Professor Steve Peers, University of Essex
A recent ruling by the European Court of Human Rights has reignited the debate about whether freedom of speech should have limitations, particularly when it comes to potentially offensive remarks targeting religious beliefs, such as those of the Muslim faith. This presents an opportunity to analyze the case’s background and determine what, if any, restrictions on free speech are justifiable in such instances.
Judgment
The case, ES v Austria, originated from a public seminar titled “Basic Information on Islam,” organized by an institute affiliated with a right-wing Austrian political party. An undercover journalist reported certain comments made during the seminar to the police, specifically regarding offensive remarks about the Prophet Muhammad. As a result, the speaker was prosecuted and ultimately found guilty of violating Article 188 of the Austrian Criminal Code. She received a small fine for her actions.
The conviction was upheld through appeals in the national courts. The applicant then took her case to the European Court of Human Rights (ECtHR), claiming an infringement of her right to freedom of expression as protected under Article 10 of the European Convention on Human Rights (ECHR). As her freedom of speech had been demonstrably penalized, the central question was whether this interference was justified under Article 10(2) ECHR. This article allows for restrictions on freedoms of expression if they are prescribed by law and deemed necessary in a democratic society.
Because the restriction in this case was “prescribed by law,” the crucial issue was whether it was “necessary in a democratic society.” The Court emphasized that freedom of speech is a cornerstone of a democratic society, encompassing not just agreeable statements, but also those that offend, shock, or disturb. It stated that Article 10(2) offers limited room for restrictions on political discourse or discussions on matters of public concern. Importantly, the court noted that individuals holding religious beliefs, regardless of majority or minority status, cannot be shielded from criticism.
However, the Court also highlighted that the “duties and responsibilities” associated with free speech include ensuring the peaceful practice of religious freedom. This includes a responsibility to avoid expressions that are gratuitously offensive or profane toward objects of religious veneration. When expressions cross the line into incitement of religious intolerance, a State may justifiably view them as conflicting with the freedom of thought, conscience, and religion, and implement proportionate restrictive measures. Additionally, expressions that promote hatred based on intolerance, including religious intolerance, are not protected under Article 10 of the Convention.
In these matters, the ECtHR acknowledges a degree of “margin of appreciation” for ECHR Contracting States, meaning it does not subject their methods of balancing free speech and the protection of religious sensitivities to intense scrutiny. This is mainly because there’s no single “European conception” of achieving this balance. Furthermore, ECHR States are obligated to actively ensure peaceful coexistence among all religions and those outside religious groups by promoting mutual tolerance.
The Court ultimately found the seminar’s subject matter “particularly sensitive” and thus afforded the national authorities a wide “margin of appreciation.” They reasoned that local authorities were better positioned to judge which statements were likely to disrupt religious harmony within their country. The Court agreed with the lower court that presenting religious figures or objects in a deliberately provocative manner, potentially causing offense to followers, could be considered a harmful violation of the spirit of tolerance, a fundamental principle of a democratic society.
The Court concurred with the national courts that value judgments lacked “sufficient factual basis” and rejected the argument that provocative statements should be tolerated within the framework of a lively debate. It asserted that embedding potentially criminal statements within an otherwise acceptable expression of opinion does not make those statements permissible under freedom of expression principles. Lastly, the Court factored in the lenient sanctions imposed on the speaker.
Comments
Context
It is important to clarify the context of this case, as it appears to be widely misinterpreted. To begin, the ECtHR is not an “EU court” applying EU law. Rather, it serves as the judicial body for 47 European countries, upholding the ECHR, which is separate from EU law. While EU law addresses religious matters concerning workplace discrimination, animal welfare, and the persecution of refugees based on religion, it does not deal with prosecutions for causing offense to religious sentiments.
It’s also crucial to understand that the ECtHR, in this instance, is not applying “Sharia law.” The complaint wasn’t lodged by a Muslim organization but by a journalist working undercover. The Austrian law in question wasn’t designed solely to safeguard Islam but to protect all faiths. The ECtHR distinguishes the Austrian law from a complete ban on blasphemy, noting that it necessitates an additional component. The Court’s rationale doesn’t mention “defaming" the Prophet Muhammad, though it does cite the Austrian Supreme Court using that term. It’s also important to note that the Court isn’t mandating that other nations follow Austria’s example. Although it acknowledges a responsibility to safeguard religious freedom, it refrains from specifying how this should be done.
