Jeroen Temperman, Erasmus University Rotterdam Religious Sensitivities in Pluralist Societies & Freedom of Expression: Conceptualizing the Limits of Extreme

Jeroen Temperman, Erasmus University Rotterdam

Religious Sensitivities in Religious Sensitivities in Pluralist Societies & Pluralist Societies &

Freedom of Expression: Freedom of Expression:

Conceptualizing the Limits Conceptualizing the Limits of Extreme Speechof Extreme Speech

Counter-Defamation Approach

(i) Seeks to shift the emphasis from

protection of the rights of individuals to protection of religions per se;

(ii) Introduces grounds for limitation of human rights that are not –and should not become- recognized by international human rights law.


European Court HR & Religious Defamation

Three objectionable trends:

i. Development of abstract notion of a ‘right not to be insulted in one’s religious feelings’

ii. ECtHR fails to realize that there is no conflict between FoE & FoRB in abstracto:

• actual (rare) clashes need to be substantiated;• proper, critical balance must be struck

iii. ECtHR sanctions discriminatory laws


(i) A ‘right not to be insulted (i) A ‘right not to be insulted in one’s religious feelings’?in one’s religious feelings’?

“the right of citizens not to be offended in their religious feelings by publications” (Gay News)

“the respect for the religious feelings of believers as guaranteed in Article 9 [of the European Convention on Human Rights]” (Otto Preminger)

“the right of citizens not to be insulted in their religious feelings” (Otto Preminger)

“the right of citizens not to be insulted in their religious feelings” (Wingrove)

“[need to] to ensure respect for the religious doctrines and beliefs of others” (Murphy)


(ii) conflict between FoE & (ii) conflict between FoE & FoRB FoRB in abstracto?in abstracto?

E.g.: İ.A. v. Turkey:

Freedom of expression (publisher) restricted on the basis of existing ground for limitation (“right of others to respect for their freedom of thought, conscience and religion”); however,

no inquiry whatsoever into the Q as to whether the two rights indeed conflict in this particular case

Balancing rights without a legal necessity to do so might actually lead to infringements


(iii) ECtHR sanctions ECtHR sanctions discriminatory lawsdiscriminatory laws

E.g. Wingrove & Gay News:

“It is true that the English law of blasphemy only extends to the Christian faith. … The uncontested fact that the law of blasphemy does not treat on an equal footing the different religions practised in the United Kingdom does not detract from the legitimacy of the aim pursued in the present context”


Way Forward: Re-Conceptualizing the Abuse of

Right DoctrineNo equivalent of Art. 20(2) ICCPR in the European Convention

Article 17 ECHR: 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.

Caveats/suggestions:This approach does not cover all hate speech casesAbuse of rights concern to be incorporated into

consideration of the merits, not as admissibility issue

Article 20(2) International Article 20(2) International Covenant on Civil and Political Covenant on Civil and Political

RightsRights

“Any advocacy of…religious hatred that constitutes incitement to

discrimination, hostility or violence shall be prohibited by

law.”


Human Rights Committee & Article 20(2) ICCPR

Decisive factors:i. the actual speech (not subjective

reaction by targeted group): element of incitement or not?

ii. the reaction or potential reaction by third persons vis-à-vis the group targeted by the speech/publication: fundamental rights of others threatened or not?

E.g. Human Rights Committee, Malcolm Ross v. Canada (2000)

Religious Hate Speech Legislation

(Religious) Hate Speech Bills, e.g. UK, Australia, Switzerland Generic Penal Code provisions on incitement, e.g. Brazil,

Canada, Croatia, Denmark, Finland, Germany, India, Netherlands, New Zealand, Serbia, Sweden

‘Denial laws’; e.g. Austria, Belgium, France De facto application of defamation laws to counter religious

hate speech (e.g. Iceland, Norway): important role judge Purely a matter of jurisprudence: liberal democracies with no

hate speech legislation (e.g. USA): ‘clear and present danger’, ‘imminent action’ doctrine

Regulations tackling specific forms of religious hate speech

Way forward

Further conceptualization of the state duty (art. 20(2) ICCPR) to prohibit religious hate speech; more particularly:

To conceptualize the prohibition of ‘religious hate speech’ as a notion of international law;

To identify legal benchmarks and factors that help determine the phenomenon religious hate speech;

To identify state obligations emanating from the internationally codified religious hate speech prohibition;

To consider safeguards against governmental abuse of hate speech legislation.


Conceptualization of ‘Religion Hate Speech’

Prohibition

Scope:

Hate speech vis-à-vis a specific religious group;

Religion-inspired hate speech.


Draft-GC on Art. 19 & 20 ICCPR State obligations under 20(2):

Legislative action required Ex post facto punishment and/or early warning system?

Definition of key terms: Advocacy: “By advocacy is meant public forms of expression that

are intended to elicit action or response” Hatred: “By hatred is meant intense emotions of opprobrium,

enmity and detestation towards a target group” Incitement: “Incitement refers to the need for the advocacy to be

likely to trigger imminent acts of discrimination, hostility or violence. It would be sufficient that the incitement relate to any one of the three outcomes: discrimination, hostility or violence”.

Relation to Art. 19:, Restrictions based on 20(2) require also to comply with system of 19(3)

Relation to religious defamation/blasphemy bills: To be repealed (para. 48)

Example (Geert Wilders case): Art. 137d Dutch Penal Code

“Any person who publicly, orally or in writing or image, incites to hatred or discrimination against persons…on account of their religion or belief…may be punished with imprisonment of maximally one year or a third category fine.”

Documents

Jeroen Temperman, Erasmus University Rotterdam Religious Sensitivities in Pluralist Societies & Freedom of Expression: Conceptualizing the Limits of Extreme