Freedom to insult? Balancing freedom of expression with religious tolerance in ECHR case law

Professor Steve Peers,
University of Essex
A recent judgment
of the European Court of Human Rights has raised again the question of whether
there should be limits on free speech when someone might be offended by it – in
this case, concerning the Muslim faith. It’s a good opportunity to explain the context
of the case and assess what – if any – limits should be acceptable on free speech
in such cases.
The saga of ES v Austria began at a public seminar on “Basic Information on Islam”
organised by the institute of a right-wing Austrian political party. An
undercover journalist complained to the police about some of the comments made
at the seminar (in particular about Mohamed as inclined to pedophilia), and the
speaker was prosecuted. She was ultimately convicted and ordered to pay a small
fine as a penalty, for breach of Article 188 of the Austrian Criminal Code:
 “Whoever, in circumstances where his or her
behaviour is likely to arouse justified indignation, publicly disparages or
insults a person who, or an object which, is an object of veneration of a
church or religious community established within the country, or a dogma, a
lawful custom or a lawful institution of such a church or religious community,
shall be liable to up to six months’ imprisonment or a day-fine for a period of
up to 360 days.”
 The conviction was upheld on appeal throughout
the national courts, and the applicant then complained to the European Court of
Human Rights (ECtHR) that her right to freedom of expression under Article 10
of the European Court of Human Rights (ECHR) had been infringed. Since her free
expression had obviously been penalised, the crucial issue in the case was
whether the interference with that right was justified under Article 10(2)
ECHR, which provides:
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.”
The restriction in this case was “prescribed
by law” (as can be seen above), and so the issue is whether the restriction was
“necessary in a democratic society”. The Court began its assessment by
reiterating (from its prior case law) that freedom of speech is “one of the
essential foundations of a democratic society” and applies not just to
statements that are “regarded as inoffensive or as a matter of indifference,
but also to those that offend, shock or disturb”. Article 10(2) provides “little
scope…for restrictions on political speech or on debate on questions of public
interest”. In particular, believers in a religion, “irrespective of whether
they do so as members of a religious majority or a minority, therefore cannot
expect to be exempt from criticism. They must tolerate and accept the denial by
others of their religious beliefs and even the propagation by others of
doctrines hostile to their faith.”
Having said that, though, the “duties
and responsibilities” referred to in Article 10 include (referring again to
case law):
“the general
requirement to ensure the peaceful enjoyment of the rights guaranteed under
Article 9 [freedom of religion] to the holders of such beliefs including a duty
to avoid as far as possible an expression that is, in regard to objects of
veneration, gratuitously offensive to others and profane….Where such
expressions go beyond the limits of a critical denial of other people’s
religious beliefs and are likely to incite religious intolerance, for example
in the event of an improper or even abusive attack on an object of religious
veneration, a State may legitimately consider them to be incompatible with
respect for the freedom of thought, conscience and religion and take
proportionate restrictive measures….In addition, expressions that seek to
spread, incite or justify hatred based on intolerance, including religious
intolerance, do not enjoy the protection afforded by Article 10 of the Convention.”
In this context, prior case law had concluded that ECHR Contracting States “enjoy
a certain margin of appreciation” in this field – meaning that the ECtHR does
not intensively review how they strike the balance between freedom of speech
and the protection of religious sensibilities, in particular as there is no “uniform
European conception” of how to strike this balance. Moreover, ECHR States also “have
the positive obligation under Article 9 of the Convention of ensuring the
peaceful co‑existence of all religions and those not belonging to a religious
group by ensuring mutual tolerance”. (A “positive obligation” is a legal
requirement for the State to take
action to protect individual rights, not just to refrain from action such as banning speech or prosecuting people
for their comments). A State “may therefore legitimately consider it necessary”
to limit the free speech of some which is “judged incompatible with respect for
the freedom of thought, conscience and religion of others”, although ultimately
the ECtHR exercises some review over
how a State strikes that balance in each particular case.