Furthermore, as outlined in the judgment summary, there is nothing unusual or extraordinary about the Court’s legal reasoning in this case. It adheres to its established doctrine concerning the equilibrium between freedom of expression and freedom of religion. This is an area where the “margin of appreciation” principle, which grants considerable leeway to States’ decisions, has been broadly applied, although States don’t always prevail in these cases.
Lastly, on a related note, the Court, often criticized for being excessively activist, is in this case facing criticism for being too deferential to States. The judges leave any redress for those who disagree with the Austrian law (or similar laws elsewhere) to Austria’s political process, rather than intervening. Yet, those who typically criticize what they perceive as foreign judges’ interference now appear disappointed that those judges didn’t intervene to support their stance critical of Islam.
Assessment of the judgment
While some critics of the Court seem to misunderstand the context of this ruling, there are aspects of it that merit scrutiny. Both the Court’s application of its “margin of appreciation” doctrine to the specifics of this case and its reluctance to revisit that doctrine in general are open to question. On the first point, the small fine imposed is relevant, yet it’s strange that the Court neglects to consider the lack of a formal complaint from a Muslim organization, given that its argument centers on the need to maintain religious harmony. Its attempt to differentiate between marrying one child and a general preference for children appears weak. The Court’s concern that anyone could have been present at the political seminar disregards the wider context of the internet, which is rife with critics of Islam.
Regarding the Court’s failure to reassess its doctrine, a procedural point arises: the ruling came from a smaller Chamber of judges, not a Grand Chamber, and only the Grand Chamber can revise long-standing jurisprudence. Nevertheless, the Grand Chamber should have the opportunity to review this case and hopefully will seize it.
As someone who identifies as agnostic yet attends Catholic mass, the conflict of rights in this situation is apparent. For many, faith is central to their identity. It inspires spirituality, provides meaning, offers solace, fosters community, and celebrates significant life events.
However, it’s understandable why some might condemn certain faiths or religion as a whole. Religion has been associated with abuse, prejudice, oppression, animosity, and violence. There are those who view religion as nonsensical, particularly in a scientific era.
One way to approach this potential clash of rights is to respect an individual’s right to choose their beliefs, including the choice not to believe. But differing viewpoints exist, and freedom of speech encompasses not just the freedom to appease but also to provoke, to inspire, and yes, to offend.
The Court’s traditional case law has a flaw: it prioritizes the right not to be offended over the right to offend. The Court, while quoting from a report by the Venice Commission that suggests abolishing the offense of blasphemy or religious insult and instead focusing solely on incitement to hatred, doesn’t explicitly endorse this recommendation. It’s arguable that criminalization should be limited to incitement to hatred when it explicitly advocates violence or criminal activity.
Therefore, while calls for violence against Muslims should undoubtedly be criminalized, the line needs to be drawn carefully. Many statements could potentially incite a volatile individual to action, so judicious decisions must be made about which statements warrant criminalization.
Furthermore, criminalizing non-violent criticisms of Islam (or any group deemed intolerant), without a direct call to violence, doesn’t effectively address intolerance; it might even exacerbate it. It allows such critics to portray themselves as champions of free speech, even martyrs. Prosecuting them for non-violent statements could simply amplify their views.
Two important points need to be made. Firstly, freedom of expression is not synonymous with a right to a platform. Neither the mainstream media nor social networks are legally obligated to provide a particular viewpoint, especially a controversial one, with a platform or any attention whatsoever. Secondly, the right to free speech is reciprocal. It extends to those who wish to challenge or respond to Islamophobia or other forms of intolerance. Criticizing an opinion is not the same as silencing it.
Ultimately, the issue with censoring non-violent critiques of religion isn’t simply a matter of strategy; it presents a paradox of intolerance. Advocating for tolerance while simultaneously advocating for the suppression of opposing views, even intolerant ones, is contradictory. The strength of an idea, whether religious or secular, should lie in its merit, not its ability to silence dissent.
Barnard & Peers: chapter 9
Photo: Islamic Centre, Vienna; photo credit: Wien.info