Hate Speech and the European Court of Human Rights

Introduction

The European Court of Human Rights was established in 1959 with the express mandate to decide on either state or individual cases involving violations of the convention on Human Rights with regards to civil and political rights contained thereto. The decisions of the court are thus binding on member states. On the topic of hate speech, the European Court of Human Rights has had a chance, in fact, a number of chances and opportunities to pronounce itself on a number of cases that it has been seized with since its inception. Worth noting is the fact that the freedom of expression embodied in the Human Rights Convention that is the very foundation of hate speech has been declared not to be an absolute right by the court. The freedom has since been declared to have limitations. Seeking HRM dissertation help? The European Court of Human Rights shows a rich field for exploration within the domain of human rights law and jurisprudence.

Cases decided by the court.

In the case of Belkacem v Belgium (2017) ECHR 253, the Court found that freedom of expression under article 10 of the European Convention on Human Rights herein the ‘Convention’, does not protect hate speech or utterances that are perceived to be hateful in nature. In this case, the applicant who was a leader of a radical organization in Belgium and who had called upon viewers on his you tube channel to fight and overpower non-Muslims whom he called animals had been prosecuted and convicted under Belgian laws for inciting people. The Belgian laws were aimed at curbing glaring discrimination in his statement as published in you-tube. The applicant maintained that his utterances were not aimed at inciting hatred, discrimination or even violence but that he was only disseminating or circulating his opinion. He placed his emphasis on article 10 of the convention, which provides thus;

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers …”

The domestic court in Antwerp found the applicant guilty of incitement to violence, hatred and discrimination. The court further expressed itself to the effect that by him uploading more videos to you tube even after being summoned to appear in court amounted to aggressiveness and such an act constituted a great danger to public security and safety. He was thus imprisoned for two years and a fine. He appealed unsuccessfully through the Criminal court of Antwerp, the court of appeal and to the Court of Cassation which is the highest judicial body in Belgium. The Cassation court agreed with the trial court and the court of appeal and stated further that the applicant’s conduct was not about an expression of his views. His amounted to incitement aimed at discriminating other religion or the non-Muslims based on their faith and that this was done intentionally and deliberately. Continue your journey with our comprehensive guide to Religion, Law, and Secularism in the UK.

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1. Janssen, E. (2015). Faith in public debate: on freedom of expression, hate speech and religion in France & the Netherlands. Intersentia.
2. Belkacem v Belgium (2017) ECHR 253
3. article 10 of the ECHR

He appealed to the European Court of Human Rights in 2014 and the main issue for determination before the court was whether the laws under which the conviction was founded in Belgium was in accordance or compatible with the Convention. The findings of the court were that the utterances by the applicant were against major values of social peace, non-discrimination and other values such as tolerance under the convention. Further, it was the finding of the court that the applicant had used article 10 in such a manner that was indeed contrary to the article’s purpose.

The Court in concluding its decision reaffirmed the importance of freedom of expression in any democratic society but noted in strong terms that the freedom can be fettered anytime as long as the utterances in the name of freedom of expression are intended to cause anti-social behavior which are not given protection by article 10 of the Convention. In projecting potential circumstances where limitations on article 10 on freedom of expression could be levied, the court invoked article 17 of the convention which provides thus;

“ Nothing in the Convention may be interpreted as implying for any State, group or individual any right to engage in any activity or to perform any act aimed at the destruction of the rights or freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”

While dismissing the appeal by the applicant, Mr. Belkacem, the Court concluded that in light of article 17 above, the applicant could not rely on article 10 since the convention could not be read in isolation or disjunctively. The interplay between articles 10 and 17 of the European Convention on Human Rights is a strong statement of intent that in Europe, hiding behind the veil of freedom of expression is not an excuse for hate speech. This decision is however, not binding outside the European Union.

