The CERD stands firm against racist hate speech: Jallow v. Denmark

The Committee on the Elimination of Racial Discrimination (‘CERD’ or ‘Committee’) is well known for its progressive interpretation of Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The provision requires states to “condemn all propaganda and all organizations which attempt to justify or promote racial hatred and discrimination in any form” to combat racist hate speech.  In a line of cases concerning political speech – Jewish Community of Oslo et al v. Norway in 2005, Gelle v. Denmark in 2006, Adan v. Denmark in 2010 and finally TBB Turkish Union in Berlin/Brandenburg v. Germany in 2013,  the Committee made it no secret that it does not agree with national prosecutors and courts as to how to balance the protection of freedom of expression with combatting racist hate speech (also discussed on this blog).

The recent case of Jallow v. Denmark consolidates the CERD’s firm stance on the interpretation of Article 4 in the context of satirical art. In this blog post, I show how Jallow has offered important doctrinal guidance on two key criteria for the assessment of racist hate speech: harmful effect and harmful intent. I also argue, however, that the CERD failed to discuss the role of satire in the context of hate speech and it would benefit from more clarity as to how it employs its doctrine of deference to national authorities, in order to amplify its interpretive authority on racist hate speech.

An exhibition in Danish Parliament

Jallow v. Denmark was brought before the CERD by Momodou Jallow – former spokesperson for the National Association of Afro-Swedes. It concerned five pictures by the Swedish artist D.P. displayed at the premises of the Danish Parliament as part of an exhibition organized by the Danish People’s Party. Admission to the exhibition was controlled.

In one of the pictures, Mr. Jallow was depicted as being hung by the neck from a bridge with the text “Hang on Afrofobians”.   Another picture showed Mr. Jallow as a slave running away from his owner which included the texts “Our n…. (omitted by author of the blogpost) slave has run away” and “He disappeared / last Saturday 16 April and goes by the name of Mamadou Jallow / If you know his whereabouts or have seen him” and a phone number.

A third picture had an image of Adolf Hitler with the text: “Not only N…. (omitted by the author of the blog post) have dreams”. A fourth showed a black person with a liquorish pipe with the text “this is not a crackN….. (omission by the author of the blogpost) or is it?” The fifth picture included images and names of two Roma community leaders in Denmark with the text: “Gypsy crime is a good thing.”

All five pictures were exhibited with explanatory texts based on the interviews made with D.P.. These texts explained specific events giving content to these pictures, D.P.’s purpose and the earlier decisions of the Swedish courts convicting D.P. of defamation and incitement to hatred. The reprints of these pictures were sold at the exhibition hall (see further par. 2.4).

Mr. Jallow first complained against D.P. and the organizers of the exhibition to the State Prosecutor of Copenhagen. The prosecutor decided that the pictures were not “threatening, humiliating or degrading” within the meaning of Article 266(b) of the Danish Criminal Code. According to the Prosecutor, although some of the expressions were degrading at first sight, they could not be assessed in isolation. She held that taking into account the fact that they were exhibited with explanatory texts and were satirical in nature, they contributed to social debates on freedom of expression, racism, and a possible ban on liquorish pipes.

The CERD disagreed with the Danish Prosecutor.  It found the lack of proportional measures on the exhibition constituted a violation of Article 4 (a) (duty to make a punishable offence of all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin), in conjunction with Article 6 (right to remedies). The CERD’s decision, in particular, relied on two doctrinal pillars a) individual and collective harmful effects to establish the harm of racist hate speech and b) the motives of the organizers based on the absence of their clear disassociation from the racist content and the presence of efforts to further disseminate the content.

Harmful effects: Individual and collective dimensions

In establishing the harm of hate speech, the Committee focused on both individual and collective effects and held that both existed in the present case.

Concerning individual effects, the Committee emphasized the role of Mr. Jallow as a publicly known human rights defender. Accordingly, “[d]epicting him on a ‘wanted sign’, and in the context of a lynching, conveys a message of intimidation and can be understood as incitement to discriminatory measures, as well as to violence.” (par. 7.7) The Committee further held that the same reasoning applies for the Roma community leaders (par. 7.7). Additionally, according to the Committee, some of the pictures constituted “racist ad hominem attacks” which are “particularly harmful and dangerous and go beyond any acceptable limits of a debate in a democratic society.” (par. 7.9)

The CERD noting that any hate speech not only has individual, but also collective harmful effects further held that, “racist hate speech sends a message of hostility and intolerance to anyone who shares the identity or characteristic of the person targeted.” (par. 7.7) It is therefore imparting a message of hostility and intolerance that creates a direct or immediate effect on the community. In addition, the collective harm can also have more indirect and potential consequences. As put by the CERD, communities “may feel stigmatised and rejected, potentially resulting in community tensions and social isolation” (par. 7.7)

This two-level analysis of harmful effects is not new in the Committee’s case law. For instance, in Gelle v Denmark, it found that the statements associating the people of Somali origin with rapists and pedophiles were not only offensive towards the applicant, but also formed negative generalizations about a group of people “based solely on their ethnic or national origin and without regard to their particular views, opinions or actions.” (par. 7.4) But Jallow is more precise on potential harmful effects of racist hate speech on communities.

