Hate speech and human rights

Introduction

ECHR: Three categories of rights

 

  1. Absolute, limited, and qualified rights

 

In broad terms, Convention rights may be placed into three categories: ‘absolute’ rights capable of no derogation; rights which are expressly or impliedly limited; and rights which are expressly qualified. This is not a precise taxonomy but a way of understanding the nature and structure of the Convention rights.

 

(a)  Absolute rights

Absolute rights under the Convention include the right to life under Article 2 (except in respect of deaths resulting from lawful acts of war), the prohibition on torture under Article 3, the prohibition on slavery and servitude under Article 4(1), and the right not to be subjected to retrospective criminal offences under Article 7(1). No derogations from these articles are permitted under Article 15 and there are no circumstances in which infringements of these rights can be justified in the public interest.

 

(b) Limited rights

Limited rights include Article 5 (right to liberty and security of the person), Article 6 (fair trial rights), Article 12 (right to marry and found a family), Protocol 1, Article 2 (right to an education), and Protocol 1, Article 3 (right to free elections). These rights can be restricted in explicit and finite circumstances as set out in the article itself, or may be subject to restrictions implied by the ECtHR.

 

(c) Qualified rights

The ‘qualified rights’ are those that include a general qualification provision in the second paragraph of the article. They are the rights that most obviously raise the conflicts with the overall interests of society or the rights of others—for example, the right to respect for private life (Article 8), freedom of thought, conscience, and religion (Article 9), freedom of expression (Article 10), freedom of assembly and association (Article 11), and the right to the enjoyment of possessions (Protocol 1, Article 1).

 

‘Qualified rights’ are usually set out in two parts in the text of the Convention. The first paragraph of the article sets out the substantive right, and it is then qualified in the second paragraph. The precise terms of the limitations vary (contrast, for example, Article 10(2) with Article 8(2)), but a restriction will be compatible with the Convention only if it meets the general principles applicable to all restrictions on rights, namely it is ‘in accordance with the law’; the interference is directed towards an identified legitimate aim; and the aim is ‘necessary in a democratic society’ (which encompasses the test of ‘pressing social need’ and proportionality).

 

  1. Positive obligations

 

The principal purpose of the Convention is to protect individual rights from infringement by states, and this is achieved by the imposition of so-called ‘negative’ obligations on the states, which require them to refrain from interference with the rights in question. However, the wording of certain articles also imposes positive duties on the state, such as the obligation under Protocol 1, Article 3 to hold free elections. In addition to these express positive obligations, the ECtHR has recognized that there is a broader need for positive steps to be taken by the state to provide the legal or institutional structures or resources to protect human rights—for example, to provide laws which prevent private parties from infringing individual rights, to provide proper institutional protection from domestic violence, or to provide free legal assistance in criminal cases under Article 6(3)(c), or to enable access to institutions to provide education under Protocol 1, Article 2.

 

Articles 2, 3, 4 and 8 of the European Convention on Human Rights impose positive obligations to protect the substantive rights – whoever is the likely perpetrator.

 

The duty to protect people from violations of human rights and to investigate any harm done is not always properly respected and, historically, law enforcement officials have too often failed to protect vulnerable groups.  The state’s obligations obviously extends to women subjected to domestic violence and sexual assaults, children abused by their carers or others, people with disabilities (especially those with learning difficulties and those resident in institutions), ethnic minorities (especially Roma people), lesbian, gay, bisexual and transgendered people and others.  These failures by the state violate the rights in ECHR and the discriminatory nature of these failures breaches Article 14.

 

Not only is the state required to adopt an adequate system of law to deter and punish individuals guilty of violating the Convention rights of others, but it is also recognized that the police and other relevant public bodies can be under a positive obligation to take reasonable operational measures to prevent a violation of individuals’ rights.

 

When determining whether or not a positive obligation exists, the ECtHR will have regard to ‘the fair balance that has to be struck between the general interest of the community and the interests of the individual, the search for which balance is inherent in the whole of the Convention’.