In another case of Vejdeland and Others v Sweden (application no. 1813/07), the European Court of Human Rights also expressed itself that conviction based on distributing offensive leaflets on homosexuals was not contrary to freedom of expression under article 10 of the convention. In this case, the applicant had distributed leaflets which contained offensive statements to Homosexuals by calling them deviant sexual proclivity, a disgrace to the society and blamed them for development and growth of HIV and AIDS. He was convicted under Swedish law for aiming insults and discrimination at a particular group of persons within the society.

The applicant appealed to European Court of Human Rights and the court in dismissing the appeal, had no difficulties in pronouncing that the statements contained in the leaflets had constituted grave and prejudicial allegation that were hateful in nature. The Court emphasized that there was a faint line between discrimination based on colour, origin or race and discrimination based on sexual alignment. As such, the action amount to hate speech and had no protection under article 10 of the convention on freedom of expression. Further, the court remarked that such offensive statements were not only injurious to the group alone but also to the community at large and that individuals involved in publishing, expressing or disseminating offensive statements aimed at discrimination a society cannot justify their actions with the freedom of expression as provided for under the convention.

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4. article 17 of the ECHR
5. articles 10 and 17 of the European Convention on Human Rights
6. Vejdeland and Others v Sweden (application no. 1813/07),

In another case of Pavel Ivanov v Russia, the applicant had been convicted in Russia of incitement to religious and ethnic hatred by using mass-media. He had published a number of articles aimed at portraying the Jews in Russia as the basis of evil and as such should be excluded from any form of social life in Russia. He maintained his stance during trial and even submitted orally that the Jews deserved no right to national dignity for they did not constitute a nation. He was convicted of incitement aimed at stirring racial hatred, a conviction which he maintained was not justified.

He appealed to the European Court of Human Rights that dismissed his application for the reasons that his publications were aimed at causing hatred especially to the Jews. The court stated that his attacks were apparently incompatible with values that underlie the convention like tolerance, non-discrimination and social peace. In dismissing the appeal, the court was unequivocal in maintaining that those who abuse rights in the convention as prohibited by article 17 of the convention cannot purport to benefit from article 10 on the freedom of expression. This was also the case and position of the court in the case of W.P. and Others v. Poland (no. 42264/98) where the court maintained that the applicants could not benefit from article 11 of the Convention on the freedom of association and assembly when the very association contained ethnic statements aimed at anti-Semitic groups.

In Roj TV A/S V. Denmark, the Danish court found the applicant’s company guilty for incitement to cause violence through supporting terrorism offences. The company was found guilty of propagating propaganda through broadcasting the same in their media company, Roj TV. Being guilty in accordance with the Danish penal laws, the company was fined and its license withdrawn. It was its defense that tha its conviction was against freedom of expression. While dismissing the appeal, the European Court of Human Rights reaffirmed that the applicant’s company especially the television station by employing the right for ends in broadcasting the news aimed at inciting and supporting terrorism, could not benefit from article 10 and the protection thereunder since article 17 of the convention prohibited abuse of rights. the court concluded that the applicant did not deserve the protection of article 10 of the Convention on freedom of expression.

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7. Pavel Ivanov v Russia
8. W.P. and Others v. Poland (no. 42264/98)
9. Bleich, E. (2014). Freedom of expression versus racist hate speech: Explaining differences between high court regulations in the USA and Europe. Journal of Ethnic and Migration Studies, 40(2), 283-300.
10. Roj TV A/S V. Denmark

In another case of Garaudy v. France, the applicant who was the author of a book “the founding myths of modern Israel” was found guilty of disputing that there existed crimes against humanity. He was also found guilty of defaming a particular group of persons in a society, the Jews and also incitement to cause racial hatred among others. He maintained that by dint of conviction, his freedom of expression had been interfered with greatly. The European Court of Human Rights declared the application inadmissible for the reason that denial of existence of crimes perpetrated to humanity was one of the worst serious aspects of racial discrimination and amounted to incitement to stir hatred to the Jews who suffered during the Holocaust. The court held that such a denial did not constitute historical or scientific research and as such, such acts were manifestly in contravention of the fundamental values which the European Convention on Human Rights sought to promote and protect. The applicant had thus abused such rights under article 17 of the convention and could not therefore claim protection of article 10 on freedom of expression.

