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Damned if they do, Damned if they don’t: the European Court of Human Rights and the Protection of Religion from Attack

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Abstract

The approach of the European Court of Human Rights to cases of religiously offensive expression is inconsistent and unsatisfactory. A critical analysis of the Court’s jurisprudence on blasphemy, religious insult and religious hatred identifies three problems with its approach in this field. These are: the embellishment and over-emphasis of freedom of religion, the use of the margin of appreciation and the devaluing of some forms of offensive speech. Nevertheless, it is possible to defend a more coherent approach to the limitation of freedom of expression under the European Convention of Human Rights, designed to protect religious liberty in a narrower category of cases.

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Notes

  1. Sunday Times v UK (1979) 2 EHRR 245: ‘… a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able, if need be with appropriate advice, to foresee to a degree that is reasonable in all the circumstances, the consequences which a given action may entail ….’

    And see Hashman v Harrup v UK (2000) EHRR 24, finding that the power of magistrates under the Justices of the Peace Act 1361 of ‘binding over’ hunt saboteurs to keep the peace and be good behaviour based on a finding that behaviour had been ‘contra bonos mores’ was too vague to be ‘prescribed by law’.

  2. See, e.g. Handyside v UK (1980) 1 EHRR 737.: ‘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 or morals varies from time to time and from place to place…’(para 48).

  3. Wingrove v. United Kingdom (1996) 24 EHRR 1, para 58.

  4. For a brief survey including non-European and Islamic states, see Temperman 2008, pp. 519–526.

  5. Venice Commission 2008a, para. 24. For recent analysis of the position in 12 European countries: Venice Commission 2008b.

  6. Venice Commission 2008a, para. 89.

  7. Racial and Religious Hatred Act 2006.

  8. Criminal Justice and Immigration Act 2008, s. 79(1). .

  9. Green v The City of Westminster Magistrates’ Court [2007] EWHC (Admin) 2785.

  10. Defamation Act 2009 (Ire.), Section 36. The offence consists of uttering material "grossly abusive or insulting in relation to matters held sacred by any religion", with the intent and result of "outrage among a substantial number of the adherents of that religion". It carries a maximum fine of €25,000. There is a defence for work of ‘genuine literary, artistic, political, scientific, or academic value’. The law’s sponsor, Dermot Ahern, explained that the purpose was to resolve a legal conundrum without holding a constitutional referendum: the Irish Constitution (Art.. 40.6.1) requires there to be an offence of blasphemy but the High Court had found the common law offence to be too uncertain to satisfy constitutional requirements in Corway v Independent Newspapers [1999] 4 IR 484 (Ahern 2009).

  11. In a number of contemporary Islamic states it appears that the purpose of the offence is to uphold religious orthodoxy: Temperman 2008.

  12. Otto-Preminger Institute v. Austria (1995) 19 EHRR 34.

  13. Para 48. And see likewise the earlier admissibility decision from the European Commission of Human Rights in the Gay News case: Gay News Ltd. and Lemon v. United Kingdom, 7 May 1982, 5 European Human Rights Reports 123 (1982), Appl. No. 8710/79, para. 11.

  14. Para. 52. In a Joint Dissenting Opinion Judges Palm, Pekkanen and Makarczyk argued that:

    ‘The Convention does not, in terms, guarantee a right to protection of religious feelings. More particularly, such a right cannot be derived from the right to freedom of religion, which in effect includes a right to express views critical of the religious opinions of others’ (Joint Dissenting Opinion of Judges Palm, Pekkanen and Makarczyk, para. 6).

  15. Para 47.

  16. (1997) 24 EHRR 1. Earlier, the Commission had held that the Gay News prosecution did not raise an admissible Convention claim: Gay News Ltd and Lemon v. United Kingdom (1983) 5 EHRR 123.

  17. This took about half the duration of the film: hence the BBFC’s decision to deny a certificate, rather than suggesting a cut. http://www.sbbfc.co.uk/CaseStudies/Visions_of_Ecstasy.

