Freedom of Expression and Religious Hate Speech in Europe

Erica Howard

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351998789
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

In recent years, the Danish cartoons affair, the Charlie Hebdo murders and the terrorist attacks in Brussels and Paris have resulted in increasingly strident anti-Islamic speeches by politicians. This raises questions about the limits to freedom of expression and whether this freedom can and should be restricted to protect the religious feelings of believers. This book uses the case law of the European Court of Human Rights to provide a comprehensive analysis of the questions: whether legal prohibitions of religious hate speech violate the right to freedom of expression; and, whether such laws should be used to prosecute politicians and others who contribute to current debates when they use anti-Islam rhetoric. A well-known politician who uses such rhetoric is Dutch politician Geert Wilders. He has been prosecuted twice for hate speech, and was acquitted in the first case and recently convicted in the second. These prosecutions are used to illustrate the issues involved in drawing the line between freedom of expression and religious hate speech. The author argues that freedom of expression of politicians and those contributing to the public debate should not be restricted except in two very limited circumstances: when they incite to hatred or violence and there is an imminent danger that violence will follow or where it stops people from holding or manifesting their religion. Based on this, the author concludes that the European Court of Human Rights should decide, if it is asked to do so, that Wilders conviction for hate speech violates his freedom of expression.

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1 Freedom of expression and freedom of religion under the European Convention on Human Rights

Introduction

In this Chapter, the fundamental human right to freedom of expression will be examined and this is followed by an analysis of the right to freedom of religion because both rights may be involved in cases of religious hate speech. Both rights are guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), freedom of expression in article 10 and freedom of religion in article 9.

Article 10 ECHR guarantees freedom of expression, which includes the freedom to hold opinions and the freedom to receive and impart information. Article 10(2) determines that this right can be subject to ‘formalities, conditions, restrictions or penalties’ under certain prescribed circumstances as explained below. Article 9 ECHR can be said to guarantee two different rights: the right to freedom of thought, conscience and religion as well as the right to manifest one’s religion. As explained below, the protection for these two rights is different and restrictions or limitations are only allowed in relation to the right to manifest one’s religion. The circumstances under which limitations or restrictions are allowed are clearly prescribed by Article 9(2) ECHR and will be discussed in this chapter. Both the right to freedom of expression and the right to freely manifest one’s religion can thus be restricted and the circumstances under which this can be done are similar, but there are some differences and these will be examined in this chapter. Article 10(2) ECHR, for example, refers to ‘duties and responsibilities’ on those who exercise their right to freedom of expression, but there is no reference to duties and responsibilities in article 9(2) ECHR.

Article 9 ECHR explicitly mentions that the right to freedom of religion includes the right to change one’s religion. As the Research Division of the European Court of Human Rights expresses, ‘with regards to the particular case of religion, freedom of choice is important’.¹ To make the right to choose a religion or to change religion meaningful, open debates about religions and beliefs are essential. In these debates, there must be room for criticism and even denial of other people’s religion or beliefs. As mentioned, the right to freedom of expression in article 10 ECHR includes the right to receive and impart information and this covers debates about religions and beliefs. The right to freedom of expression applies, as will be explained below, not only to expressions that are favourably received but also to those that offend, shock or disturb. But does this mean that any expression, even if it is offensive to religious believers, is protected? Or does the right to freedom of religion include a right to respect for one’s religion or belief and a right not to be offended in one’s religious feelings? These questions will all be examined in this chapter.

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According to the European Court of Human Rights in United Communist Party of Turkey and Others v Turkey:

Democracy is without doubt a fundamental feature of the European public order. . . . That is apparent, firstly, from the Preamble to the Convention, which establishes a very clear connection between the Convention and democracy. . . . In addition, Articles 8, 9, 10 and 11 of the Convention require that interference with the exercise of the rights they enshrine must be assessed by the yardstick of what is ‘necessary in a democratic society’. The only type of necessity capable of justifying an interference with any of those rights is, therefore, one which may claim to spring from ‘democratic society’. Democracy thus appears to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it.²

The European Court of Human Rights has also pointed out that pluralism, tolerance and openness are hallmarks of a democratic society.³ It has also stressed the importance of both the freedom of religion and the freedom of expression for a democratic society. In Handyside v the United Kingdom, the European Court of Human Rights mentioned the principles characterising a democratic society, and stated that ‘freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man’.⁴ So, according to Tulkens, ‘freedom of expression is the sine qua non for a genuine pluralist society. This affirmation of the social function of freedom of expression constitutes the basic philosophy of all the Court’s case law relating to Article 10’.⁵ In a democratic society, open public debate is essential and this requires that people should be free to express their views. As article 10 ECHR states, freedom of expression includes the freedom to impart and receive information and this is of vital importance for an open debate. Weber points out that freedom of expression stands as one of the roots of democracy and continuously fosters it and that ‘without free debates and the freedom to express one’s convictions, a democracy cannot progress or would simply not exist’.⁶ Barendt discusses the arguments for having a free speech principle. One of these is ‘the argument from citizen participation in a democracy’: freedom of expression plays a crucial role in the formation of public opinion.⁷

The European Court of Human Rights has also stressed the importance of freedom of religion for a democratic society. In Kokkinakis v Greece, the Court held:

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As enshrined in Article 9 . . ., freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.⁸

In the same case, the Court also said that it may be necessary, in a democratic society, to place restrictions on this freedom.⁹ And, in subsequent cases, it has pointed out that the state, when it exercises its regulatory power in this sphere, must remain neutral and impartial¹⁰ and that ‘what is at stake here is the preservation of pluralism and the proper functioning of democracy, one of the principle characteristics of which is the possibility it offers of resolving a country’s problems through dialogue’.¹¹ The right to freedom of expression will be examined first, as this is the most important right for the subject of this book.

Freedom of expression

The right to freedom of expression, or freedom of speech, is laid down in article 10(1) ECHR, which states:

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. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.

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It will be clear that this right contains what Grimm calls, ‘both the active and the passive side – freedom to express one’s own opinions and freedom to learn about the opinions of others’.¹² Grimm also writes that only if the right has both these sides can it be said to ‘constitute a comprehensive freedom of communication’.¹³ The right to freedom of expression in both the active and the passive form, in other words, the right to freedom of communication is an important right for a number of different reasons. Barendt defines the free speech principle as ‘a principle under which speech is entitled to special protection from regulation or suppression’.¹⁴ He also writes that ‘a free speech principle need not entail absolute protection for any exercise of freedom of expression. Most proponents of strong free speec...