 

Freedom of expression

Freedom of expression: “constitutes one of essential foundations of such a society, one of the basic conditions for its progress and for the development of every man.” Handyside v UK para 49

Scope of the right

 

Article 10 encompasses the freedom to hold ideas and incorporates the right to receive opinions and information, as well as the right to express them. Article 10(1) encompasses the right to communicate or to express oneself in any medium. Words, pictures, images, emblems and actions intended to express an idea or to present information (such as public protest, demonstration, film, or symbolic acts such as flag-burning) can constitute expression.

Three broad types of expression have been held to attract the protection of Article 10:

(a)        political expression;

(b)        artistic expression; and

(c)        commercial expression.

 

As the ECtHR has emphasized, Article 10(1) does not apply solely to certain types of information or ideas, or forms of expression, and thus the categories of protected expression are not closed.

 

Political expression is broadly defined to include comment on a matter of general public interest. Public interest includes legitimate, robust comment on public figures. Political expression generally receives greater protection than the other forms, though there is no express theoretical basis for this distinction.

 

Commercial expression also attracts the protection of Article 10(1). In particular, commercial speech sometimes also raises matters of legitimate public debate and concern. However, statements made for purely commercial reasons are frequently considered not to contribute to a debate on the public interest and fall ‘outside the basic nucleus protected by the freedom of expression’.

 

The objective of the expression will be critical to determining whether any restriction upon it is proportionate. For example, it will be harder to justify restrictions on racist speech that is intended to inform rather than offend.[1] The ECtHR will also take into account the medium of the publication when assessing whether an interference is proportionate. Television will have greater immediacy and impact than other forms of media, for example. The nature of the expression may also affect the protection given to it by the ECtHR. In Donaldson v UK the Court considered that national authorities were best placed to determine whether certain badges worn by prisoners posed a threat to prison order because the domestic authorities were in a better positive to understand their meaning.[2]

 

Margin of appreciation

 

The ECtHR has claimed that in all cases, it exercises strict supervision of the margin of appreciation because of the crucial importance of the Article 10 right.[3] However, given the cultural sensitivity of much expression, the ECtHR in fact has frequent recourse to this concept in order to defer to the courts of individual Member States, which are closer to the interests to be balanced in any individual Member State. In particular, in cases involving public morals[4] or commercial speech[5] the breadth of the margin is wider than that pertaining in cases involving an issue that affects the general interest, even where a criminal penalty is at issue.[6]

 

The ECtHR set out its reasons for applying a margin of appreciation in relation to cases raising questions of morality in the early case of Handyside v UK. The Court stated:

 

. . . it is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals. The view taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterised by a rapid and far-reaching evolution of opinions on the subject. By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them.[7]

 

Hate speech

However the Court stated “it is particularly conscious of the vital importance of combating racial discrimination in all its forms and manifestations” Jersild v Denmark para 30

In a case which involved the conviction of Jens Olaf Jersild, a Danish journalist, for aiding and abetting in the dissemination of racist statements in a televised interview he had conducted. The statements in question were uttered by members of an extreme right-wing group known as the “Greenjackets” and the journalist was convicted largely because he had failed to explicitly contradict, or distance himself from, the racist and xenophobic statements of the interviewees. The European Court of Human Rights held that Jersild’s conviction was not “necessary in a democratic society” and that it therefore violated his rights under Article 10 of the European Convention on Human Rights. This conclusion rested largely on considerations of context in (news) reporting and the importance of journalistic autonomy for the functioning of democracy. The Court held that the journalist’s right to freedom of expression had been infringed, inter alia, because it was not for the courts to determine which journalistic techniques (e.g. “the methods of objective and balanced reporting”) should be used.

