) the conduct involves material hosted on an information system in its territory, whether or not the offender commits the conduct when physically present in its Done at Brussels, 28 November 2008. territory. For the Council 3. A Member State may decide not to apply, or to apply only The President in specific cases or circumstances, the jurisdiction rule set out in paragraphs 1(b) and (c). M. ALLIOT-MARIE Relevant case law
Factsheet – Hate speech
June 2018 This factsheet does not bind the Court and is not exhaustive
Hate speech
“Freedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 [of the European Convention on Human Rights], it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. This means, amongst other things, that every ‘formality’, ‘condition’, ‘restriction’ or ‘penalty’ imposed in this sphere must be proportionate to the legitimate aim pursued.” (Handyside v. the United Kingdom judgment of 7 December 1976, § 49). “… [T]olerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. That being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance …, provided that any ‘formalities’, ‘conditions’, ‘restrictions’ or ‘penalties’ imposed are proportionate to the legitimate aim pursued.” (Erbakan v. Turkey judgment of 6 July 2006, § 56).
1. When dealing with cases concerning incitement to hatred and freedom of expression, the European Court of Human Rights uses two approaches which are provided for by the European Convention on Human Rights: - the approach of exclusion from the protection of the Convention, provided for by Article 17 (prohibition of abuse of rights)1, where the comments in question amount to hate speech and negate the fundamental values of the Convention; and - the approach of setting restrictions on protection, provided for by Article 10, paragraph 2, of the Convention2 (this approach is adopted where the speech in question, although it is hate speech, is not apt to destroy the fundamental values of the Convention). 2. Internet news portals which, for commercial and professional purposes, provide a platform for user-generated comments assume the “duties and responsibilities” associated with freedom of expression in accordance with Article 10 § 2 of the Convention where users disseminate hate speech or comments amounting to direct incitement to violence.
1 This provision is aimed at preventing persons from inferring from the Convention any right to engage in activities or perform acts aimed at the destruction of any of the rights and freedoms set forth in the Convention. 2 Restrictions deemed necessary in the interests of national security, public safety, the prevention of disorder or crime, the protection of health or morals and the protection of the rights and freedoms of others.
Factsheet – Hate speech
Exclusion from the protection of the Convention
“[T]here is no doubt that any remark directed against the Convention’s underlying values would be removed from the protection of Article 10 [freedom of expression] by Article 17 [prohibition of abuse of rights] (…)” (Seurot v. France, decision on the admissibility of 18 May 2004)
Ethnic hate Pavel Ivanov v. Russia 20 February 2007 (decision on the admissibility) The applicant, owner and editor of a newspaper, was convicted of public incitement to ethnic, racial and religious hatred through the use of mass-media. He authored and published a series of articles portraying the Jews as the source of evil in Russia, calling for their exclusion from social life. He accused an entire ethnic group of plotting a conspiracy against the Russian people and ascribed Fascist ideology to the Jewish leadership. Both in his publications, and in his oral submissions at the trial, he consistently denied the Jews the right to national dignity, claiming that they did not form a nation. The applicant complained, in particular, that his conviction for incitement to racial hatred had not been justified. The Court declared the application inadmissible (incompatible ratione materiae). It had no doubt as to the markedly anti-Semitic tenor of the applicant’s views and agreed with the assessment made by the domestic courts that through his publications he had sought to incite hatred towards the Jewish people. Such a general, vehement attack on one ethnic group is directed against the Convention’s underlying values, notably tolerance, social peace and non-discrimination. Consequently, by reason of Article 17 (prohibition of abuse of rights) of the Convention, the applicant could not benefit from the protection afforded by Article 10 (freedom of expression) of the Convention. See also: W.P. and Others v. Poland (no. 42264/98), decision on the admissibility of 2 September 2004 (concerning the refusal by the Polish authorities to allow the creation of an association with statutes including anti-Semitic statements – the Court held that the applicants could not benefit from the protection afforded by Article 11 (freedom of assembly and association) of the Convention). Incitement to violence and support for terrorist activity Roj TV A/S v. Denmark 17 April 2018 (decision on the admissibility) This case concerned the applicant company’s conviction for terrorism offences by Danish courts for promoting the Kurdistan Workers’ Party (PKK) through television programmes broadcast between 2006 and 2010. The domestic courts found it established that the PKK could be considered a terrorist organisation within the meaning of the Danish Penal Code and that Roj TV A/S had supported the PKK’s terror operation by broadcasting propaganda. It was fined and its licence was withdrawn. The applicant company complained that its conviction had interfered with its freedom of expression. The Court declared the application inadmissible as being incompatible ratione materiae with the provisions of the Convention. It found in particular that the television station could not benefit from the protection afforded by Article 10 of the Convention as it had tried to employ that right for ends which were contrary to the values of the Convention. That had included incitement to violence and support for terrorist activity, which had been in violation of Article 17 (prohibition of abuse of rights) of the Convention. Thus the complaint by the applicant company did not attract the protection of the right to freedom of expression.
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Factsheet – Hate speech
Negationism and revisionism Garaudy v. France 24 June 2003 (decision on the admissibility) The applicant, the author of a book entitled The Founding Myths of Modern Israel, was convicted of the offences of disputing the existence of crimes against humanity, defamation in public of a group of persons – in this case, the Jewish community – and incitement to racial hatred. He argued that his right to freedom of expression had been infringed. The Court declared the application inadmissible (incompatible ratione materiae). It considered that the content of the applicant’s remarks had amounted to Holocaust denial, and pointed out that denying crimes against humanity was one of the most serious forms of racial defamation of Jews and of incitement to hatred of them. Disputing the existence of clearly established historical events did not constitute scientific or historical research; the real purpose was to rehabilitate the National Socialist regime and accuse the victims themselves of falsifying history. As such acts were manifestly incompatible with the fundamental values which the Convention sought to promote, the Court applied Article 17 (prohibition of abuse of rights) and held that the applicant was not entitled to rely on Article 10 (freedom of expression) of the Convention. See also: Honsik v. Austria, decision of the European Commission of Human Rights3 of 18 October 1995 (concerning a publication denying the committing of genocide in the gas chambers of the concentration camps under National Socialism); Marais v. France, decision of the Commission of 24 June 1996 (concerning an article in a periodical aimed at demonstrating the scientific implausibility of the “alleged gassings”). M’Bala M’Bala v. France 20 October 2015 (decision on the admissibility) This case concerned the conviction of Dieudonné M’Bala M’Bala, a comedian with political activities, for public insults directed at a person or group of persons on account of their origin or of belonging to a given ethnic community, nation, race or religion, specifically in this case persons of Jewish origin or faith. At the end of a show in December 2008 at the “Zénith” in Paris, the applicant invited Robert Faurisson, an academic who has received a number of convictions in France for his negationist and revisionist opinions, mainly his denial of the existence of gas chambers in concentration camps, to join him on stage to receive a “prize for unfrequentability and insolence”. The prize, which took the form of a three-branched candlestick with an apple on each branch, was awarded to him by an actor wearing what was described as a “garment of light” – a pair of striped pyjamas with a stitched-on yellow star bearing the word “Jew” – who thus played the part of a Jewish deportee in a concentration camp. The Court declared the application inadmissible (incompatible ratione materiae), in accordance with Article 35 (admissibility criteria) of the Convention, finding that under Article 17 (prohibition of abuse of rights), the applicant was not entitled to the protection of Article 10 (freedom of expression). The Court considered in particular that during the offending scene the performance could no longer be seen as entertainment but rather resembled a political meeting, which, under the pretext of comedy, promoted negationism through the key position given to Robert Faurisson’s appearance and the degrading portrayal of Jewish deportation victims faced with a man who denied their extermination. In the Court’s view, this was not a performance which, even if satirical or provocative, fell within the protection of Article 10, but was in reality, in the circumstances of the case, a demonstration of hatred and anti-Semitism and support for Holocaust denial. Disguised as an artistic production, it was in fact as dangerous as a head-on and sudden attack, and provided a platform for an ideology which ran counter
3. Together with the European Court of Human Rights and the Committee of Ministers of the Council of Europe, the European Commission of Human Rights, which sat in Strasbourg from July 1954 to October 1999, supervised Contracting States’ compliance with their obligations under the European Convention on Human Rights. The Commission ceased to exist when the Court became permanent on 1st November 1998.
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Factsheet – Hate speech
to the values of the European Convention. The Court thus concluded that the applicant had sought to deflect Article 10 from its real purpose by using his right to freedom of expression for ends which were incompatible with the letter and spirit of the Convention and which, if admitted, would contribute to the destruction of Convention rights and freedoms. Racial hate Glimmerveen and Haqenbeek v. the Netherlands 11 October 1979 (decision of the European Commission of Human Rights4) In this case, the applicants had been convicted for possessing leaflets addressed to “White Dutch people”, which tended to make sure notably that everyone who was not white left the Netherlands. The Commission declared the application inadmissible, finding that Article 17 (prohibition of abuse of rights) of the Convention did not permit the use of Article 10 (freedom of expression) to spread ideas which are racially discriminatory. Religious hate Norwood v. the United Kingdom 16 November 2004 (decision on the admissibility) The applicant had displayed in his window a poster supplied by the British National Party, of which he was a member, representing the Twin Towers in flame. The picture was accompanied by the words “Islam out of Britain – Protect the British People”. As a result, he was convicted of aggravated hostility towards a religious group. The applicant argued, among other things, that his right to freedom of expression had been breached. The Court declared the application inadmissible (incompatible ratione materiae). It found in particular that such a general, vehement attack against a religious group, linking the group as a whole with a grave act of terrorism, was incompatible with the values proclaimed and guaranteed by the Convention, notably tolerance, social peace and non-discrimination. The Court therefore held that the applicant's display of the poster in his window had constituted an act within the meaning of Article 17 (prohibition of abuse of rights) of the Convention, and that the applicant could thus not claim the protection of Article 10 (freedom of expression) of the Convention. Belkacem v. Belgium 27 June 2017 (decision on the admissibility) This case concerned the conviction of the applicant, the leader and spokesperson of the organisation “Sharia4Belgium”, which was dissolved in 2012, for incitement to discrimination, hatred and violence on account of remarks he made in YouTube videos concerning non-Muslim groups and Sharia. The applicant argued that he had never intended to incite others to hatred, violence or discrimination but had simply sought to propagate his ideas and opinions. He maintained that his remarks had merely been a manifestation of his freedom of expression and religion and had not been apt to constitute a threat to public order. The Court declared the application inadmissible (incompatible ratione materiae). It noted in particular that in his remarks the applicant had called on viewers to overpower non-Muslims, teach them a lesson and fight them. The Court considered that the remarks in question had a markedly hateful content and that he applicant, through his recordings, had sought to stir up hatred, discrimination and violence towards all non- Muslims. In the Court’s view, such a general and vehement attack was incompatible with the values of tolerance, social peace and non-discrimination underlying the European Convention on Human Rights. With reference to the applicant’s remarks concerning Sharia, the Court further observed that it had previously ruled that defending Sharia while calling for violence to establish it could be regarded as hate speech, and that each
4. See footnote 3 above.
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Factsheet – Hate speech
Contracting State was entitled to oppose political movements based on religious fundamentalism. In the present case, the Court considered that the applicant had attempted to deflect Article 10 (freedom of expression) of the Convention from its real purpose by using his right to freedom of expression for ends which were manifestly contrary to the spirit of the Convention. Accordingly, the Court held that, in accordance with Article 17 (prohibition of abuse of rights) of the Convention, the applicant could not claim the protection of Article 10. Threat to the democratic order As a rule, the Court will declare inadmissible, on grounds of incompatibility with the values of the Convention, applications which are inspired by totalitarian doctrine or which express ideas that represent a threat to the democratic order and are liable to lead to the restoration of a totalitarian regime. See, among others: Communist Party of Germany v. the Federal Republic of Germany, decision of the European Commission on Human Rights5 of 20 July 1957; B.H, M.W, H.P and G.K. v. Austria (application no. 12774/87), decision of the Commission of 12 October 1989; Nachtmann v. Austria, decision of the Commission of 9 September 1998; Schimanek v. Austria, decision of the Court on the admissibility of 1 February 2000.
Restrictions on the protection afforded by Article 10 (freedom of expression) of the Convention
Under Article 10, paragraph 2, of the Convention, the Court will examine successively if an interference in the freedom of expression exists, if this interference is prescribed by law and pursues one or more legitimate aims, and, finally, if it is necessary in a democratic society to achieve these aims.
