The famous little mermaid in the port of Copenhagen was found dressed in a headscarf recently, according to media reports. No one took responsibility for this provocative action – maybe it was just a joke, maybe it was intended as a message in the debate about the lack of respect for Muslims. Anyhow, it was a reminder that the debate about how to combine freedom of expression and respect for religions is still not concluded.
I belonged to those who felt that the publishing of the so-called Danish cartoons was irresponsible and a reflection of Islamophobia. The damage was considerable and the hurt among Muslims was very deep. However, I was not in favor of any legal action against Jyllands-Posten. Also, I did not feel that the cartoons illustrated a need for stronger blasphemy laws. My opinion is that we should try to tackle such differences through a free and open discussion.
Admittedly, this was a borderline case. Freedom of expression as articulated in article 10 of the European Convention on Human Rights is not without limits. The freedom carries with it duties and responsibilities and may be subjected to restrictions to protect public order and the rights of others, if this is “necessary in a democratic society” and regulated by law.
The article specifies that the freedom may be limited “in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.
These provisions may not be easy to interpret in individual cases. One thing, however, is clear: hate speech is not allowed. The European Court of Human Rights has ruled that freedom of expression gives no entitlement to hate speech, which “is incompatible with the values of the Convention, notably tolerance, social peace and non-discrimination”.(1) The same line is followed by a 1997 recommendation of the Committee of Ministers of the Council of Europe. The EU Council took a similar position in a recent Framework decision condemning intentional hate speech.
Indeed, the International Covenant on Civil and Political Rights makes it an obligation for States to prohibit incitement to racial and religious hatred (article 20). The key aspect here is the deliberate incitement which can lead to discrimination or violations against others. The term hate speech in the Covenant is carefully defined as “advocacy of national racial or religious hatred that constitutes incitement to discrimination, hostility or violence.”
In reality, it may still not always be easy to draw the line between hate speech and other types of criticism. However, it is absolutely not intended that uncomfortable and irritating statements in general should be prohibited. The Court made this clear in a frequently quoted ruling that freedom of expression was not only applicable to information and ideas which were inoffensive “but also to those that offend, shock or disturb the State or any sector of the population”.(2) This was an important interpretation.
Banning information and the expression of opinions should be seen as an exceptional measure which needs to be decided through democratic means and justified as a matter of absolute necessity. Otherwise, there may be a risk that inopportune statements are stopped because someone who is influential does not like them.
Freedom of expression is a key human right for the good functioning of democracy itself. We know from experience its importance when exposing societal problems, monitoring people in power and promoting tolerance. These values must be protected – even at the cost of accepting some dubious media reporting.
The Parliamentary Assembly of the Council of Europe has decided to prepare a report on legislation relating to blasphemy, religious insults and hate speech against persons on ground of their religion and the Venice Commission has been requested to prepare an overview of national law and practice in this area.
In a preliminary report the Venice Commission(3) writes that “religious groups must tolerate, as other groups must, critical public statements and debate about their activities, teachings and beliefs, provided that such criticism does not amount to intentional and gratuitous insult and does not constitute incitement to disturb the public peace or to discriminate against adherents of a particular religion”.
This appears to be the legal situation in Europe today:
• Practically all Council of Europe member States have legislation against incitement to hatred, including religious hatred.
• Most States also provide for specific, more stringent or severe provisions relating to incitement to hatred through the mass media.
• Religious insults are a criminal offence in a little more than half the member States.
• Denial of certain historical facts, such as Holocaust and genocide, is an offence in certain countries.
• Blasphemy is an offence in only a minority of member States and where it is one, it is, nowadays, rarely prosecuted.
The Venice Commission concludes that there is no need for new specific legislation on blasphemy, religious insults and inciting religious hatred. The focus should rather be on the full, correct and non-discriminatory implementation of the existing general legislation.
This is a wise conclusion. New legislation would give the impression of favoring further restrictions of freedom of expression instead of accepting that – as the Commission stated - an open discussion of controversial issues is vital for democracy. In fact, what is needed is a review of existing laws in order to secure that the restrictive ones are repealed.
As rightly stressed by the Venice Commission, it rests within the national courts to apply the legislation in a non-discriminatory manner. The national judges should build on the principles offered by the Court and, in their test of proportionality, take into account the impact of opinions and the context in which they are expressed. Following the Giniewski and Aydin Tatlav(4) judgments, the chilling effect of a sanction likely to discourage authors or publishers expressing non-conformist opinions on religions has to be considered carefully.
The Venice Commission also announced its intention to reflect on alternative measures for a good balancing of the rights of every group and individual. In order not to jeopardize the right to freedom of expression, we could envisage additional and complementary means of addressing possible conflict with the respect for religions, focusing on the prevention of insult.
The media in some countries have agreed upon Codes of Ethics and established review Councils for the purpose of self-regulation. The codes might be drafted or re-drafted in light of the new challenges. They could refer to the role played by journalists in the promotion of a culture of understanding of and tolerance for different cultures and religions. Co-regulatory frameworks involving the media, civil society and the public authorities should also be developed.
Thomas Hammarberg
Notes
1. Decision as to the admissibility of application N° 23131/03 by Norwood v. United-Kingdom, 16 November 2004.
2. Handyside v. United-Kingdom, 7 December 1976, § 49.
3. Study 406/2006, CDL-AD(2007)006. Preliminary report on the national legislation in Europe concerning blasphemy, religious insults and inciting religious hatred adopted by the Venice Commission at its 70th plenary session, (Venice, 16-17 March 2007).
4. Giniewski v. France, 31 January 2006, § 55 ; Aydin Tatlav v. Turkey, 2 May 2006, § 30 (in French only).