“the Court would emphasise, in particular, that tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. That being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance (including religious intolerance), provided that any “formalities”, “conditions”, “restrictions” or “penalties” imposed are proportionate to the legitimate aim pursued.” Gunduz v Turkey para 40

Definitions

 

“the term “hate speech” shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.” CoE CoM 97(20)

“… tolerance and respect for the equal dignity of all human beings constitute the foundations

of a democratic, pluralistic society. That being so, as a matter of principle it may be

considered necessary in certain democratic societies to sanction or even prevent all

forms of expression which spread, incite, promote or justify hatred based

on intolerance…”

 

(Erbakan v. Turkey, judgment of 6 July 2006, § 56)

Beyond race

 

Art 14 defines the prohibited grounds for discrimination as:

 

“sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

 

Includes sexual orientation (picked up in next session) and disability (see CRPD)

 

Negationism

 

Garaudy v. France 24 June 2003 (decision on the admissibility)

 

The applicant, the author of a book entitled The Founding Myths of Modern Israel, was convicted of the offences of disputing the existence of crimes against humanity, defamation in public of a group of persons – in this case, the Jewish community – and incitement to racial hatred. He argued that his right to freedom of expression had been infringed.

 

The application was declared inadmissible. The Court considered that the content of

the applicant’s remarks had amounted to Holocaust denial, and pointed out that “[d]enying crimes against humanity [was] one of the most serious forms of racial defamation of Jews and of incitement to hatred of them”. Disputing the existence of clearly established historical events did not constitute scientific or historical research; the real purpose was to rehabilitate the National Socialist regime and accuse the victims themselves of falsifying history. As such acts were manifestly incompatible with the fundamental values which the Convention sought to promote, the Court applied Article 17 (prohibition of abuse of rights) and held that the applicant was not entitled to rely on Article 10 (freedom of expression).

 

Note ECHR art 17

“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”

New media

Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems

“The law should clearly define and prohibit direct and indirect racial discrimination.”

“The law should penalise the following acts when committed intentionally:

  1. a) public incitement to violence, hatred or discrimination,
  2. b) public insults and defamation or
  3. c) threats against a person or a grouping of persons on the grounds of their race, colour, language, religion, nationality, or national or ethnic origin;
  4. d) the public expression, with a racist aim, of an ideology which claims the superiority of, or which depreciates or denigrates, a grouping of persons on the grounds of their race, colour, language, religion, nationality, or national or ethnic origin;”

European Commission against Racism and Intolerance, rec 7

Context and the nature of the speaker (journalist, politician etc)

Hate crime v hate speech

Hate crime: a pre-existing crime with a discriminatory motive.

EU COUNCIL FRAMEWORK DECISION 28 November 2008

Principle 1

 

The governments of the member states, public authorities and public institutions at the national, regional and local levels, as well as officials, have a special responsibility to refrain from statements, in particular to the media, which may reasonably be understood as hate speech, or as speech likely to produce the effect of legitimising, spreading or promoting racial hatred, xenophobia, anti-Semitism or other forms of discrimination or hatred based on intolerance. Such statements should be prohibited and publicly disavowed whenever they occur.

 

Principle 2

 

The governments of the member states should establish or maintain a sound legal framework consisting of civil, criminal and administrative law provisions on hate speech which enable administrative and judicial authorities to reconcile in each case respect for freedom of expression with respect for human dignity and the protection of the reputation or the rights of others.

 

To this end, governments of member states should examine ways and means to:

– stimulate and co-ordinate research on the effectiveness of existing legislation and legal practice;

– review the existing legal framework in order to ensure that it applies in an adequate manner to the various new media and communications services and networks;

– develop a co-ordinated prosecution policy based on national guidelines respecting the principles set out in this recommendation;

– add community service orders to the range of possible penal sanctions;

– enhance the possibilities of combating hate speech through civil law, for example by allowing interested non-governmental organisations to bring civil law actions, providing for compensation for victims of hate speech and providing for the possibility of court orders allowing victims a right of reply or ordering retraction;

– provide the public and media professionals with information on legal provisions which apply to hate speech.

 

Principle 3

 

The governments of the member states should ensure that in the legal framework referred to in Principle 2, interferences with freedom of expression are narrowly circumscribed and applied in a lawful and non-arbitrary manner on the basis of objective criteria. Moreover, in accordance with the fundamental requirement of the rule of law, any limitation of, or interference with, freedom of expression must be subject to independent judicial control. This requirement is particularly important in cases where freedom of expression must be reconciled with respect for human dignity and the protection of the reputation or the rights of others.