Prior case law has turned on
whether a value judgment has sufficient factual proof to support it, and the
ECtHR’s role is not “to take the place of the national authorities”, but to
review if their decisions are based “on an acceptable assessment of the
relevant facts…and whether the interference corresponded to a “pressing social
need” and was “proportionate to the legitimate aim pursued””, in light of the “content
of the statements” and “the context in which they were made”. Also, “the nature
and severity of the penalty imposed are also factors to be taken into account”.
If the national authorities have already applied such a balancing exercise in
line with these criteria, “the Court would require strong reasons to substitute
its view for that of the domestic courts”.
Applying those principles to this
case, the subject matter was “particularly sensitive”, and so “the domestic
authorities had a wide margin of appreciation” because “they were in a better
position to evaluate which statements were likely to disturb the religious
peace in their country”. The seminars in question were public, and Austrian law
did not simply “incriminate all behaviour that is likely to hurt religious
feelings or amounts to blasphemy, but additionally requires that the circumstances
of such behaviour were able to arouse justified indignation, therefore aiming
at the protection of religious peace and tolerance.” The national courts “extensively
explained why they considered that the applicant’s statements had been capable
of arousing justified indignation”, and the ECtHR agreed with the lower court “that
presenting objects of religious worship in a provocative way capable of hurting
the feelings of the followers of that religion could be conceived as a
malicious violation of the spirit of tolerance, which was one of the bases of a
democratic society”.
The Court went on to agree with
the national courts that in this case, value judgments did not have “sufficient
factual basis”, and rejected the argument that “a few individual statements had
to be tolerated during a lively discussion”. In the judges’ view, “it is not
compatible with Article 10 of the Convention to pack incriminating statements
into the wrapping of an otherwise acceptable expression of opinion and deduce
that this would render the statements exceeding the permissible limits of
freedom of expression passable.” Finally, the Court took into account the very
modest sanctions applied to the speaker.
As noted at the outset, it’s
necessary to explain the context of this case – given that it seems to be
widely misunderstood. First of all, the ECtHR is not an “EU court” applying EU
law, but the court of 47 European countries applying the ECHR, an international
treaty separate from EU law. EU law touches on religious issues when it comes
to religious discrimination in employment (see the case law discussed here),
animal welfare issues, or persecution of refugees on grounds of religion – but has
nothing to do with the issue of prosecution for offending religious
Secondly, the ECtHR is in no
sense applying “Sharia law” here. The complaint was not made by a Muslim
organisation, but by an undercover journalist. The Austrian law was not enacted
solely to protect the Islamic faith, but other faiths too; and it was not motivated
by Islamic doctrine. The ECtHR distinguishes the Austrian law from a ban on “blasphemy”,
considering that it requires an additional element. Nothing in the judges’
reasoning refers to “defaming” Mohamed (although the Austrian Supreme Court is
quoted as using that term).  Nor does the
Court require other countries to
follow Austria’s lead: although it refers to positive obligations to protect
freedom of religion, it does not spell out what they are, for the obvious
reason that the applicant was not arguing a failure by Austria of any positive
obligations in this case.
Thirdly, as my summary of the
judgment sets out, there’s nothing unusual or exceptional about the underlying legal
reasoning in the Court’s approach here. It’s applying its long-standing
doctrine related to the balance between freedom of expression and freedom of
religion. This is indeed an area where the “margin of appreciation”, giving
considerable deference to States’ choices, has long been applied widely,
although States do not always win. (Have a look at the cases linked to in the
judgment, or the summary in this fact
, for more details: note that there are judgments arguably deferential
to Christianity, not just Islam).
Finally, on the same point, it should
be noted that the Court, sometimes criticised for being activist, is in this
case conversely criticised for being deferential
to States. The judges leave the remedy for those who criticise the law in
Austria (or similar laws elsewhere) as the political process in Austria, rather
than the remote court in Strasbourg. But those who usually criticise foreign
judges’ interference now seem disappointed that those foreign judges didn’t
interfere to effectively endorse their own criticism of Islam.