  18. Wingrove v UK, para. 52.

  19. Wingrove, para. 58.

  20. Ibid., para. 60.

  21. I.A. v Turkey, (Appl. No. 42571/98), 13 December 2005.

  22. Para. 29.

  23. Para. 31.

  24. Joint Dissenting Opinion of Judges Costa, Cabral Barreto and Jungwiert, para. 8.

  25. Klein v Slovakia, Appl. 72208/01, ECtHR, Fourth Section, October 31, 2006.

  26. Paragraphs 53 and 54.

  27. Giniewski v France, Appl. 64016/00, judgment of 31 January 2006. On the proceedings in the French courts see Mbongo 2009, pp. 231–232.

  28. Para. 51.

  29. Para. 52.

  30. Art. 20(2).

  31. 38 GAOR Supp 40 UN Doc A/38/40, Annex VI (1983).

  32. Recommendation (97)20.

  33. Gűndűz v Turkey (2005) 41 EHRR 59, para. 40.

  34. Norwood v DPP [2003] EWHC 1564. The prosecution preceded the introduction of the offence of incitement to religious hatred under the Racial and Religious Hatred Act 2006.

  35. The concept of religiously-aggravated crime was introduced by the Anti-Terrorism Crime and Security Act 2001, s. 39. The test to be applied is whether the words or action were ‘motivated (wholly or partly) by hostility towards members of a… religious group based on their membership of that group’.

  36. [2003] EWHC 1564, para. 33.

  37. Norwood v UK, Appl 23131/03, ECtHR, 16 November 2004.

  38. Gűndűz v Turkey (2005) 41 EHRR 59, para. 51.

  39. A similar outcome was reached by invoking Article 10.2 in Soulas & Others v. France Appl. 15948/03, 10 July 2008, where the Court found there was no violation following the applicant’s conviction for inciting hatred and violence against Muslim communities from northern and central Africa arising from the publication of a book.

  40. Otto-Preminger Institut v Austria (1995) 19 EHRR 34 at p. 56.

  41. It appears in Protocol 1, article 1 to the Convention.

  42. Otto-Preminger Institut, para. 47 (italics added). And see Taylor 2005, p. 86.

  43. It may be unwittingly borrowed from Article 8, which refers to respect for private life, home and correspondence.

  44. Reira Blume v Spain (1990) 50 EHRR 632.

  45. Leela Förderkreis E V and Others v Germany, Appl. no. 58911/00 (6 November 2008).

  46. R v. Chief Metropolitan Magistrate,ex p Choudhury [1991] QB 429.

  47. Choudhury v. United Kingdom, Appl. No. 17439/90, (1991) 12 HRLJ 172.

  48. 97 members of the Gldani congregation of Jehovah’s witnesses and 4 others v. Georgia, Appl. No. 71156/01 (3 May 2007).

  49. Para. 134.

  50. Wingrove, para. 58.

  51. Murphy v Ireland, para. 72.

  52. Ibid., para. 67.

  53. Ibid., para. 81.

  54. For example, Lingens v Austria (1986) 8 EHRR 407 (defamation of a prominent politician); Observer and Guardian Newspapers v UK (1992) 14 EHRR 153 (injunctions preventing publication of ‘Spycatcher’ allegations); Thorgeirson v Iceland (1992) 14 EHRR 843 (allegations of police brutality); Jersild v Denmark (1994) 19 EHRR 1 (documentary about group of extreme right-wing skinheads, including interviews with the men); Goodwin v UK (1996) 22 EHRR 123 (protecting a journalist’s sources).

  55. For example, Muller v Switzerland (1991) 13 EHRR 212 (confiscation of sexually explicit paintings did not violate Art, 10); S and G v UK Appl, No 17634 (1991) (the ‘Foetus earrings’ case).

  56. Murphy v. Ireland, Appl No 44179/98, 10 July 2003.

  57. United Christian Broadcasters Ltd v. United Kingdom, Appl No 44802/98, 7 November 2000.

  58. Handyside v UK (1979-80) 1 EHRR 737.

  59. Ibid., para. 49.

  60. Cohen v California 403 US 15 (1971).

  61. Günduz v. Turkey, para. 41; Jersild v. Denmark (judgment of 23 September 1994), Series A no. 298, para. 35.

  62. ‘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 on any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.’