 

Principle 4

 

National law and practice should allow the courts to bear in mind that specific instances of hate speech may be so insulting to individuals or groups as not to enjoy the level of protection afforded by Article 10 of the European Convention on Human Rights to other forms of expression. This is the case where hate speech is aimed at the destruction of the rights and freedoms laid down in the Convention or at their limitation to a greater extent than provided therein.

 

Principle 5

 

National law and practice should allow the competent prosecution authorities to give special attention, as far as their discretion permits, to cases involving hate speech. In this regard, these authorities should, in particular, give careful consideration to the suspect’s right to freedom of expression given that the imposition of criminal sanctions generally constitutes a serious interference with that freedom. The competent courts should, when imposing criminal

sanctions on persons convicted of hate speech offences, ensure strict respect for the principle of proportionality.

 

Principle 6

 

National law and practice in the area of hate speech should take due account of the role of the media in communicating information and ideas which expose, analyse and explain specific instances of hate speech and the underlying phenomenon in general as well as the right of the public to receive such information and ideas. To this end, national law and practice should distinguish clearly between the responsibility of the author of expressions of hate speech, on the one hand, and any responsibility of the media and media professionals contributing

to their dissemination as part of their mission to communicate information and ideas on matters of public interest on the other hand.

 

Principle 7

 

In furtherance of Principle 6, national law and practice should take account of the fact that:

– reporting on racism, xenophobia, anti-Semitism or other forms of intolerance is fully protected by Article 10, paragraph 1, of the European Convention on Human Rights and may only be interfered with under the conditions set out in paragraph 2 of that provision;

– the standards applied by national authorities for assessing the necessity of restricting freedom of expression must be in conformity with the principles embodied in Article 10, as established in the case law of the Convention’s organs, having regard, inter alia, to the manner, content, context and purpose of the reporting;

– respect for journalistic freedoms also implies that it is not for the courts or the public authorities to impose their views on the media as to the types of reporting techniques to be adopted by journalists.

 

UN authorities

ICCPR Art. 20(2).

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

See HRC GC 34 July 2011

  1. Equality, discrimination and human rights

Primary justification for restrictions on freedom of speech is to ensure vulnerable and oppressed minority groups are protected from further discrimination, oppression, violence and marginalisation. Thus this section proceeds from the basis of these, much needed, protections.  The first in time was CERD.

CERD

Article 4

States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:

(a) Shall declare an offence punishable by law 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, and also the provision of any assistance to racist activities, including the financing thereof;

(b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;

(c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.

CERD GC 35 September 2013

“the Committee recommends that the States parties declare and effectively sanction as offences punishable by law:

(a)    All dissemination of ideas based on racial or ethnic superiority or hatred, by whatever means;

(b)   Incitement to hatred, contempt or discrimination against members of a group on grounds of their race, colour, descent, or national or ethnic origin;

(c)    Threats or incitement to violence against persons or groups on the grounds in (b) above;

(d)   Expression of insults, ridicule or slander of persons or groups or justification of hatred, contempt or discrimination on the grounds in (b) above, when it clearly amounts to incitement to hatred or discrimination;

(e)    Participation in organizations and activities which promote and incite racial discrimination.”

 

“the Committee considers that the following contextual factors should be taken into account:

  • The content and form of speech: whether the speech is provocative and direct, in what form it is constructed and disseminated, and the style in which it is delivered.
  • The economic, social and political climate prevalent at the time the speech was made and disseminated, including the existence of patterns of discrimination against ethnic and other groups, including indigenous peoples. Discourses which in one context are innocuous or neutral may take on a dangerous significance in another: in its indicators on genocide the Committee emphasized the relevance of locality in appraising the meaning and potential effects of racist hate speech.
  • The position or status of the speaker in society and the audience to which the speech is directed. The Committee consistently draws attention to the role of politicians and other public opinion-formers in contributing to the creation of a negative climate towards groups protected by the Convention, and has encouraged such persons and bodies to adopt positive approaches directed to the promotion of intercultural understanding and harmony. The Committee is aware of the special importance of freedom of speech in political matters and also that its exercise carries with it special duties and responsibilities.
  • The reach of the speech, including the nature of the audience and the means of transmission: whether the speech was disseminated through mainstream media or the Internet, and the frequency and extent of the communication, in particular when repetition suggests the existence of a deliberate strategy to engender hostility towards ethnic and racial groups.
  • The objectives of the speech: speech protecting or defending the human rights of individuals and groups should not be subject to criminal or other sanctions.”