Assessment of the judgment
Although some of the Court’s
critics seem to have misunderstood the context of the judgment, I would agree
that there is a lot in the judgment to criticise. What I would question here is
both the Court’s application of its “margin of appreciation” doctrine to the
facts of this case, and its failure to reconsider that doctrine in general. On
the first point, while I agree that the small fine is relevant, it’s odd that
the Court however fails to consider the absence of any complaint by a Muslim organisation
as such, given that its reasoning turns on the importance of the objective of
ensuring religious peace. Its distinction between marrying one child and a
preference for children in general comes across as sophistry. And its concern
that anyone could have attended the political seminar overlooks the broader
context of an Internet full of critics of Islam: if the problem is a forest, does
it make sense to prosecute an individual tree?
On the Court’s failure to
reconsider its doctrine in general, there’s a procedural point here: the
judgment was delivered by a small Chamber of few judges, not a Grand Chamber
with many more; and only the Grand Chamber has the authority to reconsider
long-standing jurisprudence. (The applicant can request the Grand Chamber to
review this Chamber judgment). But I would hope that the Grand Chamber has the
opportunity to do so, and uses it. Here’s why.
As a confirmed agnostic who
attends Catholic mass, I can see the conflict of rights here in personal terms.
Faith is at the core of many people’s personal identity. It inspires the spiritual,
explains the inexplicable, and consoles the inconsolable; it provides a
community to celebrate the breaking of fasts, the liberation from slavery or the
miracle of resurrection. It celebrates birth, codifies life, and commemorates
death – yet offers hope of immortality.
Yet I can see why some wish to
condemn one faith, or all faiths. There’s no shortage of abuse, discrimination,
persecution, hatred or violence based on religion. And some generally believe
that all religions are nonsense: that in a scientific age, with lots of
suffering before death that we should be concerned about, it’s long past time
to go cold turkey on the opiate of the masses.
My answer to the potential conflict
of rights is to respect others’ right to believe what they want to believe (or
not believe). But others have a different view. And freedom of speech is not
just the freedom to calm people down: it’s also the freedom to wind people up,
turn people on, or piss people off.
The flaw with the Court’s
traditional case law is that it places too much priority on the right not to be
offended, and not enough on the right to offend. Indeed, the Court quotes – but
does not explicitly follow – a report
from the Venice Commission, which recommends that States should abolish the
offence of blasphemy or religious insult (the latter, with added elements, seems
to be the basis of its recent judgment) and rely solely instead on incitement
to hatred. I would go further still, and criminalise only incitement to hatred which
advocates violence or other criminality.
So “Muslims are vile; let’s
attack them” should be criminal; as should the attack itself, or the criminal
damage entailed by a swastika drawn on a synagogue. I take the point that
swastikas don’t draw themselves, and that if someone merely says “Muslims are
vile”, his listeners may well add “let’s attack them” in their own minds and
act on it. But there needs to be a line drawn somewhere; a whole range of
statements could trigger a potentially
violent listener, so we have to exercise some judgement as to which statements
should reasonably be criminalised.
Moreover, incriminating many
critics of Islam (or others considered intolerant) who don’t directly advocate violence
doesn’t solve the problem of intolerance; it fuels it, allowing those critics to parade themselves as free
speech advocates, or even martyrs.  Prosecuting
them for non-violent statements simply attracts more attention to their views.
(This is also an answer to the valid “it’s easy to advocate freedom of speech
when you’re not the target”
Two important qualifications,
though. First of all, the freedom of expression is not a right to a platform:
there’s no legal obligation for the mainstream media or social networks, for
instance, to give any particular view uncritical attention, or any attention at
all. Secondly, freedom of expression works both ways (that’s rather the point):
it’s equally applicable to those who want to mock or react to Islamophobes or
their ilk, and criticising someone’s
views is not the same as “silencing” them. There’s nothing quite as pathetic as
(for instance) the sight of the supporters of Trump’s crassness and intolerance
crying crocodile tears in reaction to a comedian making a joke about his press
secretary’s eye-shadow.
Ultimately, though, the problem
with banning non-violent criticism of religion isn’t just about tactics; it’s
about the paradox of intolerance. It’s logically impossible to preach tolerance
while saying that dissenting views should be banned – even if those views are
not very tolerant themselves. Fundamentally, a good idea – whether religious or
secular – should speak for itself, not shut its critics up.  
Barnard & Peers: chapter 9
Photo: Islamic Centre, Vienna; photo credit:

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