Scope of Incitement to Hatred/Violence vs. Freedom of Expression
At the onset, it is worth noting that as per the European Court of Human Rights in Cylan v urkey freedom of expression is one of the most vital rights that foster democracy. It is a right that promotes the change and development of an individual and the society at large. Article 10 paragraph 1 of the European Convention on Human Rights guarantees every individual the freedom of expression. It also prohibits the state from granting one a license for broadcasting information or ideas. However, the right to freedom of expression has a profound interaction with incitement of violence and hate. This interaction has been manifested by paragraph 2 of Article 10 of the European Convention on Human Rights which provides that the right to freedom of expression shall be applied and enforced in accordance wit the restrictions, formalities, conditions and penalties that entrenched in any law. The restrictions are applied to facilitate the prosperity of a democratic society, in the interest o national security, to safeguard public health and safety, for public safety and in the prevention of crime in society. More particularly, there restrictions have been applied to prevent the spread of terrorism. This essay will focus on the relationship between the freedom of expression and incitement of hate with respect to terrorist activities. In a bid to divulge the polarity between freedom of expression and incitement of hatred and violence it will analyze the reasoning lying embedded in some of the decisions of the European Court of Human Rights.
The European Court of Human Rights in Stomakhin v. Russia held that in determining the scope of hate speech and incitement of hate and violence member states must refrain from taking any measure that amounts to excessive interference with the freedom of expression guaranteed under Article 10 of the European Convention on Human Rights. This case involved a publication of texts which according to the prosecution of the member state, were related to extremist activities, incitement of hatred violence and encouraging terrorism. However, the court insisted that a state must also take into account the inherent right to equal dignity for human beings. In contrast, it also noted that Article 10 should also be interpreted to imply the need to prevent any form of expressions that may insult or shock people or disturb the peaceful existence of other individuals. It is a well established fact in law as was espoused by the European Court of Human Rights in Gunduz v. Turkey that it is necessary for any democratic society to make concerted efforts to prevent the spread of any expressions that may incite violence or hate, and support violence and intolerance. In view of the above, the courts and states are faced with a taxing task of carefully balancing between the freedom of expression under Article 10 and the state obligation to fight forms of extremism such as terrorism.
For the court to establish the scope of the Incitement to Hatred/Violence in relation to terrorism the criterion used to distinguish between freedom of expression under the Article 10 and incitement to violence and hate, it takes into account the following factors;
- The Context, Nature and Wording of the Expression
- Impact of the Statement/ Expression
- The status the Author of Expressions
The Context, Nature and Wording of the Expression
The European Court of Human Rights in Centro Europa 7 Srl And Di Stefano v Italy held that the must be ale to make an objective assessment of the statements made in the expressions so as to classify the statements and consider if they amount incitement of hate, a glorification of violence and extremism and or a legitimate exercise of freedom of expression. This implies that one must avoid making a blanket assessment of the whole statement In Stomakhin v. Russia the court held that all the statements alleged to be amounting to incitement of hate/ violence and extremism activities such as terrorism must be taken into account according to the context in which they expressed. Therefore, the court must consider the disparate meanings of all statements, the audience targeted and whether the audience that actually received the information.
The European Court of Human Rights in Stomakhin v. Russia illuminated the fact that there is need to carefully find the thin line that distinguishes expressions that incite violence, hate and terrorism and expressions that are mere criticism of a governments activities. It is instructive to note that there are cases where the government declares state of emergencies that are indeterminately long for fear of violence, hate and extremism activities such as terrorism. In such cases the government may undertake to flagrantly violate the freedom of expression to prevent violence, hate or terrorism. The European Court of Human rights in Mehmet Hasan Altan v. Turkey emphatically held that a contracting party state should not limit the right to engage in political debate and consequently freedom expression, even if there is a threat to national security. It is worth noting in political debates play a significant role in putting the wheels of democracy in motion. Against this backdrop, in ?ahin Alpay v. Turkey the court held that the government must demonstrate positive efforts to safeguard the tenets of democracy. The court added that the contracting state party has an obligation to safeguard its democratic and constitutional order and must thus not overlook political debates, political comments and other forms government criticism.
The European Court of Human Rights in Medžlis Islamske Zajednice Br?ko and Others v. Bosnia and Herzegovina held that although the wording of a particular statement may appear to amount to incitement of terrorist activities the court must undertake to establish that the source of the information is clear and the content is authentic. A deep understanding of Article 10 brings to force the idea that information given in exercise of freedom of expression must be considerably accurate and reliable. The court has to make a deliberate effort to establish the truth about the information contained in the statement and its ability to materialize. This implies that information about terrorist activities may not make its author liable for incitement of violence and unable to rely on the right to freedom of expression if the information/ statement amounts to a mere propaganda.
The European Court of Human Rights in Leroy v. France held that criminal sanctions should be imposed on people who spread information that appears to be glorifying terrorism if only there are reasonable grounds to believe that the terrorist attacks even when fashioned as mere propaganda will actually be carried out by the perpetrator of the information. In Leroy the court found that cartoon expressions that glorified the terrorism act during the 911 attack in that occurred in United States do not amount to an exercise of freedom of expression but are an outright incitement to terrorism, violence and extremism. The European Court of Human Right in Roj TV A/S v. Denmark declined to find that the Televisions new that repeatedly incited people to take part in war and encouraged people to enroll as members of the guerrilla organization was tantamount to a mere propaganda representing the interest of the PKK terrorists. The court found that the new coverage of the TV Company was amounted to a incitement of violence and terrorism.