“The Committee considers that the expression of ideas and opinions made in the context of academic debates, political engagement or similar activity, and without incitement to hatred, contempt, violence or discrimination, should be regarded as legitimate exercises of the right to freedom of expression, even when such ideas are controversial.”

 

Gender

 

Council of Europe Convention on preventing and combating violence against women and

domestic violence (Istanbul Convention)

 

Article 40 – Sexual harassment

 

Parties shall take the necessary legislative or other measures to ensure that any form of unwanted verbal, non‐verbal or physical conduct of a sexual nature with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment, is subject to criminal or other legal sanction.

 

“A.       Member States

 

  1. Unless already in place, member States should adopt an appropriate legal framework intended to ensure that there is respect for the principle of human dignity and the prohibition of all discrimination on grounds of sex, as well as of incitement to hatred and to any form of gender-based violence within the media.

 

  1. Member States should particularly ensure, through appropriate means, that media regulators respect gender equality principles in their decision making and practice.

 

  1. Member States should support awareness-raising initiatives and campaigns on combating gender stereotypes in the media.

 

Recommendation CM/Rec(2013)1 of the Committee of Ministers to member States on gender equality and media

 

Although the definition refers to a number of groups which are frequently seen to be the targets of hate speech, the list should be read as open-ended, and not limiting the possible targets to these groups alone.

This was made clear in 2011 when the Council of Europe opened for signature the Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention) which binds state parties to prohibit sexual harassment, including “verbal, non-verbal or physical conduct of a sexual nature unwanted by the victim.” The Convention also highlights the participation of the private sector and the media and establishes the obligation of state parties to find ways to encourage private companies and the media to set themselves self-regulatory standards for example to limit any form of verbal or physical abuse of women. This would include hate speech on the grounds of gender, as well as any incitement to violence against women. The obligation on the government here is to set incentives or otherwise encourage the private sector actors to do whatever they can to make sure none of their products, services or advertisements exhibit misogynistic tendencies or gives them a platform to develop.

An additional standard are guidelines adopted in 2013 by the Committee of Ministers of the Council of Europe on gender equality and media. They specifically recommend that “unless already in place, member states should adopt an appropriate legal framework intended to ensure that there is respect for the principle of human dignity and the prohibition of all discrimination on grounds of sex, as well as of incitement to hatred and to any form of gender-based violence within the media.”

 

National actions

A first step member states should take is to ratify the Istanbul Convention and use its provisions to better frame the work of national and local authorities, including police and health officials, around four key principles of the fight against violence: prevention, protection, prosecution and integrated policies.

In addition, member states should also prohibit by law any advocacy of gender hatred that constitutes incitement to discrimination, hostility or violence, as foreseen by the ICCPR for other grounds.

Another tool at their disposal is the Council of Europe campaign “No Hate Speech Movement” which provides means to raise awareness about this problem and help fight back, including through its report page where hate content is monitored and collected by internet users. Member states should participate in and implement this campaign as part of their efforts to tackle hate speech.

Several other measures can be taken. For example, both traditional and online media could better engage in exposing and marginalising sexist discourse. Human Rights Commissioner, 6 March 2014

 

 

Sexual Orientation cases

 

The Venice Commission analysed the “propaganda provisions” from Russia, Ukraine, Moldova and stated:

 

“In the Venice Commission’s opinion, the provisions in question concerning the prohibition of “homosexual propaganda” in the above-mentioned countries are not formulated with sufficient precision as to satisfy the requirement “prescribed by law” contained in the paragraphs 2 of Articles 10 and 11 of the ECHR respectively and the domestic courts have failed to mitigate this through consistent interpretations.”