Apology of violence and incitement to hostility Sürek (no.1) v. Turkey 8 July 1999 (Grand Chamber) The applicant was the owner of a weekly review which published two readers’ letters vehemently condemning the military actions of the authorities in south-east Turkey and accusing them of brutal suppression of the Kurdish people in their struggle for independence and freedom. The applicant was convicted of “disseminating propaganda against the indivisibility of the State and provoking enmity and hatred among the people”. He complained that his right to freedom of expression had been breached. The Court held that there had been no violation of Article 10 (freedom of expression). It noted that the impugned letters amounted to an appeal to bloody revenge and that one of them had identified persons by name, stirred up hatred for them and exposed them to the possible risk of physical violence. Although the applicant had not personally associated himself with the views contained in the letters, he had nevertheless provided their writers with an outlet for stirring up violence and hatred. The Court considered that, as the owner of the review, he had been vicariously subject to the duties and responsibilities which the review’s editorial and journalistic staff undertook in the collection and dissemination of information to the public, and which assumed even greater importance in situations of conflict and tension. See also, among others: Özgür Gündem v. Turkey, judgment of 16 mars 2000 (conviction of a daily newspaper for the publication of three articles containing passages which advocated intensifying the armed struggle, glorified war and espoused the
5. See footnote 3 above.
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Factsheet – Hate speech
intention to fight to the last drop of blood); Medya FM Reha Radyo ve Iletişim Hizmetleri A. Ş. v. Turkey, decision on the admissibility of 14 November 2006 (one- year suspension of right to broadcast, following repeated radio programmes deemed to be contrary to principles of national unity and territorial integrity and likely to incite violence, hatred and racial discrimination). Gündüz v. Turkey 13 November 2003 (decision on the admissibility) The applicant, the leader of an Islamic sect, had been convicted of incitement to commit an offence and incitement to religious hatred on account of statements reported in the press. He was sentenced to four years and two months’ imprisonment and to a fine. The applicant argued, among other things, that his right to freedom of expression had been breached. The Court declared the application inadmissible (manifestly ill-founded), finding that the severity of the penalty imposed on the applicant could not be regarded as disproportionate to the legitimate aim pursued, namely the prevention of public incitement to commit offences. The Court stressed in particular that statements which may be held to amount to hate speech or to glorification of or incitement to violence, such as those made in the instant case, cannot be regarded as compatible with the notion of tolerance and run counter to the fundamental values of justice and peace set forth in the Preamble to the Convention. Admittedly, the applicant's sentence, which was increased because the offence had been committed by means of mass communication, was severe. The Court considered, however, that provision for deterrent penalties in domestic law may be necessary where conduct reaches the level observed in the instant case and becomes intolerable in that it negates the founding principles of a pluralist democracy. Gündüz v. Turkey 4 December 2003 The applicant was a self-proclaimed member of an Islamist sect. During a televised debate broadcast in the late evening, he spoke very critically of democracy, describing contemporary secular institutions as “impious”, fiercely criticising secular and democratic principles and openly calling for the introduction of Sharia law. He was convicted of openly inciting the population to hatred and hostility on the basis of a distinction founded on membership of a religion or denomination. The applicant alleged a violation of his right to freedom of expression. The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It noted in particular that the applicant, who had represented the extremist ideas of his sect, with which the public was already familiar, had been taking an active part in an animated public discussion. That pluralist debate had sought to present the sect and its unorthodox views, including the notion that democratic values were incompatible with its conception of Islam. The topic had been the subject of widespread debate in the Turkish media and concerned a problem of general interest. The Court considered that the applicant’s remarks could not be regarded as a call to violence or as hate speech based on religious intolerance. The mere fact of defending sharia, without calling for violence to introduce it, could not be regarded as hate speech. Faruk Temel v. Turkey 1 February 2011 The applicant, the chairman of a legal political party, read out a statement to the press at a meeting of the party, in which he criticised the United States’ intervention in Iraq and the solitary confinement of the leader of a terrorist organisation. He also criticised the disappearance of persons taken into police custody. Following his speech the applicant was convicted of disseminating propaganda, on the ground that he had publicly defended the use of violence or other terrorist methods. The applicant contended that his right to freedom of expression had been breached.
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Factsheet – Hate speech
The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It noted in particular that the applicant had been speaking as a political actor and a member of an opposition political party, presenting his party’s views on topical matters of general interest. It took the view that his speech, taken overall, had not incited others to the use of violence, armed resistance or uprising and had not amounted to hate speech. See also, among others: Dicle (no. 2) v. Turkey, judgment of 11 April 2006 (conviction for inciting to hatred and hostility on the basis of a distinction between social classes, races and religions, following the publication of a seminar report); Erdal Taş v. Turkey, judgment of 19 December 2006 (conviction for disseminating propaganda against the indivisibility of the State on account of the publication of a statement by a terrorist organisation, following the publication in a newspaper of an article consisting of analysis of the Kurdish question). Circulating homophobic leaflets Vejdeland and Others v. Sweden 9 February 2012 This case concerned the applicants’ conviction for distributing in an upper secondary school approximately 100 leaflets considered by the courts to be offensive to homosexuals. The applicants had distributed leaflets by an organisation called National Youth, by leaving them in or on the pupils’ lockers. The statements in the leaflets were, in particular, allegations that homosexuality was a “deviant sexual proclivity”, had “a morally destructive effect on the substance of society” and was responsible for the development of HIV and AIDS. The applicants claimed that they had not intended to express contempt for homosexuals as a group and stated that the purpose of their activity had been to start a debate about the lack of objectivity in the education in Swedish schools. The Court found that these statements had constituted serious and prejudicial allegations, even if they had not been a direct call to hateful acts. The Court stressed that discrimination based on sexual orientation was as serious as discrimination based on race, origin or colour. It concluded that there had been no violation of Article 10 (freedom of expression) of the Convention, as the interference with the applicants’ exercise of their right to freedom of expression had reasonably been regarded by the Swedish authorities as necessary in a democratic society for the protection of the reputation and rights of others. Condoning terrorism Leroy v. France 2 October 2008 The applicant, a cartoonist, complained of his conviction for publicly condoning terrorism following the publication in a Basque weekly newspaper on 13 September 2001 of a drawing representing the attack on the twin towers of the World Trade Center with a caption imitating the advertising slogan of a famous brand: “We all dreamt of it... Hamas did it”. He argued that his freedom of expression had been infringed. The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention in respect of the applicant’s conviction for complicity in condoning terrorism. It considered, in particular, that the drawing was not limited to criticism of American imperialism, but supported and glorified the latter’s violent destruction. In this regard, the Court based its finding on the caption which accompanied the drawing, and noted that the applicant had expressed his moral support for those whom he presumed to be the perpetrators of the attacks of 11 September 2001. Through his choice of language, the applicant commented approvingly on the violence perpetrated against thousands of civilians and diminished the dignity of the victims. In addition, it had to be recognised that the drawing had assumed a special significance in the circumstances of
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the case, as the applicant must have realised. Moreover, the impact of such a message in a politically sensitive region, namely the Basque Country, was not to be overlooked; the weekly newspaper’s limited circulation notwithstanding, the Court noted that the drawing’s publication had provoked a certain public reaction, capable of stirring up violence and demonstrating a plausible impact on public order in the region. Consequently, the Court considered that the grounds put forward by the domestic courts in convicting the applicant had been relevant and sufficient and, having regard to the modest nature of the fine imposed on the applicant and the context in which the impugned drawing had been published, it found that the measure imposed on the applicant had not been disproportionate to the legitimate aim pursued. Stomakhin v. Russia 9 May 20186 This case concerned the applicant’s conviction and sentence to five years in jail for newsletter articles he had written on the armed conflict in Chechnya, which the domestic courts said had justified terrorism and violence and incited hatred. He complained about his conviction for views expressed in the newsletters. The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It found in particular that some of the articles had gone beyond the bounds of acceptable criticism and had amounted to calls for violence and the justification of terrorism. Other statements, however, had been within acceptable limits of criticism. Overall, there had not been a pressing social need to interfere with the applicant’s rights by penalising him for some of his comments and the harshness of the penalty had violated his rights. The Court also added that it was vitally important for States to take a cautious approach when determining the scope of crimes of hate speech. It called on them to strictly construe legislation in order to avoid excessive interference under the guise of action against such speech, when what was in question was actually criticism of the authorities or their policies. Condoning war crimes Lehideux and Isorni v. France 23 September 1998 The applicants wrote a text which was published in the daily newspaper Le Monde and which portrayed Marshal Pétain in a favourable light, drawing a veil over his policy of collaboration with the Nazi regime. The text ended with an invitation to write to two associations dedicated to defending Marshal Pétain’s memory, seeking to have his case reopened and to have the judgment of 1945 sentencing him to death and to forfeiture of his civic rights overturned, and to have him rehabilitated. Following a complaint by the National Association of Former Members of the Resistance, the two authors were convicted of publicly defending war crimes and crimes of collaboration with the enemy. They alleged a violation of their right to freedom of expression. The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It considered that the impugned text, although it could be regarded as polemical, could not be said to be negationist since the authors had not been writing in a personal capacity but on behalf of two legally constituted associations, and had praised not so much pro-Nazi policies as a particular individual. Lastly, the Court noted that the events referred to in the text had occurred more than forty years before its publication and that the lapse of time made it inappropriate to deal with such remarks, forty years on, with the same severity as ten or twenty years previously.
6 . This judgment will become final in the circumstances set out in Article 44 § 2 (final judgments) of the European Convention on Human Rights.
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Factsheet – Hate speech
Denigrating national identity Dink v. Turkey 14 September 2010 Firat (Hrank) Dink, a Turkish journalist of Armenian origin, was publication director and editor-in-chief of a bilingual Turkish-Armenian weekly newspaper published in Istanbul. Following the publication in this newspaper of eight articles in which he expressed his views on the identity of Turkish citizens of Armenian origin, he was found guilty in 2006 of “denigrating Turkish identity”. In 2007 he was killed by three bullets to the head as he left the offices of the newspaper. The applicants, his relatives, complained in particular of the guilty verdict against him which, they claimed, had made him a target for extreme nationalist groups. The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that there had been no pressing social need to find Fırat Dink guilty of denigrating “Turkishness”. It observed, in particular, that the series of articles taken overall did not incite others to violence, resistance or revolt. The author had been writing in his capacity as a journalist and editor-in-chief of a Turkish-Armenian newspaper, commenting on issues concerning the Armenian minority in the context of his role as a player on the political scene. He had merely been conveying his ideas and opinions on an issue of public concern in a democratic society. In such societies, the debate surrounding historical events of a particularly serious nature should be able to take place freely, and it was an integral part of freedom of expression to seek historical truth. Finally, the impugned articles had not been gratuitously offensive or insulting, and they had not incited others to disrespect or hatred. Display of a flag with controversial historical connotations Fáber v. Hungary 24 July 2012 The applicant complained that he had been fined for displaying the striped Árpád flag, which had controversial historical connotations, less than 100 metres away from a demonstration against racism and hatred. The Court held that there had been a violation of Article 10 (freedom of expression) read in the light of Article 11 (freedom of assembly and association of the Convention. It accepted that the display of a symbol, which was ubiquitous during the reign of a totalitarian regime in Hungary, might create uneasiness amongst past victims and their relatives who could rightly find such displays disrespectful. It nevertheless found that such sentiments, however understandable, could not alone set the limits of freedom of expression. In addition, the applicant had not behaved in an abusive or threatening manner. In view of his non-violent behaviour, of the distance between him and the demonstrators, and of the absence of any proven risk to public security, the Court found that the Hungarian authorities had not justified prosecuting and fining the applicant for refusing to take down the flag in question. The mere display of that flag did not disturb public order or hamper the demonstrators’ right to assemble, as it had been neither intimidating, nor capable of inciting violence. Incitement to ethnic hatred Balsytė-Lideikienė v. Lithuania 4 November 2008 The applicant owned a publishing company. In March 2001 the Polish courts found that she had breached the Code on Administrative Offences on account of her publishing and distributing the “Lithuanian calendar 2000” which, according to the conclusions of political science experts, promoted ethnic hatred. She was issued with an administrative warning and the unsold copies of the calendar were confiscated. The
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applicant alleged in particular that the confiscation of the calendar and the ban on its further distribution had infringed her right to freedom of expression. The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention. It found, in particular, that the applicant had expressed aggressive nationalism and ethnocentrism and statements inciting hatred against the Poles and the Jews which were capable of giving the Lithuanian authorities cause for serious concern. Having regard to the margin of appreciation left to the Contracting States in such circumstances, the Court found that in the present case the domestic authorities had not overstepped their margin of appreciation when they considered that there was a pressing social need to take measures against the applicant. The Court also noted that even though the confiscation measure imposed on the applicant could be deemed relatively serious, she had not had a fine imposed on her, but only a warning, which was the mildest administrative punishment available. Therefore, the Court found that the interference with the applicant’s right to freedom of expression could reasonably have been considered necessary in a democratic society for the protection of the reputation or rights of others. Incitement to national hatred Hösl-Daum and Others v. Poland 7 October 2014 (decision on the admissibility) The applicants were charged with insulting the Polish nation and inciting national hatred. They alleged a breach of their right to freedom of expression on account of their conviction for putting up posters in the German language describing atrocities committed after the Second World War by the Polish and the Czechs against the Germans. The Court declared the application inadmissible for non-exhaustion of domestic remedies. It found that, by failing to lodge a constitutional complaint against the impugned provisions of the Criminal Code, the applicants had failed to exhaust the remedy provided for by Polish law. Incitement to racial discrimination or hatred Jersild v. Denmark 23 September 1994 The applicant, a journalist, had made a documentary containing extracts from a television interview he had conducted with three members of a group of young people calling themselves the “Greenjackets”, who had made abusive and derogatory remarks about immigrants and ethnic groups in Denmark. The applicant was convicted of aiding and abetting the dissemination of racist remarks. He alleged a breach of his right to freedom of expression. The Court drew a distinction between the members of the “Greenjackets”, who had made openly racist remarks, and the applicant, who had sought to expose, analyse and explain this particular group of youths and to deal with “specific aspects of a matter that already then was of great public concern”. The documentary as a whole had not been aimed at propagating racist views and ideas, but at informing the public about a social issue. Accordingly, the Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. Soulas and Others v. France 10 July 2008 This case concerned criminal proceedings brought against the applicants, following the publication of a book entitled "The colonisation of Europe”, with the subtitle “Truthful remarks about immigration and Islam”. The proceedings resulted in their conviction for inciting hatred and violence against Muslim communities from northern and central Africa. The applicants complained in particular that their freedom of expression had been breached.