While in M’Bala M’Bala v. France, the applicant who was a comedian majorly on political affairs was found guilty of public insults aimed at stirring ethnic, nation and religious hatred towards the Jews community in France by inviting an academic to his show was known by his negationist and revisionist ideas and opinions. The European Court of Human Rights held that the applicant could not benefit from article 10 on the freedom of expression for the reasons that the show no longer resembled comedy or entertainment during presentation where the applicant wore a pyjama with the word ‘Jew’ inscribed in it but instead, it looked like a political show. It was the decision of the court that even if the show was satirical, the utterances therein could not be accorded protection under article 10 of the convention. The show was therefore disguised as an entertainment production when in the real sense it was more dangerous than a head-on attack. As such, under article 17 of the convention, the Court found that the applicant could not benefit from article 10. The Court thus found that the applicant actions were incompatible with the letter and spirit of the European Convention on Human Rights

In Williamson v. Germany, the applicant who was a bishop and also a former member of a certain faith organization, had denied the Holocaust on a Swedish television. He was found guilty of incitement to hatred. He argued that the offence was not committed in Germany and as such German laws did not apply to him. Further that in Sweden where he made his statements, Swedish laws had no criminal liability as regards. The applicant further argued that he had done all he could within in his possession to make sure that the statement was not broadcast in Germany. The European Court of Human Rights declared the application and the appeal inadmissible. The court explained that the applicant by giving interview to Swedish television channel while in Germany knew that his conduct would be subjected to criminal liability. He did not make any attempts to clarify with the interviewer how the interview would be published. In its ruling, the court dismissed the application and stated that the applicant could not benefit from freedom of expression under article 10 of the Convention.

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11. Garaudy v. France
12. M’Bala M’Bala v. France
13. Williamson v. Germany

In Pastors v. Germany, the applicant, a deputy land registrar was convicted of denying the existence of Holocaust in his speech in a regional assembly. The applicant maintained that his rights under article 10 of the convention was infringed. The court while dismissing the application, stated that the applicant had intentionally defamed the Jews by stating untrue statements against them. The Court agreed with the German court and held that the applicant’s conviction was proportionate and as such, the Convention and more so article 10 on freedom of expression was not a refuge for those violating the convention.

Also, in Glimmerveen and Haqenbeek v. the Netherlands, the applicants who were in possession of offensive leaflets directed at the white Dutch people with the intention of chasing them away from the Netherlands were found guilty of incitement to racial hatred. The court while agreeing with the Dutch court and dismissing the application stated that article 17 of the European Convention on Human Rights on the prohibition of abuse of rights prevents applicants who contravenes the underlying values of the convention such as tolerance, hatred among others from benefiting from the protection of article 10 of the convention on freedom of expression.

In Norwood v. the United Kingdom, the applicant who had displayed a poster supplied by British National Party in his window bearing the words ‘Islam out of Britain’ aimed at kicking those of Islamic origin and protecting those of British origin was found guilty of perpetrating religious hate. He argued that that his freedom right of freedom of expression had been infringed. The European Court of Human Rights declared that his actions led to hostility towards the Islamic group and this qualified as an aggravated offense. The court further stated that linking a particular group with grave issues like terrorism was not compatible with the fundamental values guaranteed by the European Convention on Human Rights such as tolerance, non-discrimination and social peace. The court thus observed that the act of displaying the poster in his winder had constituted an act prohibited under article 17 of the convention on prohibition of abuse of rights and as such, the applicant waived his protection under article 10 on freedom of expression. The court went ahead to dismiss the application.