 

“…measures which seek to remove from the public domain promotion of other sexual identities except heterosexual, affect the basic tenets of a democratic society, characterized by pluralism, tolerance and broadmindedness, as well as the fair and proper treatment of minorities. Thus, such measures would have to be justified by compelling reasons.”

 

“As the provisions under consideration pertain to “homosexual propaganda” or “homosexual promotion” as such, without limiting the prohibition to obscene or pornographic display of homosexuality, or to the demonstration of nudity or sexually explicit or provocative behaviour or material, the provisions cannot be deemed to be justified as necessary in a democratic society to the protection of morals. The same conclusion may be drawn as regards the resolution adopted by the city of Bălţi in the Republic of Moldova, which prohibited the “aggressive propaganda of homosexuality”, since the resolution does not clearly limit the prohibition to obscenity or pornographic display of homosexuality and does not provide any indication of what “aggressive propaganda” may be. Such a prohibition may only be acceptable under ECHR standards if “aggressive” is understood as involving a call or incitation to violence or hatred. In this regard, the Venice Commission reiterates that freedom of expression is also applicable to information and ideas that offend shock or disturb the State or any sector of the population.”

 

The blanket nature of the prohibitions of “propaganda of homosexuality” which are the subject of the present Opinion appears to be incompatible with the above mentioned Handyside principles and the requirement of justification by compelling reasons of measures prohibiting expressions in support of the recognition of sexual minorities’ rights. Sweeping restrictions on the freedom of expression that target not only certain specific types of content (e.g. sexually explicit content such as in Müller v. Switzerland), but apply to all categories of expression, from political discussion and artistic expression to commercial speech, will certainly have serious impact on public debate on important social issues which is central to any democratic society. Thus, the ban cannot be considered necessary in a democratic society for the protection of family in the traditional sense.”

 

“In conclusion, referring also to the conclusions of the United Nations Committee on Human Rights in the case of Fedotova v. the Russian Federation and the Recommendation CM/Rec(2010)5 of the Committee of Ministers91, the Venice Commission considers that the prohibition of “propaganda of homosexuality” as opposed to “propaganda of heterosexuality” or sexuality generally – among minors, amounts to a discrimination, since the difference in treatment is based on the content of speech about sexual orientation and the authors of the provisions under consideration have not put forward any reasonable and objective criteria to justify the prohibition of “homosexual propaganda” as opposed to “heterosexual propaganda”.”

 

Fedotova v Russia

 

“the Committee is of the view that, by displaying posters that declared “Homosexuality is normal” and “I am proud of my homosexuality” near a secondary school building, the author has not made any public actions aimed at involving minors in any particular sexual activity or at advocating for any particular sexual orientation. Instead, she was giving expression to her sexual identity and seeking understanding for it.

 

The Committee notes the State party’s arguments that the author had a deliberate intent to engage children in the discussion of the issues raised by her actions; that the public became aware of the author’s views exclusively on the initiative of the latter; that her actions from the very beginning had an “element of provocation” and her private life was not of interest either to the public or to minors, and that the public authorities did not interfere with her private life (see paragraph 6.2 above). While the Committee recognizes the role of the State party’s authorities in protecting the welfare of minors, it observes that the State party failed to demonstrate why on the facts of the present communication it was necessary, for one of the legitimate purposes of article 19, paragraph 3, of the Covenant to restrict the author’s right to freedom of expression on the basis of section 3.10 of the Ryazan Region Law, for expressing her sexual identity and seeking understanding for it, even if indeed, as argued by the State party, she intended to engage children in the discussion of issues related to homosexuality. Accordingly, the Committee concludes that the author’s conviction of an administrative offence for “propaganda of homosexuality among minors” on the basis of the ambiguous and discriminatory section 3.10 of the Ryazan Region Law, amounted to a violation of her rights under article 19, paragraph 2, read in conjunction with article 26 of the Covenant.

 

 

Vejdeland and Others v. Sweden 9 February 2012

 

The case concerned the applicants’ conviction in 2005 for distributing in an upper secondary school approximately 100 leaflets considered by the courts to be offensive to homosexuals. The applicants alleged in particular that the Swedish Supreme Court convicting them of agitation against a national or ethnic group had constituted a violation of their freedom of expression.