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The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention. It noted, in particular, that, when convicting the applicants, the domestic courts had underlined that the terms used in the book were intended to give rise in readers to a feeling of rejection and antagonism, exacerbated by the use of military language, with regard to the communities in question, which were designated as the main enemy, and to lead the book’s readers to share the solution recommended by the author, namely a war of ethnic re-conquest. Holding that the grounds put forward in support of the applicants’ conviction had been sufficient and relevant, it considered that the interference in the latter’s right to freedom of expression had been necessary in a democratic society. Finally, the Court observed that the disputed passages in the book were not sufficiently serious to justify the application of Article 17 (prohibition of abuse of rights) of the Convention in the applicants’ case. Féret v. Belgium 16 July 2009 The applicant was a Belgian member of Parliament and chairman of the political party Front National/Nationaal Front in Belgium. During the election campaign, several types of leaflets were distributed carrying slogans including “Stand up against the Islamification of Belgium”, “Stop the sham integration policy” and “Send non-European job-seekers home”. The applicant was convicted of incitement to racial discrimination. He was sentenced to community service and was disqualified from holding parliamentary office for 10 years. He alleged a violation of his right to freedom of expression. The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention. In its view, the applicant’s comments had clearly been liable to arouse feelings of distrust, rejection or even hatred towards foreigners, especially among less knowledgeable members of the public. His message, conveyed in an electoral context, had carried heightened resonance and clearly amounted to incitement to racial hatred. The applicant’s conviction had been justified in the interests of preventing disorder and protecting the rights of others, namely members of the immigrant community. Le Pen v. France 20 April 2010 (decision on the admissibility) At the time of the facts, the applicant was president of the French “National Front” party. He alleged in particular that his conviction for incitement to discrimination, hatred and violence towards a group of people because of their origin or their membership or non- membership of a specific ethnic group, nation, race or religion, on account of statements he had made about Muslims in France in an interview with Le Monde daily newspaper – he had asserted, among other things, that “the day there are no longer 5 million but 25 million Muslims in France, they will be in charge” – had breached his right to freedom of expression. The Court declared the application inadmissible (manifestly ill-founded). It observed that the applicant’s statements had been made in the context of a general debate on the problems linked to the settlement and integration of immigrants in their host countries. Moreover, the varying scale of the problems concerned, which could sometimes generate misunderstanding and incomprehension, required considerable latitude to be left to the State in assessing the need for interference with a person’s freedom of expression. In this case, however, the applicant’s comments had certainly presented the Muslim community as a whole in a disturbing light likely to give rise to feelings of rejection and hostility. He had set the French on the one hand against a community whose religious convictions were explicitly mentioned and whose rapid growth was presented as an already latent threat to the dignity and security of the French people. The reasons given by the domestic courts for convicting the applicant had thus been relevant and sufficient. Nor had the penalty imposed been disproportionate. The Court therefore found that the interference with the applicant’s enjoyment of his right to freedom of expression had been necessary in a democratic society.
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Factsheet – Hate speech
Perinçek v. Switzerland 15 October 2015 (Grand Chamber) This case concerned the criminal conviction of the applicant, a Turkish politician, for publicly expressing the view, in Switzerland, that the mass deportations and massacres suffered by the Armenians in the Ottoman Empire in 1915 and the following years had not amounted to genocide. The Swiss courts held in particular that his motives appeared to be racist and nationalistic and that his statements did not contribute to the historical debate. The applicant complained that his criminal conviction and punishment had been in breach of his right to freedom of expression. The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. Being aware of the great importance attributed by the Armenian community to the question whether those mass deportations and massacres were to be regarded as genocide, it found that the dignity of the victims and the dignity and identity of modern-day Armenians were protected by Article 8 (right to respect for private life) of the Convention. The Court therefore had to strike a balance between two Convention rights – the right to freedom of expression and the right to respect for private life –, taking into account the specific circumstances of the case and the proportionality between the means used and the aim sought to be achieved. In this case, the Court concluded that it had not been necessary, in a democratic society, to subject the applicant to a criminal penalty in order to protect the rights of the Armenian community at stake in the case. In particular, the Court took into account the following elements: tha applicant’s statements bore on a matter of public interest and did not amount to a call for hatred or intolerance; the context in which they were made had not been marked by heightened tensions or special historical overtones in Switzerland; the statements could not be regarded as affecting the dignity of the members of the Armenian community to the point of requiring a criminal law response in Switzerland; there was no international law obligation for Switzerland to criminalise such statements; the Swiss courts appeared to have censured the applicant simply for voicing an opinion that diverged from the established ones in Switzerland; and the interference with his right to freedom of expression had taken the serious form of a criminal conviction. Incitement to religious intolerance İ.A. v. Turkey (no. 42571/98) 13 September 2005 The applicant, the owner and managing director of a publishing company, published 2,000 copies of a book which addressed theological and philosophical issues in a novelistic style. The Istanbul public prosecutor charged the applicant with insulting “God, the Religion, the Prophet and the Holy Book” through the publication. The court of first instance sentenced the applicant to two years’ imprisonment and payment of a fine, and immediately commuted the prison sentence to a small fine. The applicant appealed to the Court of Cassation, which upheld the judgment. The applicant alleged that his conviction and sentence had infringed his right to freedom of expression. The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention. It reiterated, in particular, that those who chose to exercise the freedom to manifest their religion, irrespective of whether they did so as members of a religious majority or a minority, could not reasonably expect to be exempt from all criticism. They had to tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith. However, the present case concerned not only comments that were disturbing or shocking or a “provocative” opinion but an abusive attack on the Prophet of Islam. Notwithstanding the fact that there was a certain tolerance of criticism of religious doctrine within Turkish society, which was deeply attached to the principle of secularity, believers could legitimately feel that certain passages of the book in question constituted an unwarranted and offensive attack on them. In those circumstances, the Court considered that the measure in question had been intended to provide protection against offensive
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attacks on matters regarded as sacred by Muslims and had therefore met a “pressing social need”. It also took into account the fact that the Turkish courts had not decided to seize the book in question, and consequently held that the insignificant fine imposed had been proportionate to the aims pursued by the measure in question. Erbakan v. Turkey 6 July 2006 The applicant, a politician, was notably Prime Minister of Turkey. At the material time he was chairman of Refah Partisi (the Welfare Party), which was dissolved in 1998 for engaging in activities contrary to the principles of secularism. He complained in particular that his conviction for comments made in a public speech, which had been held to have constituted incitement to hatred and religious intolerance, had infringed his right to freedom of expression. The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It found that such comments – assuming they had in fact been made – by a well-known politician at a public gathering were more indicative of a vision of society structured exclusively around religious values and thus appeared hard to reconcile with the pluralism typifying contemporary societies, where a wide range of different groups were confronted with one another. Pointing out that combating all forms of intolerance was an integral part of human-rights protection, the Court held that it was crucially important that in their speeches politicians should avoid making comments liable to foster intolerance. However, having regard to the fundamental nature of free political debate in a democratic society, the Court concluded that the reasons given to justify the applicant’s prosecution were not sufficient to satisfy it that the interference with the exercise of his right to freedom of expression had been necessary in a democratic society. Insult of State officials Otegi Mondragon v. Spain 15 March 2011 The applicant, the spokesperson for a left-wing Basque separatist parliamentary group, referred at a press conference to the closure of a Basque daily newspaper (on account of its suspected links with ETA) and to the alleged ill-treatment of the persons arrested during the police operation. In his statement he referred to the King of Spain as “the supreme head of the Spanish armed forces, in other words, the person in command of the torturers, who defends torture and imposes his monarchic regime on our people through torture and violence”. The applicant was sentenced to a term of imprisonment for the offence of serious insult against the King. He alleged a breach of his right to freedom of expression. The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the applicant’s conviction and sentence had been disproportionate to the legitimate aim pursued, namely the protection of the King of Spain’s reputation, as guaranteed by the Spanish Constitution. The Court observed in particular that, while it was true that the language used by the applicant could have been considered provocative, it was essential to bear in mind that, even if some of the words used in the applicant’s comments had been hostile in nature, there had been no incitement to violence and they had not amounted to hate speech. Furthermore, these had been oral statements made in the course of a press conference, which meant that the applicant had been unable to reformulate, rephrase or withdraw them before they were made public. Stern Taulats and Roura Capellera v. Spain 13 March 2018 This case concerned the conviction of two Spanish nationals for setting fire to a photograph of the royal couple at a public demonstration held during the King’s official visit to Girona in September 2007. The applicants complained in particular that the
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Factsheet – Hate speech
judgment finding them guilty of insult to the Crown amounted to unjustified interference with their right to freedom of expression. The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It found in particular that the act allegedly committed by the applicants had been part of a political, rather than personal, critique of the institution of monarchy in general, and in particular of the Kingdom of Spain as a nation. It also noted that it was one of those provocative “events” which were increasingly being “staged” to attract media attention and which went no further than the use of a certain permissible degree of provocation in order to transmit a critical message in the framework of freedom of expression. Moreover, the Court was not convinced that the impugned act could reasonably be construed as incitement to hatred or violence. In the present case, incitement to violence could not be deduced from the joint examination of the “props” used for staging the event or from the context in which it had taken place; nor could it be established on the basis of the consequences of the act, which had not led to violent behaviour or disorder. Furthermore, the facts could not be considered as constituting hate speech. Lastly, the Court held that the prison sentence served on the applicants had been neither proportionate to the legitimate aim pursued (protection of the reputation or rights of others) nor necessary in a democratic society.
Hate speech and the Internet
Delfi AS v. Estonia 16 June 2015 (Grand Chamber) This was the first case in which the Court had been called upon to examine a complaint about liability for user-generated comments on an Internet news portal. The applicant company, which runs a news portal run on a commercial basis, complained that it had been held liable by the national courts for the offensive comments posted by its readers below one of its online news articles about a ferry company. At the request of the lawyers of the owner of the ferry company, the applicant company removed the offensive comments about six weeks after their publication. The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention. It first noted the conflicting realities between the benefits of Internet, notably the unprecedented platform it provided for freedom of expression, and its dangers, namely the possibility of hate speech and speech inciting violence being disseminated worldwide in a matter of seconds and sometimes remaining remain persistently available online. The Court further observed that the unlawful nature of the comments in question was obviously based on the fact that the majority of the comments were, viewed on their face, tantamount to an incitement to hatred or to violence against the owner of the ferry company. Consequently, the case concerned the duties and responsibilities of Internet news portals, under Article 10 § 2 of the Convention, which provided on a commercial basis a platform for user-generated comments on previously published content and some users – whether identified or anonymous – engaged in clearly unlawful speech, which infringed the personality rights of others and amounted to hate speech and incitement to violence against them. In cases such as the present one, where third-party user comments are in the form of hate speech and direct threats to the physical integrity of individuals, the Court considered that the rights and interests of others and of society as a whole may entitle Contracting States to impose liability on Internet news portals, without contravening Article 10 of the Convention, if they fail to take measures to remove clearly unlawful comments without delay, even without notice from the alleged victim or from third parties. Based on the concrete assessment of these aspects and taking into account, in particular, the extreme nature of the comments in question, the fact that they had been posted in reaction to an article published by the applicant company on its professionally managed news portal run on a commercial basis, the insufficiency of the measures taken by the applicant company to remove without delay after publication comments amounting to hate speech
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Factsheet – Hate speech
and speech inciting violence and to ensure a realistic prospect of the authors of such comments being held liable, and the moderate sanction (320 euro) imposed on the applicant company, the Court found that the Estonian courts’ finding of liability against the applicant company had been a justified and proportionate restriction on the portal’s freedom of expression. Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary 2 February 2016 This case concerned the liability of a self-regulatory body of Internet content providers and an Internet news portal for vulgar and offensive online comments posted on their websites following the publication of an opinion criticising the misleading business practices of two real estate websites. The applicants complained about the Hungarian courts’ rulings against them, which had effectively obliged them to moderate the contents of comments made by readers on their websites, arguing that that had gone against the essence of free expression on the Internet. The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It reiterated in particular that, although not publishers of comments in the traditional sense, Internet news portals had to, in principle, assume duties and responsibilities. However, the Court considered that the Hungarian courts, when deciding on the notion of liability in the applicants’ case, had not carried out a proper balancing exercise between the competing rights involved, namely between the applicants’ right to freedom of expression and the real estate websites’ right to respect for its commercial reputation. Notably, the Hungarian authorities accepted at face value that the comments had been unlawful as being injurious to the reputation of the real estate websites. It is to be noted that the applicants’ case was different in some aspects from the Delfi AS v. Estonia case (see above) in which the Court had held that a commercially-run Internet news portal had been liable for the offensive online comments of its readers. The applicants’ case was notably devoid of the pivotal elements in the Delfi AS case of hate speech and incitement to violence. Although offensive and vulgar, the comments in the present case had not constituted clearly unlawful speech. Furthermore, while Index is the owner of a large media outlet which must be regarded as having economic interests, Magyar Tartalomszolgáltatók Egyesülete is a non-profit self-regulatory association of Internet service providers, with no known such interests. Pihl v. Sweden 7 February 2017 (decision on the admissibility) The applicant had been the subject of a defamatory online comment, which had been published anonymously on a blog. He made a civil claim against the small non-profit association which ran the blog, claiming that it should be held liable for the third-party comment. The claim was rejected by the Swedish courts and the Chancellor of Justice. The applicant complained to the Court that by failing to hold the association liable, the authorities had failed to protect his reputation and had violated his right to respect for his private life. The Court declared the application inadmissible as being manifestly ill-founded. It noted in particular that, in cases such as this, a balance must be struck between an individual’s right to respect for his private life, and the right to freedom of expression enjoyed by an individual or group running an internet portal. In light of the circumstances of this case, the Court found that national authorities had struck a fair balance when refusing to hold the association liable for the anonymous comment. In particular, this was because: although the comment had been offensive, it had not amounted to hate speech or an incitement to violence; it had been posted on a small blog run by a non-profit association; it had been taken down the day after the applicant had made a complaint; and it had only been on the blog for around nine days. Smajić v. Bosnia and Herzegovina 18 January 2018 (decision on the admissibility) This case concerned the applicant’s conviction for incitement to national, racial and
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Factsheet – Hate speech
religious hatred, discord or intolerance following a number of posts on an Internet forum describing military action which could be undertaken against Serb villages in the Brčko District in the event of another war. The applicant alleged in particular that he had been convicted for expressing his opinion on a matter of public concern. The Court declared the applicant’s complaint under Article 10 (freedom of expression) of the Convention inadmissible as being manifestly ill-founded. It found in particular that the domestic courts had examined the applicant’s case with care, giving sufficient justification for his conviction, namely that he had used highly insulting expressions towards Serbs, thus touching upon the very sensitive matter of ethnic relations in post-conflict Bosnian society. Furthermore, the penalties imposed on him, namely a suspended sentence and a seized computer and laptop, had not been excessive. Therefore, the interference with the applicant’s right to freedom of expression, which had been prescribed by law and had pursued the legitimate aim of protecting the reputation and rights of others, did not disclose any appearance of a violation of Article 10 of the Convention. Nix v. Germany 13 mars 2018 (décision sur la recevabilité) This case concerned the applicant’s conviction for posting picture of a Nazi leader and swastika in a blog. The applicant argued that the domestic courts had failed to take into account that his blog post was intended as a protest against school and employment offices’ discrimination against children from a migrant background. The Court declared the application inadmissible as being manifestly ill-founded. While accepting that the applicant had not intended to spread totalitarian propaganda, to incite violence, or to utter hate speech, and might have thought he was contributing to a debate of public interest, it considered that the domestic courts could not be reproached for concluding that he had used the picture of f the former SS chief Heinrich Himmler with the swastika as an “eye-catching” device, which was one of the things the law penalising the use of symbols of unconstitutional organisations had been intended to prevent (the so-called “communicative taboo”). Domestic case-law was clear that the critical use of such symbols was not enough to exempt someone from criminal liability and that what was required was clear and obvious opposition to Nazi ideology. In the applicant’s case, the Court saw no reason to depart from the domestic courts’ assessment that the applicant had not clearly and obviously rejected Nazi ideology in his blog post. The Court therefore concluded that the domestic authorities had provided relevant and sufficient reasons for interfering with the applicant’s right to freedom of expression and had not gone beyond their room for manoeuvre (“margin of appreciation”) in the case.