Harmful intent: Disassociation and further dissemination

In dismissing the complaint, the State Prosecutor of Copenhagen reasoned that the pictures contributed to a social debate, namely, racism, freedom of expression and ban on liquorish pipes. However, the Committee did not consider that contributing to these debates were the only motives of the organizers for two reasons. First, although the pictures were displayed with an explanatory text, the organizers did not disassociate themselves from the racist content. Second, selling reprints of the pictures facilitated further dissemination of racist ideas beyond the context of the exhibition. Therefore, the Committee concluded that the purpose was also to disseminate the pictures (par. 7.9).

Here, the fact that the organizers did not overtly distance themselves from the artist was influential in determining their motives. It is good to recall the earlier Danish case before the ECtHR, Jersild v. Denmark, concerning the criminal conviction of a journalist under Article 266(b) of the Danish Criminal Code for publishing an interview with a racist group called the Greenjackets. In Jersild, while the majority of the ECtHR found that “taken as a whole, the feature could not objectively have appeared to have as its purpose the propagation of racist views and ideas” (par. 33), the dissenting members required a clear disassociation from the racist content instead of a sense of disapproval derived from the context of the interview (Joint Dissenting Opinion of Judges Ryssdal, Bernhardt, Spielmann and Loizou, par. 3). The CERD’s position in Jallow aligns with these dissenting voices at the ECtHR in the 1990s.

Satirical art and deference: Where does the CERD Stand?

Whilst this is the first decision of the CERD focusing on satirical art and racism, it does not sufficiently engage with the role of satire. In particular, it does not assess whether satire is an aggravating or mitigating factor in the assessment of harmful effects and intent. It only notes in passing that art is protected as a form of expression without discussing the satirical nature of the pictures (par. 7.6). On this point, the ECtHR famously held that “satire is a form of artistic expression and social commentary and, by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate” and “any interference with an artist’s right to such expression must be examined with particular care” (Vereinigung Bildender Künstler v. Austria, par. 33). Despite this heightened protection for satirical art, the ECtHR also noted later that satire is not always a mitigating factor: “the blatant display of a hateful and anti-Semitic position disguised as an artistic production is as dangerous as a fully-fledged and sharp attack” (M’Bala M’Bala v. France, par. 40). It is unfortunate that the Committee did not provide further guidance as to how it understands the role of satirical art under Article 4.

The Committee’s stance on deference to national authorities also begs question. The Committee  has consistently put forward that its role is not to review the interpretation of facts and national law made by domestic authorities, “unless the decisions are manifestly absurd or unreasonable” (General Recommendation No 35: Combating Hate Speech, par. 17) For instance, in Zentralrat Deutscher Sinti und Roma et al. v. Germany, it did not find a violation because the measures of German authorities were not “manifestly arbitrary” nor did they amount to a “denial of justice” (par.7.7).

In Jallow, the Committee appreciated the “thorough analysis” and noted “diligence” of the State Prosecutor, recognizing that the mere fact that the investigation did not lead to criminal prosecution or conviction does not mean that the obligations under Article 4(a) were violated (par. 7.13). However, the Committee maintained that when a speech falls under Article 4(a), the state party needs to take effective measures and “the mere conduct of an investigation does not suffice” (par. 7.13). According to the Committee, Denmark failed to take a proportionate response to this incident which qualifies as racist hate speech (par. 7.13). It is therefore puzzling why the Committee found a violation at the end if it believed that the prosecutor was thorough and diligent in reviewing the case. It is also unclear which measures were at the disposal of Danish authorities in this particular case within the scope of Article 4 of the ICERD rather than conducting an effective investigation into the incident.

The Future of Article 4

Jallow v. Denmark has strengthened the Committee’s firm stance on its interpretation of Article 4 to combat racist hate speech. The Committee in this case also clarified its position on harmful effects and intent of hate speech. However, the Committee’s reasoning also has important shortcomings. The lack of a clear discussion of satire as a form of expression by the Committee and its unclear stance on the deference doctrine, in particular, might have a dampening impact on the Committee’s interpretative authority over national authorities. Given the criticism already attracted by its previous leading case TBB Turkish Union Berlin/Brandenburg v. Germany and Germany’s resistance to adopting criminal measures in response to racist political speech, the CERD needs not only firm, but also meticulously reasoned decisions to engender wider engagement with its Article 4 case-law amongst state parties and regional courts.

The future of Article 4 would be clearer if the CERD differentiates the “gravest forms” of hate speech which openly call for violence and therefore do not enjoy the protection of freedom of expression and “less grave forms” which insult, ridicule or slander individuals or groups – as in the case of Jallow (see ECtHR’s differentiation in Lilliendahl v. Iceland, par. 34-36). For the latter speech, the CERD must engage with the standard freedom of expression review by providing more contextual assessment of necessity and proportionality of Article 4 measures.