 

The Court concluded that there had been no violation of Article 10 (freedom of expression) of the Convention, as the interference with the applicants’ exercise of their right to freedom of expression had reasonably been regarded by the Swedish authorities as necessary in a democratic society for the protection of the reputation and rights of others. The Court found in particular that the statements in question had constituted serious and prejudicial allegations, even if they had not been a direct call to hateful acts. It further stressed that discrimination based on sexual orientation was as serious as discrimination based on race, origin or colour.

 

The President and one other judge:

“The leaflets at issue undoubtedly contained statements that were totally unacceptable. However, to equate the content of the leaflets to hate speech within the meaning of our case-law needs robust justification. In my opinion, establishing this link by mere reference to the Smith and Grady precedent is not sufficient. Indeed, the offending statements should have been defined more precisely, bearing in mind that, by virtue of Article 17 of the Convention, “hate speech”, in the proper meaning of the term, is not protected by Article 10. A careful, in-depth analysis of the aim of the speech would have been necessary. As already indicated, the Supreme Court considered the aim (starting a debate) as being acceptable. However, the domestic courts should have examined more thoroughly whether behind the apparent aim there was any hidden agenda to degrade, insult or incite hatred against persons or a class of persons on account of their sexual orientation. In the case at hand the Supreme Court, after having admitted that the applicants’ actions had a legitimate purpose, namely starting a debate on a matter of public concern, characterised the impugned statements, not without contradiction, as being “unnecessarily offensive.” It justified the interference by acknowledging the applicant’s right to express his ideas, while at the same time stressing that freedoms and rights went hand in hand with obligations; one of which was “to avoid, as far as possible, statements that are unwarrantably offensive to others, constituting an assault on their rights”.

 

It is submitted that this is a rather vague test which seems to me to be inconsistent with the traditional and well-established case-law of our Court going back to Handyside, namely that “Freedom of expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. …”

 

Still, I agreed, albeit very reluctantly”

 

Mladina D.D. Ljubljana v. Slovenia 17 April 2014

 

This case concerned the applicant publisher’s complaint that it was ordered by the national courts to pay damages to a parliamentarian for insulting him in an article concerning a parliamentary debate on the legal recognition of same sex relationships. The article was published in the publisher’s magazine in June 2005. The applicant complained, in particular, that the national courts had been unwilling to expose harmful, homophobic stereotypes and had not taken into consideration that the exaggerated, satirical style of the article was a reaction to the parliamentarian’s own controversial behaviour.

 

The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It pointed out that the limits of acceptable criticism were wider as regards a politician, especially when he himself had made controversial public statements, than as regards a private individual. Both the context in which the publisher’s article had been written (an intense political debate) and the style used (matching the parliamentarian’s own provocative comments and behaviour) had not been given sufficient consideration by the national courts. The article had not, therefore, been a gratuitous personal attack on the parliamentarian, but a counter-response to the parliamentarian’s own public remarks and, in particular, conduct which could be regarded as a ridicule of homosexuals and promoting negative stereotypes. Accordingly, the national courts had failed to strike a fair balance between the competing interests of protecting the reputation or rights of the parliamentarian and the publisher’s right to freedom of expression.

 

Pending applications

 

Bayev v. Russia (no. 67667/09), Kiselev v. Russia (no. 44092/12) and Alekseyev v.Russia (no. 56717/12)

 

Applications communicated to the Russian Government on 16 October 2013.  These cases concern the prohibition of “homosexual propaganda” in Russia. The Court gave notice of the applications to the Russian Government and put questions to the parties under Article10 (freedom of expression) and Article14 (prohibition of discrimination) of the Convention.