Texts and documents
See, among others:
- Recommendation No. R 97(20) of the Committee of Ministers of the Council of Europe to Member States on “hate speech”, 30 October 1997. - General Policy Recommendation No. 7 of the European Commission against Racism and Intolerance (ECRI) on national legislation to combat racism and racial discrimination, 13 December 2002. - Recommendation 1805 (2007) of the Parliamentary Assembly of the Council of Europe on “blasphemy, religious insults and hate speech against persons on grounds of their religion”, 29 June 2007. - Study no. 406/2006 of the Venice Commission, “Report on the relationship between freedom of expression and freedom of religion: the issue of regulation and prosecution of blasphemy, religious insult and incitement to religious hatred”, doc. CDL-AD(2008)026, 23 October 2008.
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- Manual on hate speech, Strasbourg, Council of Europe Publishing, 2009. - Issue discussion paper by the Council of Europe Commissioner for Human Rights on “Ethical journalism and human rights”, doc. CommDH (2011)40, 8 November 2011. - Website of the Conference on “Tackling hate speech: Living together online” organized by the Council of Europe in Budapest in November 2012. - Website of the Conference “The hate factor in political speech – Where do responsibilities lie?” organized by the Council of Europe in Warsaw in September 2013. - Website of the Conference “Freedom of expression: still a precondition for democracy” organized by the Council of Europe in Strasbourg in October 2015. - General Policy Recommendation No. 15 of the European Commission against Racism and Intolerance (ECRI) on combating hate speech, adopted on 8 December 2015.
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17 issued by the Registrar of the Court
ECHR 360 (2018) 25.10.2018
Conviction for calling Muhammad a paedophile is not in breach of Article 10
In today’s Chamber judgment1 in the case of E.S. v. Austria (application no. 38450/12) the European Court of Human Rights held, unanimously, that there had been: no violation of Article 10 (freedom of expression) of the European Convention on Human Rights. The case concerned the applicant’s conviction for disparaging religious doctrines; she had made statements suggesting that Muhammad had had paedophilic tendencies. The Court found in particular that the domestic courts comprehensively assessed the wider context of the applicant’s statements and carefully balanced her right to freedom of expression with the right of others to have their religious feelings protected, and served the legitimate aim of preserving religious peace in Austria. It held that by considering the impugned statements as going beyond the permissible limits of an objective debate, and by classifying them as an abusive attack on the Prophet of Islam which could stir up prejudice and threaten religious peace, the domestic courts put forward relevant and sufficient reasons.
Principal facts The applicant, E.S., is an Austrian national who was born in 1971 and lives in Vienna (Austria). In October and November 2009, Mrs S. held two seminars entitled “Basic Information on Islam”, in which she discussed the marriage between the Prophet Muhammad and a six-year old girl, Aisha, which allegedly was consummated when she was nine. Inter alia, the applicant stated that Muhammad “liked to do it with children” and “... A 56-year-old and a six-year-old? ... What do we call it, if it is not paedophilia?”. On 15 February 2011 the Vienna Regional Criminal Court found that these statements implied that Muhammad had had paedophilic tendencies, and convicted Mrs S. for disparaging religious doctrines. She was ordered to pay a fine of 480 euros and the costs of the proceedings. Mrs S. appealed but the Vienna Court of Appeal upheld the decision in December 2011, confirming in essence the lower court’s findings. A request for the renewal of the proceedings was dismissed by the Supreme Court on 11 December 2013.
Complaints, procedure and composition of the Court Relying on Article 10 (freedom of expression), Mrs S. complained that the domestic courts failed to address the substance of the impugned statements in the light of her right to freedom of expression. If they had done so, they would not have qualified them as mere value judgments but as value judgments based on facts. Furthermore, her criticism of Islam occurred in the framework of an objective and lively discussion which contributed to a public debate, and had not been aimed at
1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution. defaming the Prophet of Islam. Lastly, Mrs S. submitted that religious groups had to tolerate even severe criticism.
The application was lodged with the European Court of Human Rights on 6 June 2012. Judgment was given by a Chamber of seven judges, composed as follows: Angelika Nußberger (Germany), President, André Potocki (France), Síofra O’Leary (Ireland), Mārtiņš Mits (Latvia), Gabriele Kucsko-Stadlmayer (Austria), Lәtif Hüseynov (Azerbaijan), Lado Chanturia (Georgia), and also Claudia Westerdiek, Section Registrar.
Decision of the Court Article 10 The Court noted that those who choose to exercise the freedom to manifest their religion under Article 9 of the Convention could not expect to be exempt from criticism. They must tolerate and accept the denial by others of their religious beliefs. Only where expressions under Article 10 went beyond the limits of a critical denial, and certainly where they were likely to incite religious intolerance, might a State legitimately consider them to be incompatible with respect for the freedom of thought, conscience and religion and take proportionate restrictive measures. The Court observed also that the subject matter of the instant case was of a particularly sensitive nature, and that the (potential) effects of the impugned statements, to a certain degree, depended on the situation in the respective country where the statements were made, at the time and in the context they were made. Accordingly, it considered that the domestic authorities had a wide margin of appreciation in the instant case, as they were in a better position to evaluate which statements were likely to disturb the religious peace in their country. The Court reiterated that it has distinguished in its case-law between statements of fact and value judgments. It emphasised that the truth of value judgments was not susceptible to proof. However, a value judgment without any factual basis to support it might be excessive. The Court noted that the domestic courts comprehensively explained why they considered that the applicant’s statements had been capable of arousing justified indignation; specifically, they had not been made in an objective manner contributing to a debate of public interest (e.g. on child marriage), but could only be understood as having been aimed at demonstrating that Muhammad was not worthy of worship. It agreed with the domestic courts that Mrs S. must have been aware that her statements were partly based on untrue facts and apt to arouse indignation in others. The national courts found that Mrs S. had subjectively labelled Muhammad with paedophilia as his general sexual preference, and that she failed to neutrally inform her audience of the historical background, which consequently did not allow for a serious debate on that issue. Hence, the Court saw no reason to depart from the domestic courts’ qualification of the impugned statements as value judgments which they had based on a detailed analysis of the statements made. The Court found in conclusion that in the instant case the domestic courts carefully balanced the applicant’s right to freedom of expression with the rights of others to have their religious feelings protected, and to have religious peace preserved in Austrian society.
2 The Court held further that even in a lively discussion it was not compatible with Article 10 of the Convention to pack incriminating statements into the wrapping of an otherwise acceptable expression of opinion and claim that this rendered passable those statements exceeding the permissible limits of freedom of expression. Lastly, since Mrs S. was ordered to pay a moderate fine and that fine was on the lower end of the statutory range of punishment, the criminal sanction could not to be considered as disproportionate. Under these circumstances, and given the fact that Mrs S. made several incriminating statements, the Court considered that the Austrian courts did not overstep their wide margin of appreciation in the instant case when convicting Mrs S. of disparaging religious doctrines. Overall, there had been no violation of Article 10.
The judgment is available only in English.
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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.
3 Further reading: https://www.echr.coe.int/LibraryDocs/DG2/HRFILES/DG2-EN-HRFILES-18(2007).pdf Additional reading materials
In 2014, Russian blogger Vladimir Luzgin posted an update on VKontakte, a social media network popular in Russia. The update included this seemingly benign paragraph:
“The Communists and Germany jointly invaded Poland, sparking off World War II. That is, communism and Nazism closely collaborated.”
One hardly has to be a history buff to know that Luzgin’s post was, essentially, factually correct. On Aug. 23, 1939, Nazi Germany and the Soviet Union entered into the Molotov-Ribbentrop Pact, which divided a number of countries — including Poland — into German and Soviet spheres of influence. On Sept. 1, 1939, Germany invaded Poland; sixteen days later, Soviet troops followed suit.
But although Luzgin’s update might have had its facts right, in the eyes of Russian authorities it represented an inconvenient truth, one that complicates the otherwise heroic story of the millions of Russians who fought and died against Adolf Hitler and fascism in the “Great Patriotic War” that Vladimir Putin likes to use for propaganda purposes today. And so, this June, Luzgin was convicted and fined 200,000 rubles under Russia’s recent law against “Nazi rehabilitation,” which prohibits the “public denial of the Nuremberg trials and circulation of false information about the activities of the USSR during the years of World War II.” On Sept. 1 — the anniversary of the German invasion of Poland — Russia’s Supreme Court upheld the conviction.
The Russian law that was applied in this case was originally adopted in 2014 and has consistently been the subject of international criticism, especially from European media and institutions such as the Organization for Security and Cooperation in Europe. Yet Europe’s critics tend to skirt their own inconvenient truth: Such “memory laws” — laws that criminalize deviations from official historical accounts — were pioneered by European democracies and the EU. And they have provided impetus and legitimacy to the mushrooming of similar laws, applied to much more nefarious agendas, in places like Russia, Ukraine, Rwanda, and Bangladesh.
It is, of course, the Holocaust that has been the driver of European memory laws. Most of the laws on the continent prohibit the denial, justification, or trivialization of the crimes committed by the Nazis during World War II, the mass murder of Jews chief among them. According to University of Amsterdam legal scholar Uladzislau Belavusau, “the monumental legal prescription of historical truth has fulfilled a remarkable role in the project of Europe’s unification, with both [the EU and the Council of Europe] building their foundational discourse on the urge to avoid the misfortunes of World War II through European integration and acknowledgement of foundational atrocities.”
France has had a ban on Holocaust denial in place since 1990. Austria’s ban was adopted in 1992, and Belgium’s is from 1995. Germany itself did not adopt an explicit ban until 1994, though it countered Holocaust denial before then through laws against defamation, incitement, and disparaging the memory of the dead. The European Union also took steps in this direction through a joint actionadopted in 1996, which obliged member states to take steps toward criminalizing the “public denial” of the crimes that formed part of the Nuremberg trials. Holocaust denial laws were also approved in the 1990s by the European Court of Human Rights (under the Council of Europe), which stated that the negation or revision of “clearly established historical facts — such as the Holocaust — … would be removed from the protection” of free speech under the European Convention on Human Rights. The joint action was given more bite in 2008 with the adoption of a much more detailed framework decision on combating racism and xenophobia.
Given its unprecedented scale, there are compelling reasons for affording the Holocaust a special place in European history, memory, and politics. “Never again” is a fitting raison d’être for the institutions that underpin modern Europe. But it is not clear that “never again” should be accomplished through limiting freedom of expression.
It is also clear that these memory laws have been fraught with unanticipated consequences, both in and outside the EU.
With the post-Cold War enlargement of the European Union, new member states joined for which the disaster of World War II was not followed by a new golden era of European integration and liberal democracy but rather by another disaster: communist rule. These states’ most recent experiences with totalitarianism were not genocidal Einsatzgruppen but the brutal and decades-long repression of communism, and some — Lithuania, Latvia, and Hungary, for instance — have adopted laws criminalizing the denial of not just the crimes of genocide or Nazism but also those of communism. Perhaps this doesn’t seem so bad on its face — both Nazism and communism were horrible regimes, and their atrocities ought to be remembered. But this is where the story becomes complicated. Despite pressure from former communist states, the EU has rejected including the denial of communism’s crimes in its 2008 framework decision. And although the European Court of Human Rights excludes Holocaust denial from free speech protection, it decided in 2015 that Switzerland had violated freedom of expression by convicting a Turkish national for denying the Armenian genocide initiated by the Ottoman Empire during World War I. Accordingly, Europe operates with differing legal standards when it comes to criminalizing the denial of historical crimes.
