Dr David Keane is Senior Lecturer in Law at Middlesex University.
The global reaction to the trailer for the film The Innocence of Muslims has prompted the banning of the video-sharing website Youtube in three States, Afghanistan, Bangladesh and Pakistan, with Council of Europe member Russia mooting such a move. Similarly the publication of the Charlie Hebdo cartoons of the Prophet Mohammad in France, and the resulting international protests, appear to reignite questions of religious defamation and freedom of expression generated by Jyllands-Posten in 2006. To a certain extent the arguments appear unchanged, but there are elements to these recent controversies worth exploring.
Charlie Hebdo has already been in the French courts, in 2007, but was acquitted, while the Danish Public Prosecutor decided not to pursue criminal proceedings against Jyllands-Posten. Yet the debate this time around seems less strident in terms of freedom of expression. The BBC points to a somewhat divided French press, albeit one that emphasises freedom of expression within the parameters of the law, with one paper asking whether these are “some cartoons too many”. This is significant given that newspapers of all political colours are the frontline on freedom of expression. Guy Birenbaum on the Huffington Post (only available in French) writes: “Come on Charlie, just between ourselves, you don’t have the feeling that this is old hat? Already seen, already read? Where is the subversion, the insolence, and most of all, the humour?” He concludes that mocking Islam has become something of a national sport in France and as a result has lost its subversive value. In this atmosphere, a prosecution appears a little more possible.
Such a prosecution would almost certainly be challenged before the European Court of Human Rights. Article 10 of the European Convention reads: “1. Everyone has the right to freedom of expression… without interference by public authority … 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society… for the protection of the reputation or rights of others (…)”
In order to uphold the cartoonists’ rights under Article 10(1), the Court would have to go against its past jurisprudence and rule the interference unnecessary under Article 10(2). That would mark a new departure in terms of the European approach to hate speech, which has, perhaps understandably, been marked by the World War II experience and consistently upheld convictions for speech which attacks racial, ethnic or religious groups, or denies wartime atrocities.
There have been relatively few cases in the European Court of Human Rights on hate speech. This is because usually such cases do not pass the admissibility stage. The earliest example, Glimmerveen and Hagenbeek v. The Netherlands , involved the members of a Dutch far-right party who passed out leaflets calling for an ethnically homogenous state. They were prosecuted, and their claim of a violation of Article 10 ECHR was rejected by the European Commission at the admissibility stage. The decision was based on Article 17, the ‘abuse of rights’ clause, rather than Article 10. Article 17 reads: “Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein (…)”
The subsequent admissibility decision in Kuhnen v. Germany , similarly outlining a pamphleteer’s desire for German racial unity, was rejected on the basis of Article 10 and Article 17, with Article 17 used as a guiding provision while making the decision under Article 10. Thus the interference in the Article 10(1) right was justified under Article 10(2), although the Commission had regard to Article 17.
A series of French cases decisively shifted the approach to Article 17. In Lehideux and Isorni v. France , the Court carved out a particular role for Article 17: Holocaust denial. The plaintiffs were prosecuted for glorifying the achievements of Marshall Pétain in a Le Monde advertisement. France argued that the interference was justified under Article 17 and Article 10(2). The Court ruled that the offending document sometimes omitted important historical facts, “but does not belong to the category of clearly historical facts – such as the Holocaust – whose negation or revision would be removed from the protection of Article 10 by Article 17”. Since Lehideux, Article 17 is applied with strict scrutiny to cases of Holocaust denial only. Thus in Garaudy v. France , the plaintiff was prosecuted for a book which wrote about the “myth of the Holocaust”. The application was deemed inadmissible, as the intervention was held to be justified under Article 17.
What is the significance of using Article 17 instead of Article 10? The result is an absence of a balancing process. Article 10 cases take the right to freedom of expression in Article 10(1), and weigh this against the interests in Article 10(2). This is found for example in the Jersild v. Denmark  case, in which a journalist was prosecuted for relaying the opinions of a group of racist youths known as the ‘Greenjackets’. While prosecution of the youths would have been justified under Article 10(2), prosecution of the journalist was not held to be necessary given the serious context of the piece, which was a relevant investigation into far-right movements in Denmark. This is a rare example of a hate speech conviction passing the admissibility stage and being upheld by the Court. There is no such balancing process under Article 17; speech is restricted solely because of its content.
Consequently Europe exhibits a three-tiered approach to hate speech. At the top is Holocaust denial; it is severely restricted under Article 17, with no ‘balancing process’ taking place. In the middle is racist speech; it is protected under Article 10(1) but states are justified interfering with that protection provided they meet the criteria of Article 10(2). This necessitates a ‘balancing process’, seen in the Jersild case, although it should be noted that most instances of racist speech would not pass the admissibility stage. Finally there is religious intolerance, or religious defamation, seen in the Danish cartoons, in Charlie Hebdo and on the Youtube trailer for the Innocence of Muslims. If Denmark had prosecuted Jyllands-Posten, would the magazine have succeeded in invoking their Article 10(1) right to freedom of expression? The answer at present would appear to be no, under past rulings such as the Otto Preminger Institut v. Austria  decision, although unlike cases of racist speech, such religion cases will pass the admissibility stage.
One further decision of relevance is I.A. v. Turkey , in which the Court upheld a prosecution of the author of a novel, The Forbidden Phrases, which contained in the Court’s description “an abusive attack on the Prophet of Islam”. It held in a close four votes to three against a violation of Article 10, in which the joint dissenting opinion noted, in reference to its precedents, that “the time has perhaps come to ‘revisit’ this case-law”. I.A. can also be distinguished in that it involved Turkey, where the Court has been reluctant to involve itself in any domestic decision involving religion or indeed secularism, and the fact that it predates the ‘Danish cartoons’ and the pan-European investiture of symbolic freedom of expression credentials in such caricatures.
A final word on Youtube; the Human Rights Committee recently issued General Comment 34 on freedom of expression. It makes an important point in relation to internet sites and Article 19(3) of the International Covenant on Civil and Political Rights, which allows interference with freedom of expression for the protection of the reputation or rights of others:
“Permissible restrictions generally should be content-specific; generic bans on the operation of certain sites and systems are not compatible with paragraph 3.”
This seems to indicate that a generic ban on Youtube cannot be justified under Article 19(3) ICCPR. Yet an interesting question is if a government has requested the removal of specific content, as is the case with The Innocence of Muslims, which the server or provider has refused, whether it is then justified in imposing a generic ban. Turkey has imposed a generic ban on Youtube in the past, and even the Turkish President disagreed with it. Again the past jurisprudence of the Court would appear to support such a ban if it were the only way of removing blasphemous material. A potential Russian Youtube ban would make an interesting test.
There is a disconnection between the perception that religious intolerance is protected by a common European standard on freedom of expression, and the caselaw from the Court, which clearly indicates that it is not. Furthermore the enclosure of Article 17 for Holocaust denial appears to privilege the criminalisation of this form of expression, removing any balancing process. What may happen is that caricatures of the Prophet Mohammad change the European approach to hate speech, which has been firmly settled since 1945.