  63. In some early decisions Article 17 was applied in the case of speech advocating racial discrimination: Glimmerveen v. the Netherlands, 8348/78, 18 D&R 187.

  64. Garaudy v. France 65831/01, ECHR 2003-IX.

References

  • Ahern, Dermot. 2009. Position of blasphemy in our Constitution cannot be ignored. Irish Times, May 1, 2009; http://www.irishtimes.com/newspaper/opinion/2009/0501/1224245748066.html.

  • Ahdar, Rex, and Ian Leigh. 2005. Religious freedom in the liberal state. Oxford: Oxford University Press.

    Book  Google Scholar 

  • Cram, Ian. 2009. The Danish cartoons, offensive expression and democratic legitimacy. In Extreme speech and democracy, ed. Ivan Hare, and James Weinstein, 311–330. Oxford: Oxford University Press.

    Google Scholar 

  • Doe, Norman, and Russell Sandberg. 2008. The strange death of blasphemy. Modern Law Review 71(6): 971–986.

    Article  Google Scholar 

  • Geddis, Andrew. 2004. You can’t say “God” on the radio: freedom of expression, religious advertising and the broadcast media after Murphy v Ireland. European Human Rights Law Review 2004(2): 181–192.

    Google Scholar 

  • Hare, Ivan. 2009. Blasphemy and incitement to religious hatred: free speech dogma and doctrine. In Extreme speech and democracy, ed. Ivan Hare, and James Weinstein, 289–310. Oxford: Oxford University Press.

    Google Scholar 

  • Harris, David, Michael O’Boyle, and Colin Warbrick. 2009. Law of the European Convention on Human Rights, 2nd ed. Oxford: Oxford University Press.

    Google Scholar 

  • Keane, David. 2007. Attacking hate speech under Article 17 of the European Convention on Human Rights. Netherlands Quarterly of Human Rights 25(4): 641–663.

    Google Scholar 

  • Letsas, George. 2007. A theory of interpretation of the European Convention on Human Rights. Oxford: Oxford University Press.

    Book  Google Scholar 

  • Mahoney, Paul. 1997. Universality versus subsidiarity in the Strasbourg case law on free speech: Explaining some recent judgments. European Human Rights Law Review 1997(4): 364–379.

    Google Scholar 

  • Mbongo, Pascal. 2009. Hate speech, extreme speech and collective defamation in French law. In Extreme speech and democracy, ed. Ivan Hare, and James Weinstein, 221–236. Oxford: Oxford University Press.

    Chapter  Google Scholar 

  • Taylor, Paul. 2005. Freedom of religion: UN and European human rights law and practice. Cambridge: Cambridge University Press.

    Book  Google Scholar 

  • Temperman, Jeroen. 2008. Blasphemy, defamation of religions and human rights law. Netherlands Quarterly of Human Rights Law 26(4): 517–545.

    Google Scholar 

  • Parliamentary Assembly of the Council of Europe. 2007. Recommendation 1805 (2007) on ‘Blasphemy, religious insults and hate speech against persons on grounds of their religion’. Text adopted by the Assembly on 29 June 2007 (27th Sitting).

  • Venice Commission. 2008a. Report on the relationship between freedom of expression and freedom of religion: The issue of regulation and prosecution of blasphemy, religious insult and incitement to religious hatred, Study 406/2006, adopted by the Venice Commission at its 76th Plenary Session, 17–18 October 2008.

  • Venice Commission. 2008b. Analysis of the domestic law concerning blasphemy, religious insult and inciting religious hatred in Albania, Austria, Belgium, Denmark, France, Greece, Ireland, Netherlands, Poland, Romania, Turkey, United Kingdom on the basis of replies to a questionnaire, Study No. 406/2006, DL-AD(2008)026add2.

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  1. Durham Law School, Durham University, 50 North Bailey, Durham, DH1 3ET, UK

    Ian Leigh

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Leigh, I. Damned if they do, Damned if they don’t: the European Court of Human Rights and the Protection of Religion from Attack. Res Publica 17, 55–73 (2011). https://doi.org/10.1007/s11158-011-9143-5

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