That is a morally and politically awkward position with severe consequences in the many places outside Europe’s established democracies that have drawn inspiration from the continent’s memory laws. As the Kremlin-funded media outlet RT noted about the Russian law used to convict Luzgin, “the bill’s sponsors also refuted all criticism and said that … many foreign nations, such as Germany, Austria and France already had similar legislation protecting the historical truth as stated by the Nuremberg Tribunal.” In 2015, post- Maidan Ukraine went even further and criminalized not only the denial of the “criminal nature of the communist totalitarian regime of 1917-1991 in Ukraine,” but also the denial of the legitimacy of “the struggle for the independence of Ukraine in the twentieth century” and “publicly show[ing] contempt for” those officially recognized as “fighters for independence of Ukraine.” That law’s preamble refers to various human rights conventions and resolutions by the European Parliament and names as its purpose the protection of human rights and liberties and strengthening the independent, democratic, and constitutional state. Despite these ostensibly noble purposes, the law has been criticized by concerned international and Ukrainian historians, who worry that the law bans criticism or even factual historical accounts of some Ukrainian resistance groups that were involved in mass killings of Jews and Poles during World War II, sometimes in direct collaboration with the Nazis. Moreover, a nuanced discussion of the Soviet era distinguishing between the levels of repression during different periods might also be impeded.
Outside Europe, Rwanda and Bangladesh are examples of how European memory laws have migrated across continents and are being wielded as a weapon by undemocratic regimes. Following the Rwandan genocide in 1994, perhaps understandably, tough memory laws were passed in 2003and 2008. Today, any person who has “publicly shown, by his or her words, writings, images, or by any other means, that he or she has negated the genocide committed, rudely minimised it or attempted to justify or approve its grounds” risks between 10 and 20 years imprisonment. Human rights lawyer Nani Jansen estimates that as of 2014 the Rwandan memorial laws had resulted in upwards of 2,000 cases being brought; she also notes that they have been used to “restrict a free and open debate on matters of public interest in the country and especially the restrictive effect the laws have had on free speech in the media.” Those convicted under the law include journalists and political opponents of President Paul Kagame. When human rights organizations criticized the broad and vague nature of the country’s law, Rwanda’s then-prosecutor- general shot back at Western critics: “Their narrative is as if this is a draconian law meant to suppress political dissent and freedom of speech. What is not often told however is that the laws of similar nature actually have been in place in a number of European Countries for decades!” He then went on to specifically highlight the EU framework decision, the Holocaust denial laws in European democracies, and the case law of the European Court of Human Rights.
This year, the government of Bangladesh tabled a draft “Liberation War Denial Crimes Act” aimed at settling the historical account of that country’s bloody separation from Pakistan. The Bangladeshi draft law, too, is justified with a reference to European Holocaust denial laws. According to the draft law, undermining, misinterpreting, distorting, disrespecting, or running propaganda campaigns against the official historical account would be punishable with up to five years in prison. According to the government’s official account, the liberation war resulted in the deaths of some 3 million people. However, a number of studies suggest alternative figures ranging as “low” as 200,000 to 300,000 deaths. Yet such historical accounts would no longer be permissible if the bill is passed. Apart from cementing a questionable historical account as unquestionable truth, Bangladesh-based journalist David Bergman also worries that if passed, the law would shore up the current government and be used as a weapon against its opponents.
European memory laws have spread and metamorphosed to the extent that they now serve as the model for criminalizing accurate but nationally inconvenient historical accounts, as well as entrenching deeply flawed alternative histories used as foundations for specific national ideologies and repressive political agendas. This was hardly what the EU and its member states had in mind in the 1990s. But, in hindsight, this development was almost unavoidable in a globalized world, where legal norms spread to countries with very different histories, values, and systems of government.
Given the role that memory laws have come to play in undermining both academic freedom and political speech, the EU should urgently reconsider its approach. The Holocaust can still serve as the low point of modern European history, and its lessons as a focal point for European institutions, without criminalizing its denial. In fact, decriminalizing the denial of genocide and international crimes will only serve to strengthen the very values that have allowed historians to demonstrate beyond doubt the occurrence and magnitude of the Holocaust. That has ultimately been the most effective means of marginalizing deniers of historical truth to the ranks of xenophobes, pseudo-historians, and conspiracy theorists.
All western european countries have hate-speech laws. In 2008, the eu adopted a framework decision on “Combating Racism and Xenophobia” that obliged all member states to criminalize certain forms of hate speech. On the other side of the Atlantic, the Supreme Court of the United States has gradually increased and consolidated the protection of hate speech under the First Amendment. The European concept of freedom of expression thus prohibits certain content and viewpoints, whereas, with certain exceptions, the American concept is generally concerned solely with direct incitement likely to result in overt acts of lawlessness.
Yet the origin of hate-speech laws has been largely forgotten. The divergence between the United States and European countries is of comparatively recent origin. In fact, the United States and the vast majority of European (and Western) states were originally opposed to the internationalization of hate-speech laws. European states and the U.S. shared the view that human rights should protect rather than limit freedom of expression.
Rather, the introduction of hate-speech prohibitions into international law was championed in its heyday by the Soviet Union and allies. Their motive was readily apparent. The communist countries sought to exploit such laws to limit free speech.
As Americans, Europeans and others contemplate the dividing line emerging on the extent to which free speech should be limited to criminalize the “defamation of religions” and “Islamophobia,” launched by the member states of the Organization of the Islamic Conference (oic) since 1999, they should bear this forgotten history in mind. However well-intended—and its initial proponents were anything but well- intended—the Western acceptance of hate-speech laws severely limits the ability of liberal democracies to counter attempts to broaden the scope of hate-speech laws under international human rights law, with potentially devastating consequences for the preservation of free speech.
Freedom of expression and hate speech
The (nonbinding) universal Declaration of Human Rights (udhr) adopted in 1948 does not include an explicit duty to prohibit hate speech. Article 19 simply secures “freedom of opinion and expression.” However, the drafting history shows that the issues of hate-speech regulation and restrictions on free speech were frequently discussed. During the negotiation of Article 19, the drafters faced the challenge of whether, and if so to what extent, freedom of expression should tolerate even intolerance.
The majority of states favored a robust protection of free speech such as that set out in a U.S. proposal (un Doc. e/cn. 4/21), which read “there shall be freedom of speech, of the press and of expression by any means whatsoever.” However, the Soviet Union continuously proposed various amendments aimed at prohibiting expressions of intolerance.
The first uk proposal on the wording of an article aimed at securing freedom of expression recognized, like the Soviet proposal, the possibility for states to limit this right, in the interests of national security, against incitement to violence and disorder and obscene publications, whereas the uk proposal expressed doubts about the possibility of including publications aimed at suppressing human rights. But the uk did recognize a danger that these words would afford a wider power for the limitation of freedom of publication than is necessary or desirable,” they found “that it would be inconsistent for a Bill of Rights whose whole object is to establish human rights and fundamental freedoms to prevent any Government, if it wished to do so, from taking steps against publications whose whole object was to destroy the rights and freedoms which it is the purpose of the Bill to establish.
At first glance this proposal may seem wholly reconcilable with the efforts of the Soviet Union. Yet two elements of the uk position differed crucially from the Soviet one. First, the uk stated that “the right of Governments to impose the necessary restrictions . . . is to be interpreted as strictly confined to such publications as advocate the use of violence,” and second, that “no Government is obliged by the Bill to make use of the powers of limitation.” In other words, the limitations on free speech advocated by the uk were, first, with a few exceptions, dependent on the advocacy of violence, and thus mere expressions of intolerance would not in themselves be punishable, and, second, held that there should be no human rights obligation to prohibit such expression.
The debate in the drafting committee led to the adoption of two articles concerning freedom of thought and expression, neither of which mentioned any limitations or restrictions on this fundamental right. These two articles were passed on to the Sub-Commission on the Freedom of Information, which was also asked for advice and to “consider the possibility of denying this freedom to publications and other media of public expression which aim or tend to inflict injury, or incite prejudice or hatred, against persons or groups because of their race, language, religion or national origin.” Nevertheless, none of the proposals submitted to the Sub-Commission by the uk and U.S. experts contained any restrictions on freedom of speech. The work in the Sub-Commission led to two variations of limiting clauses, one referring to “the rights of others” and the other referring to “liability only for the abuses of this freedom in cases determined by the law of nations” (un Doc e/cn.4/Sub.1/sr.27). The Czechoslovakian and the Soviet experts were the only ones to oppose both of these limitation clauses, because they did not find the clauses sufficiently far-reaching. Despite opposition, including from the French delegate, the following vote in the Sub-Commission deleted, by a majority of eight votes, any reference to a limitation clause.
Despite the Sub-Commission’s rejection of a limitation clause, the Soviet delegates did not give up their effort to limit the substantive rights set forth in the udhr and in particular on freedom of expression. But the Soviet efforts to restrict Article 19 were rejected in the Third Committee, as several Western and non- Western countries worried that “fascism,” which the Soviet proposal aimed to prohibit, could not be defined. The Soviet delegate dismissed these doubts and explained that fascism could be defined as “the bloody dictatorship of the most reactionary section of capitalism and monopolies.” The udhr should guard against the fascists existing in all European countries except the “peoples’ democracies” (i.e., the communist countries). As pointed out by Johannes Morsink, this highly politicized perspective clearly demonstrated that the Soviet proposal would be targeted not just at Nazism but also against agitation in favor of capitalism and liberal democracy, and in all likelihood against any other political ideology than the supposed real democracy of communism. Accordingly, the proposal was defeated by a majority in the Third Committee and again at the General Assembly proper by the intervention of the U.S. representative, and chairman of the Commission on Human Rights, Eleanor Roosevelt.
The Soviet proposal would be targeted not just at Nazism but against agitation in favor of capitalism and liberal democracy.
Although Article 19 of the udhr does not contain a specific limitation clause, it is still possible to restrict freedom of expression pursuant to general limitation clauses contained in the udhr. Article 7 ensures equality before the law and protects specifically against incitement to discrimination, while Article 29 includes a general limitation clause according to which the rights in the udhr may be limited, inter alia, for the purpose of securing due recognition and respect for the rights and freedoms of others.
The drafting of Article 7 started in the Sub-Commission on the Prevention of Discrimination and the Protection of Minorities. The Soviet Union presented a proposal that included an obligation to prohibit “Any advocacy of national, racial, or religious hostility or of national exclusiveness or hatred and contempt, as well as any action establishing a privilege or a discrimination based on distinctions of race, nationality, or religion constitute a crime and shall be punishable under the law of the state.” The U.S. and Belgian experts vociferously opposed this proposal and sought to prevent a vote upon it. However, France came up with an extensive proposal requiring states to punish infringements of the principle of nondiscrimination. Ultimately Australia and China presented a draft compromise provision that sought to condemn only incitement to violence against minorities, which was adopted with ten votes and one abstention in the Sub- Commission.
Despite the adoption of this compromise, the Soviet delegate continued the fight for limiting freedom of expression in the Working Group of the Human Rights Commission. The Soviet delegate held a speech in which he declared that without a prohibition against hate speech “any Declaration would be useless.” This led to a reiteration of the above-mentioned Soviet proposal on Article 7, which was rejected, though very narrowly this time, with two votes to two, with two abstentions. During the second session of the Human Rights Commission, the Soviet delegate tried once more to submit the proposal, and this time the Belgian representative took it into consideration. He rejected the Soviet proposal but amended the current version of Article 7 with the phrase “and against any incitement to such discrimination,” which was adopted with a great majority.
However, in the third session of the Human Rights Commission, the British and Indian delegates jointly proposed to delete the prohibition against incitement to discrimination since “the United Kingdom, feeling morally bound to carry out the provision of the Declaration, would be obliged to pass laws which experience had shown were neither necessary nor desirable.”
Countries supporting the British/Indian stand included the U.S., while the French representative strongly favored a prohibition against incitement to discrimination. He was joined by, inter alia, the delegation from Yugoslavia, who felt that “incitement to discrimination should be explicitly forbidden.”
The dominant force behind the attempt to adopt an obligation to restrict freedom of expression was the Soviet Union.
When the matter came before the Third Committee of the United Nations General Assembly, the controversial character of the question of incitement seemed to have disappeared. The Belgian amendment was adopted with an overwhelming majority, 41 votes to three, with two abstentions, and Article 7 as a whole was adopted, 45 votes for to zero against, at the General Assembly. It is indisputable that the obligation to protect against incitement to discrimination may invite restrictions on freedom of expression. However, there are real differences in emphasis between the original Soviet proposal and what was adopted by the Third Committee. In its final version, Article 7 protects against incitement to discrimination, while the ussr had sought to prohibit incitement. Protection against incitement to discrimination does not necessarily entail a prohibition against certain forms of speech. The uk representative underlined this difference by stating that “the State should not be regarded as limiting the rights of individuals but as promoting the rights of all.” Accordingly, the protection against incitement to discrimination could plausibly be undertaken with alternative means to criminal law such as education, information, awareness campaigns, etc.
The drafting history of the protection of the freedom of expression in the udhr does not leave any doubt that the dominant force behind the attempt to adopt an obligation to restrict this right under human rights law was the Soviet Union. On the other hand, led by the U.S. and uk, the vast majority of Western democracies, albeit with differences in emphasis, sought to guarantee a wide protection of freedom of expression and in particular to avoid any explicit obligation upon states to restrict this right. iccpr
As opposed to the udhr, the International Covenant on Civil and Political Rights (iccpr) is a legally binding human rights convention, currently ratified by some 167 states. The iccpr was adopted in 1966 and includes a right to freedom of expression in Article 19, but also an obligation to prohibit hate speech in Article 20 (2): “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.”