 

 

 

UN

As the UN Special Rapporteurs on the promotion and protection of the right to freedom of opinion and expression, on freedom of religion or belief, and on racism, racial discrimination, xenophobia and related intolerance have argued:

Hate speech is but a symptom, the external manifestation of something much more profound which is intolerance and bigotry. Therefore, legal responses, such as restrictions on freedom of expression alone, are far from sufficient to bring about real changes in mindsets, perceptions and discourse. To tackle the root causes of intolerance, a much broader set of policy measures are necessary, for example in the areas of intercultural dialogue or education for tolerance and diversity. In addition, this set of policy measures should include strengthening freedom of expression.[8]

 

 

Positive duties

Stem from arts 2, 3 and 8

 

Secic v Croatia, 31 May 2007

Two unidentified men approached the group and attacked the applicant. They beat him all over his body with wooden planks while shouting racial abuse. Another two unidentified men, apparently members of the same group, kept watch. Shortly afterwards, the police arrived; they interviewed people at the scene and looked for the attackers.

 

The applicant experienced severe pain and it was found that he had sustained multiple rib fractures. He had to undergo psychiatric treatment as a result of the incident; that he has been diagnosed with post-traumatic stress disorder, characterised by depression, anxiety, panic attacks, fear for his own safety and that of his family, intermittent insomnia and nightmares; and, that he has had an emotional breakdown.  The applicant’s lawyer informed the State Attorney’s Office that the individuals who had attacked the applicant had apparently been engaged in numerous other attacks against Roma people in Zagreb during the relevant period. She stressed that all the incidents had been racially motivated because they had involved both physical attacks and racist verbal abuse. Two of the Roma attacked had told the applicant’s lawyer that they would be able to identify the perpetrators and one of them claimed to have personally witnessed the attack on the applicant. Furthermore, the police had already identified and apprehended these attackers.

 

The ECtHR:

 

  1. The Court reiterates that when investigating violent incidents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State’s obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and is not absolute; the authorities must do what is reasonable in the circumstances of the case (seeNachova and Others, cited above, § 160, ECHR 2005‑…).
  2. The Court considers the foregoing necessarily true also in cases where the treatment contrary to Article 3 of the Convention is inflicted by private individuals. Treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (seeNachova and Others, cited above, with further references).
  3. In the present case it is suspected that the applicant’s attackers belonged to a skinhead group which is by its nature governed by extremist and racist ideology. Both the police and the Government admitted this fact.
  4. The Court considers it unacceptable that, being aware that the event at issue was most probably induced by ethnic hatred, the police allowed the investigation to last for more than seven years without taking any serious action with a view to identifying or prosecuting the perpetrators (see paragraphs 58-60 above).
  5. Consequently, the Court considers that there has been a violation of Article 14 taken in conjunction with the procedural aspect of Article 3 of the Convention.

 

 

ECHR FACTSHEETS

Race

http://www.echr.coe.int/Documents/FS_Racial_discrimination_ENG.pdf

Roma

http://www.echr.coe.int/Documents/FS_Roma_ENG.pdf

Domestic violence

http://www.echr.coe.int/Documents/FS_Domestic_violence_ENG.pdf

Violence against women

http://www.echr.coe.int/Documents/FS_Violence_Woman_ENG.pdf

Slavery and forced labour

http://www.echr.coe.int/Documents/FS_Forced_labour_ENG.pdf

Convention on preventing and combating violence against women and domestic violence (Istanbul Convention)

http://www.coe.int/t/dghl/standardsetting/convention-violence/default_en.asp

 

[1] See Jersild v Denmark (1994) 19 EHRR 1, para 33.

[2] (2011) 53 EHRR 508.

[3] United Christian Broadcasters Ltd v UK App No 44802/98, 7 November 2000.

[4] See, eg Handyside v UK (1976) 1 EHRR 737.

[5] See, eg VGT Verein Gegen Tierfabriken v Switzerland (2002) 34 EHRR 4.

[6] Hertel v Switzerland (1999) 26 EHRR 534.

[7]  (1976) 1 EHRR 737, para 48.

[8]Joint submission by the Special Rapporteur on freedom of opinion and expression, the Special Rapporteur on freedom of religion or belief, and the Special Rapporteur on racism, racial discrimination, xenophobia and related intolerance to the 2011 Expert Workshop on the Prohibition of National, Racial or Religious Hatred, Vienna 9-10 February 2011

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