The Strasbourg Judges’ Paternalistic View on Free Speech

Read the german version here.

In the landmark case of Handyside v. United Kingdom (1976), the European Court of Human Rights (ECtHR) famously held that Article 10 of the European Convention on Human Rights (ECHR) on the right to freedom of expression protects not only ideas that are ‘favourably received’ but also those that ‘offend, shock or disturb.’ Yet, in the decades since, the Court has struggled to reconcile this robust protection of expression with the rise of laws against hate speech. In practice, the Court has developed a restrictive and inconsistent jurisprudence that often grants states wide latitude to ban offensive speech, thereby eroding the very right it once proclaimed.

Infantilisation of citizens One of the most striking aspects of the Court’s case law is its lack of a coherent conceptualization of hate speech. The Court has used the term in over twenty judgments but has never offered a precise meaning or, at least, a consistent understanding of the term. In Gündüz v Turkey (2004), the ECtHR noted that ‘concrete expressions constituting hate speech, which may be insulting to particular individuals or groups, are not protected by Article 10 of the Convention.’ The Court’s reference to insults as a framework through which speech can be restricted is of grave concern.

Article 10 of the European Convention on Human Rights

Freedom of expression

1. 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.
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, 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 or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

In addition, the ECtHR’s stance on ‘insults’ has not been too clear. Ibragim Ibragimov and Others v Russia (2018) involved the banning of a book by a Muslim scholar because it constituted extremist literature. The Court ruled in favour of the applicant on the grounds that the book was moderate and non-violent. Importantly, it noted that ‘merely because a remark may be perceived as offensive or insulting by particular individuals or groups does not mean that it constitutes hate speech.’ Atamanchuk v Russia (2020), involved an application made by a journalist/politician after he was convicted of referring to non-Russians as criminals. Here, the ECtHR took an opposite view to the issue of insult when compared to the above case, noting that insult, ridicule and slander are all reasons for authorities to restrict speech. One might say that the first case concerned religion as doctrine, while the second targeted people directly. Yet the Court did not draw this line. Instead, it treated both as matters of insult, assessing them only by their presumed impact on individuals.

This uncertainty has enabled states to police speech far beyond incitement to hatred. For example, in Féret v Belgium (2009), the leader of a nationalist party was banned from office for distributing pamphlets warning against the “Islamisation” of Belgium. The Court accepted that such language could generate ‘distrust or hatred’ among the public, even without the explicit advocacy of violence. The dissenting judges warned that the majority was infantilising citizens, assuming they were incapable of responding to political arguments without succumbing to xenophobia.

The above-described status quo has trickled down to several cases where the limitation of expression was considered legitimate due to its alleged insulting nature. To illustrate this, cases involving homophobic and/or transphobic speech, such as Vejdeland v Sweden (2012) and Lilliendahl v Iceland (2020), have all noted that insults, ridicule and slander, even when not accompanied by a call for violence, all fall within the ambit of hate speech and can be prohibited. It is worth noting that all three aforementioned cases involved the imposition of criminal penalties. These cases fall under the prism of what I refer to as the low threshold hatred paradigm, which includes cases that include prejudicial or offensive speech but were still deemed to fall outside the scope of free speech protection.

A hierarchy of historical suffering

Unlike the International Covenant on Civil and Political Rights, the ECHR does not directly prohibit certain types of speech but, instead, incorporates limitation grounds to the right to freedom of expression. Article 10 broadly protects expression, subject to restrictions that must be ‘necessary in a democratic society.’ Article 17 prohibits the abuse of rights. The latter has been used by the Court to exclude entire categories of expression from legal assessment under the limitation grounds of Article 10. A super majority of Article 17’s application is seen in Holocaust denial cases and, more recently, in a handful of cases involving racist and homophobic speech, from the scope of protection altogether.

Article 17 of the ECHR

Prohibition of abuse of rights

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 or at their limitation to a greater extent than is provided for in the Convention.

Moreover, the use of Article 17 in the face of genocide has varied. Specifically, Perinçek v Switzerland (2015) concerned the applicant’s criminal conviction for publicly disputing the occurrence of the Armenian genocide, referring to it as an “international lie” during several conferences in Switzerland. The ECtHR held that the applicant’s statements did not constitute an abuse of rights under Article 17 of the Convention, but concluded that his conviction did not violate his right to freedom of expression under Article 10.

In distinguishing this case from Holocaust denial cases, the ECtHR put forth several unconvincing reasons for the differential treatment of the Armenian genocide. For example, in the Swiss case, the ECtHR looked at temporal and geographic elements noting that the events in question had occurred approximately ninety years earlier and that the applicant’s remarks were made in Switzerland concerning incidents that had taken place in the Ottoman Empire. This contextual analysis contrasts sharply with the approach taken in cases involving Holocaust denial, which are automatically considered to fall outside the protection by the Convention.

The Court justified its departure from prior rulings restricting Holocaust denial by asserting that it serves as a primary driver of anti-Semitism. On the contrary, in Perinçek, the Court did not perceive the applicant’s statements as a form of incitement to hatred or intolerance against the Armenians. In Holocaust denial cases, the Court has never conducted an analysis to determine whether the speech constituted incitement to hatred or intolerance. Instead, it has consistently presumed a direct link between Holocaust denial and hatred, citing historical and contextual reasons for this automatic association.

This contrasting approach underscores a significant inconsistency in the Court’s treatment of genocides. The differentiation in treatment of the Armenian genocide effectively creates an implicit hierarchy of historical suffering, diminishing the recognition of victims of the Armenian genocide compared to Holocaust victims. Some judges criticized this unequal treatment by pointing out that ‘the sufferings of an Armenian because of the genocidal policy of the Ottoman Empire are not worth less than those of a Jew under the Nazi genocidal policy…’

In addition to the above hierarchization of historical memory and pain, the severe impact of the use of Article 17 on speech rights must not be undermined. In reaching its decisions on cases involving the right to freedom of expression, the ECtHR usually conducts a legal analysis under Article 10. However, the use of Article 17 has seemed to gain traction beyond what was originally intended by its drafters.

The use of Article 17 to proscribe ‘hate speech’ warrants careful consideration. Its application significantly influences the exercise of freedom of expression by precluding the speech in question from undergoing an Article 10 assessment and, consequently, the accompanying process of balancing competing interests. One of the inherent problems with the use of Article 17 in speech cases is the ‘frightening possibility of a democracy becoming too intolerant and, therefore, self-destructive.’

An engine of censorship?

As things stand, the ECtHR prohibits even offensive or prejudicial speech. It reserves the use of Article 17 for one genocide but not another. It defers too readily to national authorities. On this point, between 1979 and 2020, only 23 out of 60 cases were decided in favour of the applicant. Many of these involved nothing more than insults with no accompanying elements of incitement to violence. In this way, the Court risks becoming an engine of censorship rather than a defender of liberty.

Reclaiming the right to offend, shock, or disturb is not about legitimizing hatred. It is about preserving the democratic necessity that freedom of expression must be the rule, and restrictions the exception. Without this, the promise of Article 10 risks becoming an empty shell, and the voices of dissent and minorities may be silenced in the name of protecting them.