The adoption of Article 20 was highly controversial and was preceded by protracted and heated negotiations. Taking into account the differences between liberal democratic and communist countries during the drafting of the udhr it is not surprising that the question of whether to adopt a prohibition against hate speech came to the fore with new and increased emphasis during the negotiations of the iccpr. Indeed, the drafting history of the iccpr echoes and shows more sharply the dividing lines already drawn between primarily Western and communist states, and their respective allies, on this crucial matter.
The first draft was limited to the prohibition of “any advocacy of national, racial, or religious hostility that constitutes an incitement to violence.” However, a number of countries led by the Soviet Union were adamant that incitement to violence was insufficient, and sought a broader prohibition against “incitement to hatred.” Poland expressed dissatisfaction with a provision only prohibiting incitement to violence, since it did not tackle “the root of the evil,” and worried that freedom of expression could be abused and “contribute decisively to the elimination of all freedoms and rights.” The Yugoslav representative thought it important to “suppress manifestations of hatred which, even without leading to violence, constituted a degradation of human dignity and a violation of human rights.”
Proponents of hate-speech prohibitions mainly justified the need for Article 20 with the recent memory of World War II and the Holocaust, but as Stephanie Farrior points out, with the passing of time, colonialism and apartheid were also used as justifications for prohibiting racial and religious hatred. The opponents of Article 20 pointed to the inappropriateness of such a prohibition in a human rights convention, to the arbitrariness of the terms “hatred” and “hostility,” and to the risk of undermining freedom of expression. Eleanor Roosevelt found the language “extremely dangerous” and warned against provisions “likely to be exploited by totalitarian States for the purpose of rendering the other articles null and void.” She also feared that the provision “would encourage governments to punish all criticism under the guise of protecting against religious or national hostility.” Roosevelt’s concern was shared by, among others, the five Nordic countries. Sweden argued that “the effective prophylaxis lay in free discussion, information, and education,” and that “fanatical persecution” should be countered with “free discussion, information and debate”. Australia warned that “people could not be legislated into morality.” Furthermore, it noted that “the remedy might be worse than the evil it sought to remove.” The uk representative stated that “the power of democracy to combat propaganda lay . . . in the ability of its citizens to arrive at reasoned decisions in the face of conflicting appeals.” When challenged by the Soviet Union, the uk representative pointed out that during World War II, Hitler’s Mein Kampf had not been banned and was readily available in the uk, and that its government “would maintain and fight for its conception of liberty as resolutely as it had fought against Hitler.”
The states where criticism of totalitarian ideology was prohibited were the ones that internationalized hate-speech laws.
It has been argued that the Western opposition to the prohibition against hate speech in Article 19 was disingenuous, given that the Allied Powers had imposed obligations not to permit fascist organizations and to prohibit hostile propaganda in peace treaties with countries such as Hungary, Bulgaria, Finland, Italy, and Romania in the late 1940s, as well as in the 1955 State Treaty with Austria.
However, these obligations are easily distinguishable from Article 20 as they were not included in human rights conventions aiming at universal application and related to the most exceptional of circumstances in countries that had been led by authoritarian regimes and thus had little tradition of liberal democracy. Moreover, Eleanor Roosevelt expressed regret at the inclusion of such language in peace treaties as by 1949 they had already served as a justification for repressive measures by Hungary, Romania, and Bulgaria.
When the current wording of Article 20 was put to a vote in the Third Committee of the General Assembly, it was adopted with 52 votes in favor, nineteen against, and twelve abstentions. Those in favor were primarily the communist states of Eastern Europe, as well as non-Western countries with very questionable human rights records such as Saudi Arabia, Haiti, Sudan, and Thailand. The nineteen countries that voted against included almost all Western liberal democracies — such as the United States, United Kingdom, Canada, Australia, New Zealand — the five Nordic countries, the Netherlands, and Ecuador, Uruguay, Japan, Malaysia, and Turkey. Eighteen countries (including the U.S.) entered reservations to Article 20 upon ratification. The voting record reveals the startling fact that the internationalization of hate-speech prohibitions in human rights law owes its existence to a number of states where both criticisms of the prevalent totalitarian ideology as well as advocacy for democracy were strictly prohibited. Moreover, the grandiose arguments these states advanced in favor of Article 20 seem — at best — highly disingenuous considering the systematic official propaganda of the communist states. icerd
In 1965, the un General Assembly adopted the International Convention for the Elimination of all Racial Discrimination (icerd). It was primarily a reaction to a wave of anti-Semitic vandalism in Germany and the fight against colonialism and apartheid
While icerd was adopted prior to iccpr, its provisions were drafted after the adoption of iccpr Article 20. According to Article 4 (a) the ratifying States “Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination.”
These obligations must be fulfilled “with due regard” to freedom of expression, but this provision is still substantially more far-reaching than iccpr Article 20, since it includes “all dissemination of ideas” and requires the criminalization, rather than the mere prohibition, of hate speech. This interference in the freedom of expression was one of the most controversial provisions in the treaty, and, like iccpr Article 20, it was subject to several negotiations that revealed a split between countries in the Western camp (supported by Latin America) and those in the non-Western camp. The first debate on Article 4 was based on two drafts, a U.S. proposal and a Soviet/Polish proposal.
Natan Lerner has described how, as with the iccpr, the U.S. sought to achieve support for a proposal that would criminalize incitement to racist hate speech “resulting in or likely to result in violence” rather than incitement to racial hatred. However, the Soviet/Polish proposal would, inter alia, “prohibit and disband racist, fascist and any other organization practicing or inciting racial discrimination”; in line with this, Czechoslovakia proposed prohibiting “dissemination of ideas and doctrines based on racial superiority or hatred.” The uk expressed support to the threshold envisaged by the U.S. proposal since “speech should be free, but incitement to violence should be repressed.”
A number of other delegations, primarily Western, made similar statements, but the most eloquent opposition to Article 4 came from the Colombian representative, who stated that Article 4 is a throwback to the past . . . Punishing ideas, whatever they may be, is to aid and abet tyranny, and leads to the abuse of power . . . As far as we are concerned and as far as democracy is concerned, ideas should be fought with ideas and reasons; theories must be refuted by arguments and not by the scaffold, prison, exile, confiscation, or fines.
These views were countered by statements primarily from representatives of communist countries such as Hungary, Poland, Czechoslovakia, and Yugoslavia arguing that the prohibition against discrimination (even among private parties) should be given preference over freedom of expression.
After a proposal from the Nordic countries, a “due regard” clause was inserted in Article 4. According to this clause, state parties shall fulfill the obligations in Article 4 “with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention.”
Clearly, most proponents of hate-speech laws do not share the same ideologies and methods as antidemocratic states.
Taking into account the wording and drafting history of the icerd, it is not difficult to see why Article 4 so appealed to nondemocratic states. icerd makes the state responsible for eliminating discrimination through coercive measures. The idea that deliberate state action — even at the expense of individual liberty — is the principal vehicle for social change and human progress is a hallmark of socialism, fascism, communism, and in some cases, forms of progressivism. The liberal democracies of the day, committed to the value of individual freedom, were sympathetic to the need to fight racism, even if several Western states did have real problems with racism at home. But they regarded the dangers of equipping the state with draconian powers to combat racism and intolerance more dangerous than the evils that these measures were employed to cure. However, in the context of the recent memory of the Holocaust and Western qualms about colonialism and apartheid, liberal democracies were unable to persuade communist states, as well as a range of newly independent states, that icerd would be a useful tool of dictatorial nations in proscribing the freedom that their peoples had just won. However, some eighteen countries (including the U.S.), upon ratification, entered reservations and/or interpretive declarations specifically aimed at protecting freedom of expression.
Clearly, most contemporary proponents of hate-speech laws do not share the same ideologies and methods as the communist states of the day. Yet they seldom mention or reflect upon the fact that such laws were proposed and advocated for by antidemocratic states in which freedom of expression (as well as all other basic human rights) was routinely violated. Nor do they mention that these states, often totalitarian, had a clear interest in legitimizing and justifying their repression with the use of human rights language, inverting human rights protections into coercive human rights obligations. A good example of this paradox is the former Yugoslavia, the scene of the latest European genocide, a state very active in promoting a prohibition against hate speech at the un. Article 134 of the criminal code in force at the time of the breakup of the Socialist Federal Republic of Yugoslavia punished with imprisonment of up to ten years anyone who “incites or fans national, racial, or religious hatred or discord between peoples and nationalities.” The article was mostly used by the communist regime to silence critics, but the prohibition against hate speech obviously did nothing to inculcate a culture of tolerance that could prevent ethnic cleansings and genocide, which occurred throughout Yugoslavia’s breakup.
Eric Heinze is right in scolding leading critical race theorists for praising the supposed international consensus on hate-speech laws at the un while completely ignoring that the communist states promoting this agenda ruthlessly repressed national, ethnic, and religious minorities.
While Western countries have undeniably engaged in indefensible acts of racism and colonialism, free speech has given a voice to minorities in these states, which has been instrumental in overcoming the worst practices of official discrimination. No such development happened in the communist states, where dissenting minorities had to await the implosion of communism before they could speak their minds and exercise self-determination.
The principled resistance by most Western European democracies to iccpr Article 20 and — to a lesser extent — icerd Article 4 is particularly ironic when considering that today it is official policy in these countries — as well as in members of the eu and the Council of Europe — that hate speech should be criminalized. With the adoption of iccpr Article 20 and particularly icerd Article 4, European states abandoned their principled opposition to international hate-speech prohibitions; as a result, the 1970s saw a dramatic increase in new or expanded hate-speech laws in Europe. In fact, European states that only fifty years ago found hate-speech laws dangerous and arbitrary have today become active proponents of such laws, albeit on different grounds and for nobler purposes than the nondemocratic states they opposed during the Cold War. Hate-speech laws may thus be one of the last enduring legacies of European communism, and, as we shall see, this legacy is being exploited by a new group of mostly illiberal states for whom religion rather than communism should trump free speech.
Continued pressure on free expression
Although the soviet Union is now dissolved and Cold War divisions no longer dominate the human rights efforts of the United Nations, the pressure on freedom of expression has not come to an end. In fact, a new dividing line has emerged in the battle over the extent to which free speech should be restricted. Once again, Western countries find themselves defending freedom of expression — albeit from a much weaker and unprincipled position than before — while the countries of the Organization of Islamic Cooperation (oic) and their allies argue for restrictions. Now, freedom of expression is threatened by proposals justified by the putative need to oppose the so called “defamation of religions” and “Islamophobia” — meaning negative criticism of Islam and Muslims — which the oic seeks to prohibit under international human rights law.
The issue of defamation of religions has been highly divisive at the un, pitting the oic and its supporters against Western states, mirroring the Cold War debates over udhr, iccpr, and icerd. The oic’s insistence on criminalizing defamation of religions is a manifestation of the ongoing challenge to the idea of universal human rights by a number of non-Western nations, including Muslim ones. These states view the idea of universal human rights as a form of “soft imperialism” on the part of the West, threatening their traditional cultural and religious values. In 1990, the oic states adopted their own “Cairo Declaration on Human Rights in Islam,” which purports to unite Islam with human rights but in reality subordinates human rights to Islam. All the rights in the Cairo Declaration are subject to rules of Islamic Sharia law, which are incompatible with universal human rights protections. Article 21, for example, states that “everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari’ah.”
Once again, Western states find themselves defending freedom of expression, now from the OIC and its allies.
In a 1995 debate at the un, the oic clarified what subjecting free speech to Sharia entails arguing, that “the right to freedom of thought, opinion, and expression could in no case justify blasphemy.” Moreover, the oic definition of blasphemy is extremely far-reaching, as witnesses by the widespread use of blasphemy laws in countries such as Egypt, where blogger Kareem Amer spent four years in prison for insulting Islam (and President Hosni Mubarak), and Pakistan, where thousands have been charged with blasphemy, with religious minorities being disproportionately targeted. Even relatively modern Indonesia has seen a number of blasphemy cases, as recorded in Freedom House’s 2010 publication “Policing Belief: The impact of blasphemy laws on human rights.”
It is this kind of law that the oic has tried to turn into an international human rights norm. The first resolution offered by Pakistan on behalf of the oic in 1999 was introduced under the title “Defamation of Islam,” but after some debate it was changed to “Defamation of Religions.” The resolution expresses “deep concern at negative stereotyping of religions” and states that “Islam is frequently and wrongly associated with human rights violations and with terrorism.” The resolution also “expresses its concern at any role in which the print, audio•visual, or electronic media or any other means is used to incite acts of violence, xenophobia, or related intolerance and discrimination towards Islam and any other religion.” Despite the fact that only Islam was mentioned — and despite the undeniable threat to free speech — the 1999 and 2000 resolutions on defamation of religions were adopted unanimously, without a vote. Since 2001, resolutions on defamation have become increasingly comprehensive and hostile to freedom of expression, and resistance to their more aggressive character means that they now are being put to a vote, first at the Commission on Human Rights and later the Human Rights Council (hrc), and since 2005 also at the General Assembly.
After peaking in 2003, resolutions on defamation of religion have steadily lost votes in the Commission, the hrc, and the General Assembly. In 2003, 32 countries voted in favor, with fourteen against and seven abstaining. In 2010, those numbers were twenty, seventeen, and eight. The oic was also dealt a blow at the Durban Review Conference held in Geneva in 2009. The oic had lobbied hard for the inclusion of a reference to defamation of religion, but the final document, while very far from perfect, did not include direct defamation language. The final blow came when the oic accepted a 2011 hrc resolution on, inter alia, “Combating intolerance, negative stereotyping, and stigmatization” of religious believers, which did not mention defamation language. Dwindling support has likely been key to the oic’s realization that defamation-of-religion resolutions — for now — are a dead end at the un. To their credit, Western states and human rights ngos were instrumental in opposing and (as of now) defeating the defamation agenda.