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14. Tulkens, F. (2012, October). When to say is to do Freedom of expression and hate speech in the case-law of the European Court of Human Rights. In Strasbourg: Seminar on Human Rights for European Judicial Trainers.
15. Pastors v. Germany, the applicant
16. Kiska, R. (2012). Hate speech: a comparison between the European Court of Human Rights and the United States Supreme Court jurisprudence. Regent UL Rev., 25, 107.
17. Glimmerveen and Haqenbeek v. the Netherlands
18. Norwood v. the United Kingdom

The European court of Human Rights further pronounced itself in the case Surek (no. 1) v. Turkey. The applicant who was the leader of a weekly review had published letters condemning military actions in some parts of Turkey against their struggle for freedom and independence. He was convicted of spreading propaganda by provoking hatred and enmity among the populace. He argued vehemently that his right to freedom of expression had been infringed. The European Court on Human Rights observed that article 10 on Freedom of expression had not been infringed for the reasons that the applicant’s action of publishing the letters amounted to an invitation for bloody revenge and that some people had identified some of the military officers and this could lead to physical violence. Being that he was not himself involved in the publication, the court expressed that he was vicariously liable for the actions and omissions of his journalists and editorial panel. As such was liable for their actions. The court thus dismissed the application and concluded that the applicant could not benefit from the provisions of article 10 of the convention on freedom of expression.

In Leroy v. France, the applicant was found guilty of condoning terrorism activities publicly though a publication in a weekly newspaper. The applicant was a cartoonist who did this by representing the attack by terrorist on the twin tower through cartoonist drawings with a caption “we all dreamt of it…Hamas did it.” He complained and argued that his freedom of expression had been breached. The court of Human Rights held that there was no violation or contravention of article 10 of the European Convention on Human Rights since the applicant was complicit in condoning terrorism that the very convention frowned upon. The court put more emphasis on the caption that followed the drawing and declared that the applicant had abused his freedom. As such, article 10 on freedom of expression did not apply to him.



Conclusion

From the foregoing, it is clear that the European Court of Human Rights has not shied away from pronouncing itself on matters hate speech. All indicators point to the fact that the court frowns upon hate speech. The fact that these decisions are binding gives the court more reasons to develop further jurisprudence on this area.

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19. Surek (no. 1) v. Turkey
20. Oetheimer, M. (2009). Protecting freedom of expression: The challenge of hate speech in the European court of human rights case law. Cardozo J. Int'l & Comp. L., 17, 427.
21. Leroy v. France

Bibliography

Statutes

Article 10 of the ECHR

Article 17 of the ECHR

Articles 10 and 17 of the European Convention on Human Rights

Cases

Belkacem v Belgium (2017) ECHR 253

Garaudy v. France

Glimmerveen and Haqenbeek v. the Netherlands

Leroy v. France

M’Bala M’Bala v. France

Norwood v. the United Kingdom

Pastors v. Germany, the applicant

Pavel Ivanov v Russia

Roj TV A/S v. Denmark

Surek (no. 1) v. Turkey

Vejdeland and Others v Sweden (application no. 1813/07)

W.P. and Others v. Poland (no. 42264/98)

Williamson v. Germany

Books/journals

Bleich, E. (2014). Freedom of expression versus racist hate speech: Explaining differences between high court regulations in the USA and Europe. Journal of Ethnic and Migration Studies, 40(2), 283-300.

Janssen, E. (2015). Faith in public debate: on freedom of expression, hate speech and religion in France & the Netherlands. Intersentia.

Kiska, R. (2012). Hate speech: a comparison between the European Court of Human Rights and the United States Supreme Court jurisprudence. Regent UL Rev., 25, 107.

Oetheimer, M. (2009). Protecting freedom of expression: The challenge of hate speech in the European court of human rights case law. Cardozo J. Int'l & Comp. L., 17, 427.

Tulkens, F. (2012, October). When to say is to do Freedom of expression and hate speech in the case-law of the European Court of Human Rights. In Strasbourg: Seminar on Human Rights for European Judicial Trainers.