Session 3 – Conflicts between the right to equality and the freedom of expression

Anne Weber, Dr. iur.

International standards of limiting the freedom of expression to combat racism and discrimination

Inst

rum

ents

Relevant rights

Freedom of expression

Prohibition of discrimination

Freedom of religion and to manifest one’s religion

Respect for private and family life

Prohibition of abuse of rights

Prohibition of advocacy of hatred or incitement to discrimination

Universal Declaration of Human Rights

Article 19 – Article 1 – Article 2 – Article 7

– Article 18 – Article 29

Article 12

International Covenant on Civil and Political Rights

Article 19 – Article 2 § 1 – Article 26

– Article 18 – Article 27

Article 17 Article 5 Article 20

International Convention on the Elimination of All Forms of Racial Discrimination

Article 5 d) viii)

Article 1 Article 5 d) viii)

Article 4

European Convention on Human Rights

Article 10 – Article 14 – Article 1, Protocol Nr.12

Article 9 Article 8 Article 17

Framework Convention for the Protection of National Minorities

Article 9 Article 4 – Article 5 – Article 6 – Article 7 – Article 8

Article 21

Charter of Fundamental Rights of the European Union

Article 11 Article 21 – Article 10 – Article 22

Article 7 Article 54

International Covenant on Civil and Political Rights

General Comment No. 34 - Article 19 (21 July 2011) Any limitations for the purpose of protecting morals

must be understood in the light of universality of human rights and the principle of non-discrimination. (§32)

The Committee has considered that a State party complied with the test of necessity when it transferred a teacher who had published materials that expressed hostility toward a religious community to a non-teaching position in order to protect the right and freedom of children of that faith in a school district. (§33 – Ross v. Canada)

Article 10 §1 of the European Convention on Human Rights

“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.”

Article 10 v. Article 17 ECHR

Article 17 – 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.”

Norwood v. the United Kingdom, 16 November 2004

Article 10 of the European Convention on Human Rights

Is the expression covered by Article 10? Is there an interference by public authority? Prescribed by law? Which pursue one or more of the legitimate

aims set out in Article 10 § 2? And which is necessary in a democratic

society to achieve those aims? (margin of appreciation)

Article 10 – Incitement to hatred

Aim pursued by the applicant (Jersild v. Denmark, 23 September 1994 – propagation of racist views and ideas?)

Context of the case (Leroy v. France, 2 October 2008 – date of publication, region)

Content of the remarks (questions of public interest, political debate)

Position of the applicant: it is crucial for politicians, when expressing themselves in public, to avoid comments that might foster intolerance (Féret v. Belgium, 16 July 2009)

Dissemination and potential impact of the remarks (press, audiovisual media)

Nature and seriousness of the interference (prison sentence v. modest nature of the fine)

Article 10 – Blasphemy, attacks on religious convictions

No uniform European conception of the requirements of the protection of the rights of others in relation to attacks on their religious convictions

Wide margin of appreciation (Otto-Preminger-Institut v. Austria, 20 September 1994)

European Commission for Democracy through Law (Venice Commission)

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

- Incitement to hatred, including religious hatred, should be the object of criminal sanctions.

- It is neither necessary nor desirable to create an offence of religious insult (that is, insult to religious feelings) simpliciter, without the element of incitement to hatred as an essential component.

- The offence of blasphemy should be abolished and should not be reintroduced.

ECRI General Policy Recommendation N°7: National

legislation to combat racism and racial discrimination

IV. Criminal law18. The law should penalise the following acts when committed intentionally: a) public incitement to violence, hatred or discrimination, b) public insults and defamation or 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; 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;

e) the public denial, trivialisation, justification or condoning, with a racist aim, of crimes of genocide, crimes against humanity or war crimes;

f) the public dissemination or public distribution, or the production or storage aimed at public dissemination or public distribution, with a racist aim, of written, pictorial or other material containing manifestations covered by paragraphs 18 a), b), c), d) and e);

g) the creation or the leadership of a group which promotes racism ; support for such a group ; and participation in its activities with the intention of contributing to the offences covered by paragraph 18 a), b), c), d), e) and f);

h) racial discrimination in the exercise of one’s public office or occupation.

Thank you for your attention!