After peaking in 2003, resolutions on defamation of religion have steadily lost votes in the HRC, the Commision, and the General Assembly.
However, the very same countries and human rights activists that opposed the defamation agenda are typically in favor of hate-speech laws. The argument goes that defamation of religions protects abstract metaphysical constructs such as religion, whereas human rights are meant to protect only individuals. Technically this argument is correct (though third-generation rights such as the right to development and a clean environment contradict this position).
Yet, contemporary blasphemy laws typically protect the religious feelings of believers (not religious creeds or deities) as exemplified by the case law of the European Court of Human Rights, which allows the banning of “blasphemous” books and films that insult the religious feelings of believers (e.g., Otto Preminger v. Austria and Wingrove v. UK). As such, blasphemy laws often overlap with hate-speech laws, particularly when the latter include religion as a prohibited ground.
In the logic of the opponents of defamation of religions it would thus be incompatible with freedom of expression to criminalize harsh attacks against Islam on the basis of protecting this religion against defamation, whereas such criticism could plausibly be criminalized on the grounds of inciting hatred against Muslims under hate-speech laws as has happened in numerous European cases, such as Norwood v. UK and Soulas a.o. v. France.
Accordingly, the defeat of the defamation agenda, though a welcome and significant development, by no means secures freedom of expression in human rights law. While it was originally apparently a supplementary strategy, the oic countries have changed their main focus from a prohibition against blasphemy to a debate on the extent of the existing hate-speech prohibition in iccpr Article 20. Thus, while the recently adopted resolution in the hrc does not mention “defamation of religions,” it includes several references to the wording of Article 20.
But it also mentions “derogatory stereotyping, negative profiling, and stigmatization of persons based on their religion or belief” and “deplores any advocacy of discrimination . . . on the basis of religion or belief.” This wording is vague and unclear and would seem to fall well below the threshold of “advocacy of religious hatred” constituting “incitement to discrimination, hostility, or violence” established by Article 20. The resolution should thus be seen as an attempt by the oic to broaden the scope of Article 20 to include instances of so-called Islamophobia and what would have qualified as “defamation of religions,” such as the Danish Muhammad cartoons.
The broadening of Article 20 and the emphasis on the enforcement of this hate-speech clause were also included in the final-outcome document of the Durban Review Conference and a 2009 compromise resolution on freedom of expression co-sponsored by the United States and Egypt at the hrc. In a 2008 interview in Danish newspaper Jyllands-Posten, the secretary general of the oic stated that the oic is “neither against criticism of any religion nor calling for banning criticism of religions.” Rather the problem is when religious beliefs . . . are ridiculed, denigrated, and targeted with campaigns of insults with apparent or declared intent to incite hatred against the followers of this or that religion . . . incitement for hatred should not be allowed, as long as this specific act constitutes a crime within the parameters of international human rights documents, particularly article 20 of [iccpr].
The latest example of this agenda could be witnessed at Denmark’s Universal Periodic Review at the hrc on May 2, 2011. Numerous oic states including Egypt, Indonesia, Malaysia, Bangladesh, and Pakistan complained that Danish hate-speech laws were not enforced sufficiently, particularly when it comes to “Islamophobia,” and alluded directly or indirectly to the publication of the Muhammad cartoons. Pakistan stated, “The newspaper publication of cartoons about the Prophet Muhammad . . . shocked Muslims worldwide . . . and violated Articles 19 and 20 of iccpr and Article 4 of icerd.”
The oic interpretation of Article 20 as covering instances of religious criticism and satire is not limited to these countries. The publication of the Muhammad cartoons prompted three independent un special rapporteurs, including the special rapporteur on freedom of opinion and expression, to issue a joint statement on February 8, 2006 on this “offensive publication.” While the rapporteurs stressed the importance of freedom of expression they went on to state that: the use of stereotypes and labeling that insult deep-rooted religious feelings do not contribute to the creation of an environment conducive to constructive and peaceful dialogue among different communities . . . The Special Rapporteurs strongly deplore the depictions of the Prophet Muhammad and are distressed by the grave offence they have caused to the members of the Muslim communities.
This sort of development is exactly what Eleanor Roosevelt warned against during the debates on the iccpr, a view shared by delegates of almost all other Western states at the time. Yet, Western states, with the defeat of Western opposition to hate-speech laws and their subsequent embrace thereof, have severely limited their capacity to credibly oppose oic and un efforts to expand the scope of hate-speech laws. After all, how can countries where people are fined for criticizing Islam and Christianity, opposing multiculturalism, using colloquial expressions that are in other contexts racial epithets, advocating a boycott of Israel, denying the Holocaust and other genocides, expressing moral condemnation of homosexuality, etc. demand that other countries should refrain from enforcing rivaling interpretations of inherently vague and subjective hate-speech laws?
Respect for freedom of expression is the hallmark of free societies and the first right to be circumscribed by illiberal states. It is a sad reflection on Europe that the increasing emphasis on criminalizing words that wound, offend, or hurt is the brainchild of the very totalitarian states with which Western European states were locked in an ideological battle during the Cold War.
Jacob Mchangama is director of legal affairs at the Danish think tank CEPOS and external lecturer in international human rights law at the University of Copenhagen. He is a frequent commentator on human rights and the of rule law in Danish and international media.
Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (University of Pennsylvania Press, 1999), 66.
Stephanie Farrior, “Molding the Matrix: The Historical and Theoretical Foundations of International Law Concerning Hate Speech,” Berkeley Journal of International Law 14:1 (1996).
Egon Schwelb, “The International Convention on the Elimination of All Forms of Racial Discrimination,” International and Comparative Law Quarterly 15:4 (1966).
Natan Lerner, UN Convention on the Elimination of All Forms of Racial Discrimination, (Sijthoff & Noordhoff, 1980), 7.
Mirjam Streng, “The Convention on the Elimination of All Forms of Racial Discrimination & Freedom of Expression,” working paper.
Eric Heinze, “Truth and Myth in Critical Race Theory and LatCrit: Human Rights and the Ethnocentrism of Anti-Ethnocentrism,” National Black Law Journal 20:2 (2008). Soc (2016) 53:363–367 DOI 10.1007/s12115-016-0029-1
SYMPOSIUM: THE FREEDOM OF EXPRESSION
Freedom of Expression and National Security
Jacob Mchangama1
Published online: 3 June 2016 # Springer Science+Business Media New York 2016
Abstract The threat from terror and religious extremism has religious minorities and against counter terrorist measures that seen liberal democracies adopt a raft of measures are intended limit the expressions of terrorist apologists (and vice versa). to restrict freedom of expression. Yet very little focus has been Consider American journalist Glenn Greenwald who has long spent on how such measures affect freedom of expression and focused on Western counter terrorism measures and who seems internet freedom compared to debates over hate-speech and to regard Western democracies, led by the US, as the greatest blasphemy laws. threat to human rights including freedom of expression. Yet Greenwald has very little to say about the kinds of attacks from Keywords Terror . Freedom of expression . Islam . Islamists that have contributed to the enactment of draconian Denmark . Norway . UK . Europe counter terrorism measures, preferring not to confuse his mes- sage of a bad West waging war on marginalized Muslims. When he does address attacks such a Charlie Hebdo it is usually ac- In the past ten years free speech debates in many liberal democ- companied with a smear and an example of Western encroach- racies have mostly centered on whether there should be a right ments of the free speech of minority groups as if to say, that yes, to offend religious feeling and where to draw the line, if at all, killing journalists is bad, but European states are no better them- when it comes to so-called hate speech. Much less ink and selves. Or what is generally referred to as Bwhataboutery^. energy has been spent debating a phenomenon accompanying On the other hand quite a lot of pundits and politicians, in- the threat from extremism to free speech and national security cluding Dutch MP Geert Wilders, will declare freedom of ex- in general, namely the consequences for freedom of expression pression inviolable when it comes to the right to offend religion, of counter-terrorism and national security measures. and insist that Muslims must tolerate not only mockery of their Partly the lack of attention to this issue stems from the fact religion but also anti-Muslim bigotry in the name of the Western that many of those who are affected by such laws are genu- value of free speech. Yet they typically have little or nothing to inely loathsome people and defending them seems rather less say when Muslims are being jailed for Bglorification of noble and gratifying than defending journalists threatened by terrorism^, or surveillance measures are being abused to target extremists, or pundits who fall foul of proliferating and nebu- journalists or human rights organizations. In fact several of the lous laws against hatred and offense. Moreover, the issue of most hard-nosed Islam critics have enthusiastically supported freedom of expression and national security easily falls into measures aimed at limiting the freedom of expression of the Btribalism trap^ that engulfs so many debates on free Muslims, including Geert Wilders’ proposal to ban the Koran. speech. It is very rare indeed to find proponents of free speech In what follows I will argue that those who care deeply defending vigorously both the right to offend the feelings of about freedom of expression and the onslaught from radical Islamists, the misguided repressive tolerance of hate speech laws and the cultural elite’s call for self-censorship in media * Jacob Mchangama [email protected] and on universities, must also take very seriously the threat to freedom of expression from national security laws. 1 Justitia, Lautrupsgade 13, 2nd Floor DK, For most human rights and free speech activists in democra- -2100 Copenhagen, Denmark cies, defending freedom of expression has almost exclusively 364 Soc (2016) 53:363–367 focused on encroachments by the state. Consequently there has freedom, against those who seek to enforce extrajudicial pun- been a heavy focus on where the legal limits should be drawn in ishments for offensive expressions. But the state’sroleaspro- constitutions and human rights conventions. Yet, in the past de- tector of freedom of expression is far from uncomplicated, and cades these defenders and activists have been forced to acknowl- the responses to acts of terrorism against journalists and civil- edge the chilling fact that liberal democracies across the West, are ians have resulted in a raft of laws and practices that aim to home to small but growing groups of people so committed to an limit terrorism, including speech deemed capable of further- extremist religious ideology, that they are willing to kill those ing, supporting or legitimizing such acts. Thus, perhaps iron- who cross their narrow theological red lines. ically, while the threat from Islamists ushered in an era where It has thus become depressingly clear that limiting free speech freedom of expression came under threat from non-state ac- is not the prerogative of the state, and that the fines and occasion- tors, the response of governments also resulted in further re- al mild prison sentences typically meted out to transgressors in strictions on free speech from the state. democracies, are very mild punishments compared to those that In 2006 the Council of Europe adopted the Convention on radical Islamists have in store for blaspheming cartoonists and the Prevention of Terrorism which includes an obligation to journalists.Itstartedwiththefatwaissuedin1989byAyatollah criminalize Bthe public provocation to commit a terrorist Khomeini against British author Salman Rushdie. The fatwa offence^ even^ Bwhere such conduct, whether or not directly brought threats, death and injury to authors, translators and pub- advocating terrorist offences, causes a danger that one or more lishers in Britain, Japan, Italy, Norway and Turkey. The terrorist of such offenses may be committed^. threat against free speech then went into hiatus until exploding A very vague standard indeed and the explanatory protocol onto the streets of Amsterdam with the murder of Dutch film- to the convention makes clear that Bapologie^ or maker and outspoken Islam-critic Theo Van Gogh in 2004. But it Bglorification^ of terrorism may be included in the definition. was the Danish cartoons that would be the rallying cry of those In other words praising a terrorist act after it has happened, who seek to enforce the Jihadist’sVetoculminating with the may be criminalized in the same manner as inciting a terrorist deadly attack against Charlie Hebdo – who had republished the act that has not yet occurred. In numerous countries these Danish cartoons and published its own - in January 2015 and the international obligations have been translated into broad and attack against a free speech debate in Copenhagen in sweeping laws, though some countries including France, al- February 2015. ready had them on the books. And France is a good example Prior to the attacks in 2015, at least 5 or 6 serious attempts of where such laws may lead us. to kill journalists and editors of Danish newspaper Jyllands- In France a cartoonist was convicted for Bglorification of Posten and some of the main protagonists of the Cartoon terrorism^ for having made a cartoon of a plane crashing in to Crisis had been thwarted. Including a near miss attempt by two towers with the caption BWe all dreamt about it – Hamas an axe wielding Islamist to kill the cartoonist Kurt did it^ days after the attacks on 9/11. Expressing sympathy Westergaard, four would-be Jihadis stopped en-route to with the attacks on 9/11 is obviously morally reprehensible in Jyllands-Posten with a trunk full of submachine guns; and a the extreme. But the proper response would have been for the plot masterminded by American-Pakistani terrorist David magazine’s readers to protest or cancel their subscriptions, not Headley that included plans to behead as many Jyllands- for the state to convict a cartoonist for exhibiting (very) poor Posten journalists as possible and throw their heads on to the taste. Even more worrying, the European Court of human street below. Prior to the attack in January 2015, Charlie Rights found the conviction consistent with the protection of Hebdo was firebombed in 2011. Journalists living with round freedom of expression in the European Convention on Human the clock security details and working out of fortresses have rights. become the new normal in liberal Western Europe. Only days after the French president and world leaders had It has thus become clear that the vitality of freedom of ex- declared freedom of expression inviolable as a response to the pression depends as much on the Brough men [who] stand Charlie Hebdo massacre, French authorities charged more ready in the night to visit violence on those who would do us than 50 people with glorification of terrorism. Among those harm^, to paraphrase a quote attributed to George Orwell, as on charged – and later convicted - was controversial comedian robust legal guarantees in constitutions and human rights con- Dieudonne who on Facebook had written BI feel like Charlie ventions. Without men with guns ready to use deadly force, the Coulibaly^, brutally mocking the ubiquitous rallying call of shrinking number of voices who still dare to defy the Jihadist’s BJe Suis Charlie^ by using the last name of one of the terrorists Veto would likely be on the brink of extinction and the already involved in a follow up attack on a Jewish kosher market in prevalent self-censorship that has crept into newsrooms and Paris. editorial boards - no Danish newspapers reprinted the cartoons The response of the French authorities highlighted how ill on its 10th anniversary - would be even more deafening. defined the very value which the whole world seemed to cel- Accordingly, the state is no longer solely a potential threat ebrate in those days really is, even in the home of the to freedom of expression, it is also the guardian of this Declaration of the Rights of Man and The Citizen. Soc (2016) 53:363–367 365
Among those who post-Charlie Hebdo insisted that [T]he response of a vigorous democracy to bad ideas is Freedom of Expression must never be compromised to take them on, outsell them and eventually consign was British Prime Minister David Cameron. Yet them to history. The Government may need to protect Britain has also seen a number of cases that highlight the vulnerable from indoctrination and intimidation, the dangers of overreach. In 2012 a woman was sen- whether in schools, prisons or even the family. As well tenced to one year in prison for downloading two issues as putting its own views forward, it may facilitate of the Al Qaeda publication BInspire^ on her mobile Bcounter-speech^ by others. But the powers of the state phone. She was the sister of a convicted terrorist but to suppress the expression of religious and political the sentencing judge accepted that she had no involve- views, for reasons other than the prevention of violence ment in terrorism herself and had merely downloaded or abuse, have traditionally been very limited. the magazine to try and understand why her brother had been attracted to terrorism in the first place. Considering the many ways that the UK has already Nonetheless she was found guilty of Bpossessing infor- limited free speech with laws on hate speech, public mationlikelytobeusefultosomeonecommittingor order and religious hatred, the proposed anti-extremism preparing an act of terrorism^. bill would take the UK even further away from the days Such a broad and vague worded prohibition is incompati- when David Hume could confidently declare that ble with any notion of freedom of expression and the free flow Bnothing is more apt to surprise a foreigner, than the of information. Particularly if the mere possession of extreme liberty, which we enjoy in this country, of com- Bterrorist^ literature is sufficient to be convicted regardless municating whatever we please to the public, and of of intent. Surely ordinary citizens should be encouraged to openly censuring every measure, enteredintobythe read the manifestos and manuals of the very terrorist organi- king or his ministers.^ zations that want to kill them, in the same manner that those Denmark is a liberal democracy that has traditionally who want to understand Nazism and the mindset of Hitler shied away from the militant democracy of its southern should read Mein Kampf. neighbor Germany, where both islamist, far-right and Yet British counter terrorism measures may very well make communist groups are or have been banned, and where further inroads into freedom of expression. The government expressions in favour of Nazism and Holocaust denial has prepared a bill which also targets Bnon-violent are strictly prohibited. Yet even in Denmark counter- extremism^, which defines extremisms as B[T]he vocal or terrorism laws have had a corrosive effect on freedom active opposition to our fundamental values, including de- of expression. Sine 2005 Turkey had been trying to mocracy, the rule of law, individual liberty and the mutual convince Danish authorities to close a Kurdish tv- respect and tolerance of different faiths and beliefs^. station that acted as a mouthpiece for the armed The bill would, inter alia, allow: Kurdish group PKK, yet the relevant government agen- Banning Orders – a new power for the Home Secretary to cy rejected several complaints and the prosecutor stalled ban extremist groups. • Extremism Disruption Orders – anew on taking action. Yet when then prime minister Anders power for law enforcement to stop individuals engaging in Fogh Rasmussen decided to run for the position of extremist behaviour. • Closure Orders – a new power for law Secretary general of NATO in 2009, and needed the enforcement and local authorities to close down premises used votes of Turkey, charges were brought against the TV- to support extremism. • Broadcasting – strengthening Ofcom’s station. Its owners were convicted of Bfurthering^ terror- roles so that tough measures can be taken against channels that ism due to the one sided coverage and propaganda for broadcast extremist content. the PKK, resulting in the tv-station losing its license to Some of these proposals would amount to de facto censor- operate. Whether the prosecution was initiated in order to ship of people not convicted of crime, who would need permis- secure Fog Rasmussen’s NATO-position we will never know sion before participating in public debate. In and of itself, such for sure, though a leaked Cable from the American Embassy draconian measures are indefensible in a free society. But tak- in Copenhagen seems to confirm this. Suspicion It reads: ing into account how British authorities have used pow- ers aimed at keep extremists out of the country against Denmark pledges to intensify efforts against Roj-TV – a controversial American radio host, citing Bnational among the measures offered Turkey for not blocking security^, there is every reason to believe that an ad- former PM Rasmussen’s appointment as NATO secre- ministratively enforced anti-extremism bill would very tary general – have given additional impetus to the in- quickly encompass those whose views may be nothing vestigation while also prompting senior officials to tread more than controversial. In fact The British government carefully, to avoid the appearance of a quid pro quo (i.e., appointed BIndependent Reviewer of Terrorism sacrificing freedom of speech in exchange for a high- Legislation^ David Andersson, QC warned that: level post). 366 Soc (2016) 53:363–367
If true, Denmark’s vague anti-terrorist laws were abused for easily vague and broad national security laws can be abused political gains underscoring the danger of scope creep and by autocracies was already demonstrated during the Cold War. political exploitation of such broad and sweeping measures. The drafters of the influential Charter 77, including dissidents In another Danish case a notorious AL-Qaeda supporter such Vaclav Havel, spoke of freedom and human rights. But was convicted and sentenced to 4 years in prison and revoca- the Czechoslovakian chief prosecutor determined that. tion of his citizenship for more than 40 comments on Bit is reasonable to conclude that the initiators of this activ- Facebook, e-mails sent to a list serve and a number of books. ity have already formed a group that can be considered an While some of the comments explicitly called for violent jihad illegal organization. It is a jointly run association of several other statements were more ambiguous. For instance a photo persons with a social aim, guided by a common program of of the World Trade Center in flames and a manipulated 7–11 anti-state activity^. logo, reading B9–11 made by Qaeda^, a picture of horsemen That playbook is now being used by modern day autocrats. with raised swords and black flags with the following Quranic In Erdogan’s Turkey, three journalists from Vice News were verse: BFight in the way of Allah those who fight you^. recently arrested on manifestly absurd terrorism charges. However, the Danish courts essentially did not distinguish Amid a climate increasingly hostile to independent media, between the statements that explicitly called for violence and Turkish prosecutors have also launched a terror related inves- those that were more abstract and characterized them all as tigation of the Dogan Media Group which owns the indepen- Bglorification^ and Bfurthering^ of terrorism. Several other dent newspaper Hurryiet occasionally guilty of deviating from cases concerning updates on social media are pending. It is the Erdogan narrative. In Putin’s Russia the Duma has adopted interesting to note that had the defendant shared a video and amendments to counter-terrorism legislation, including a new praised Assad’s killing of children with gas, celebrated the law on BInternet users called bloggers.^ The law requires Holocaust or the Gulags, he would have faced no criminal bloggers with more than 3000 daily visitors online to register sanctions since these instances of mass murder do not consti- with the state body for media oversight or face fines or tute terrorism and can therefore be glorified freely. In March blocking. 2016 the Danish government announced new measures ban- If liberal democracies should stop short of cracking down ning so-called Bhate preachers^ from entering the country and on non-violent terrorist speech, how should they react when even more draconian criminalizing Bexpressions that under- citizens express extremist views? Given the level of terrorist mine the values of the Danish society^. threat no one can doubt that governments have both a right It is interesting to compare the case of the Danish Islamist and a duty to counter this phenomenon, and inaction is clearly convicted of glorifying terror, with an almost identical one not an option. from Norway, where an Islamist praised a number of terrorist I would like to offer a personal experience as well as some attacks on his Facebook account. As opposed to its Danish historical lessons to suggest a way forward that tackles the counterparts, the Norwegian courts acquitted the defendant on extremist narrative while safe guarding free speech. In 2010 the grounds that freedom of expression is a fundamental right The Danish branch of Hizb-ut-Tahrir, an Islamist organization of great importance. The court scolded Parliament for not committed to the establishment of a totalitarian world-wide having drafted the relevant provision with sufficient clarity caliphate ruled by sharia law, held a conference in the publicly and found that the legal uncertainty created by such vague owned Royal Library. Leading up to the conference Hizb-ut- criminal provisions had to benefit the defendant and thus Tahrir had distributed flyers with coffins draped in Danish interpreted Bincitement^ as requiring a Bdegree of flags and argued that it was legitimate to target Danish soldiers concretization^ and Bstrength^ to be met. The court also con- in Afghanistan. Many politicians wanted to ban Hizb-ut- firmed previous Supreme Court case law determining that no Tahrir and insisted that the event be cancelled. Yet I and others one should risk criminal liability for expressions based on argued that free speech and association must also protect inferred interpretation rather than explicit statements. groups like Tahrir and the event went ahead. Accordingly, the court found that the statements in question A year or so later I was approached by a former leading constituted Bmere^ glorification of already committed terrorist member of Hizb-ut-Tahrir who had left the group. The fact acts, rather than Bincitement^ to commit future ones. that people who vehemently disagreed with him and who he The Norwegian approach is one that should guide the ef- had considered enemies, had defended his right to free speech forts of liberal democracies when confronting terrorist speech, hadbeenanepiphany.Henowrealizedthatfreespeechwas since it takes seriously the safe guards that distinguish states not a weapon aimed at Islam but rather a principle based on the rule of law and respires for human rights from safeguarding the rights of all, including Muslims. He remains those where these guarantees are absent. to this day a devout Muslim but has set out to counter the And if one believes that freedom of expression is a global narrative of extremist by incorporating free speech into a theo- good and a right that should be universal, it is important that logical interpretation of Islam consistent with and emphasiz- democracies lead the way in the manner of Norway. Just how ing the importance of liberal democracy. Other former Soc (2016) 53:363–367 367 extremists recount having had the same experience. That sug- birds with one stone, to destroy an oppressor and the man he gests that the principled defense of free speech is essential if oppresses at the same time.^ We can also find democratically we want to present liberal democracy as a credible alternative elected politicians who supported Pinochet, Apartheid and the to the very real allure of Islamist extremism. terrorist actions of the Ku Klux Klan. That includes former US Adopting an inconsistent defense of free speech when it SenatorRobertByrdwhowasbrieflyamemberoftheKKK comes to terrorism, risks handing a propaganda victory to and once stated that BThe Klan is needed today as never be- extremists who like nothing better than exposing democracies fore, and I am anxious to see its rebirth here in West Virginia^ for their supposed hypocrisy and who, have used crackdowns and engaged in Klan apology as late as 1958 when a member on free speech to spread a narrative insisting that in the West of Congress. free speech is only inviolable when it comes to mocking Islam With some exceptions these ideas and movements were not but can be restricted at will when it comes to the expressions defeated through bans or illiberal policies at home, but by of Muslims. Of course such a narrative is grossly distorted, but social change in outlook and attitudes, fueled by a robust when democracies adopt broad and sweeping laws against debate, social movements, a free media and academic freedom terrorist speech, this distorted narrative is given a certain fac- that exposed the totalitarian nature of communism, right wing tual basis however, slim. dictatorships and the evils of racism. When illiberal excep- It is also worth remembering that Western Post World War tions were made, Berufsverbot in Germany and 2 democracies have been confronted with totalitarian ideas McCarthyism in the US, most would agree that such policies and movements before, and that significant parts of both the were indefensible and erred on the side of repression, and that population and intellectual elites were drawn to communism these measures should be invoked as a cautionary tale rather during the Cold War, propagating totalitarian ideas and advo- than example to be followed. And while there is no guarantee cating the abolishment of democracy. In Denmark the far left that Islamic fundamentalism can be defeated in the same man- party the Left Socialists – who had seats in Parliament - ner, it is surely too soon to give up trying. In a world where a openly called for an armed revolution and signed a joint mere 14 % of its population live in states with a free press, and statement with the Palestinian terrorist group PFLP where free speech is at its lowest level in more than 10 years, supporting its violent actions, and calling for the de- citizens and governments of liberal democracies have an ob- struction of Israel. Several far-left groups openly sup- ligation to stop the free speech race to the bottom. That in- ported the German terrorist group Rote Arme Fraktion, cludes protecting the free spech even of those who want that responsible for several murders in the 1970’s. freedom destroyed. A popular fig. on the anti-colonialist radical left was the dashing psychiatrist Franz Fanon who wrote the book BWretched of the Earth^ and actively supported the Algerian war of resistance against the French. In his book he wrote: BAt Jacob Mchangama is the founder and executive director of Justitia, a the level of individuals, violence is a cleansing force. It frees Copenhagen based think tank focusing on human rights and the rule of the native from his inferiority complex and from his despair law and the co-founder and co-director of The Freedom Rights Project. He has taught international human rights law at the University of and inaction; it makes him fearless and restores his self- Copenhagen and written on human rights in Foreign Policy, Foreign respect^ In the preface to that book none other than Jean Affairs, Wall Street Journal Europe and The Times.Hetweets Paul Sartre wrote: ‘To shoot down a European is to kill two @jmchangama Further reading:
The proposed Regulation on preventing the dissemination of terrorist content online:safeguards and risksfor freedom of expression https://cdt.org/files/2018/12/Regulation-on-preventing-the-dissemination-of-terrorist-content- online-v3.pdf
Germany’s NetzDG: A key test for combatting online hate https://www.counterextremism.com/sites/default/files/CEP- CEPS%20NetzDG%20Report_112218.pdf