Criticisms of the Government and Incitement of Violence and Hate
In Erdal Ta? v. Turkey the European Court of Human Rights averred that the nature and meaning of the expression(s) must manifest an explicit intention to idealize and glamorize the violent or extremist cause. The court in Gunduz v. Turkey had also earlier held that an actual intention to make people hate, become violent and harbor extremist belief in respect of a particular cause must be vivid in the expressions. In line with the requirement of intention the court is also obligated to determine the rationale behind the impugned expressions.
With regard to freedom of expression under article 10 and justification of violence and hate the court in Perinçek v. Switzerland thought its grand chamber must be satisfied the statement or expressions are likely to give rise to devastating and harmful impacts. For the expression to amount to an incitement of violence and hate it must give rise to an imminent danger. In Leroy v. France the court held that it is prudent to assess the impact of the statement, more particularly, in areas that are politically sensitive.
Although the European Court of Human Rights appears to promote extremism and violence by allowing political debates and comments that may incite hate and violence, it has also shown that the freedom of expression under Article 10 cannot be invoked incase the political debates and comments have material impact on the national security and democratic order. It is well a well settled principle in law that any action or conduct that threatens the democratic order of society or state is utterly unlawful. The European Court of Human Rights has to determine if the impact of the expression could undermine the democratic and constitutional order of a state. According to Morice v. France the information contained in the expressions must be able to engender a situation where a democratic society will be absent. On the other hand the court in Bédat v. Switzerland has held any in information published in exercise must be ‘necessary in a democratic society’. Therefore, in determining whether, certain expressions could possibly undermine the democratic and constitutional order for a country, the European Court of Human Rights must establish if the expressions were necessary tool for promoting democracy. In Erdo?du v. Turkey the court held that the term ‘necessary’ connotes the existence of a pressing social need.
It appears that according to the European Court of Human Rights not very person is ale to incite violence, hate or extremism activities. In Fatullayev v. Azerbaijan the author of the expressions was a mere journalist and was accused of incitement of hate, violence and terrorist activities The European Court of Human Rights found that the information contained in his articles did not amount to incitement of terrorist activities hence there was violation of freedom of expression under Article10. The court reasoned that the accused person, in his capacity at the time he was exercising his freedom of expression through the publication of the article was not in a capacity to exercise any measure of control and influence over the unsubstantiated set of facts about certain activities involving terrorism. In Sürek (no. 1) v. Turkey the European Court of Human Rights took to the view that a person is regarded to being able to incite terrorism if due to his status go close to the target audience and recruits terrorists who will actively take part in terrorist activities. It can therefore be conceded that one an individual spreading information about terrorism which on the face it appears to be incitement for violence and hate will be held to e lawfully exercising his freedom of expression under Article 10 unless it is evinced that he is in capacity to cause the actual occurrence of the terrorist activities.
Mere Spread of Unsubstantiated Extremism Propaganda
It should be borne in mind that the Author of the information will be held liable for incitement of violence and thus not be to invoke his freedom of expression under Article 10 he has the capacity to highly influence actual terrorist or violent activities trough actively promoting the terrorist activities even without physical presence in the battle zones. In Roj TV A/S v. Denmark actions of a popular TV Company, manifested through its programs was held to amount to incitement of violence and promotion of terrorist activities due it capacity as a media company with wide reach and its deliberate and repetitive actions.
One cannot cast aspersions on the fact that that that freedom of expression guarantees under Artile10 is not absolute. The European Convention Human Rights by way of Article17 prohibits the abuse of freedom of expression through hate speech. It bears any act or conduct that enjoys the protection of the freedom of expression under Article 10 but violates and abuses the inherent values of the convention will no longer enjoy that protection by virtue of Artice17. The European Court of Human Rights in Roj TV A/S v. Denmark found that the actions of the TV company did no qualify to enjoy the protection under Article 10 since they flagrantly violated the inherent values of the convention. The court in Roj TV further held that the action of the TV Company amounted to incitement to violence to promote terrorist activities which was an outright infringement of Article 17 of the convention. It can therefore be conceded that the European Court of Human Rights does not condone actions or conduct amounting to incitement to violence or the with the objective of supporting terrorism. The court arrived at this position as a result of the application of the Article 17 that prohibits abuse of any right in the convention.
While it clear that every human being should enjoy the freedom of expression as provided under Article 10, one must be careful not to abuse such protection as Article 17 will cease that operation of Article10 upon abuse. The European Court of Human Rights in W.P. and Others vs Poland held that one of the rationales behind Article 17 is to mount an obstacle the totalitarian rule which is commonly perpetrated by individuals who a quest for personal interest. The meaning that can be derived from the court’s reasoning in W.P. and Others vs Poland is that terrorist groups and people who incite violence and hate with a view promoting the dealings of terrorist are totalitarians who fight for a selfish interest in the guise of exercising their right under Article 10 and should thus be stopped. Typically, the totalitarian doctrine is inconsistent with the innate precepts of democracy and human rights. This is attributed to the fact that the totalitarian doctrine creates a fertile ground for incitement to violence and hate and abuse of the freedom expression. Therefore it falls within the exception under Article 17.
Religious hate will only amount to an abuse of the freedom of expression pursuant to Article 17 if the nature, context and content of the hate speech give rise to an incitement to hate or violence. This position is similar to the reasoning of the European Court of Human Rights in Norwood v. United Kingdom where the court fund that a cartoon drawn on a magazine in UK amounted to religious hate speech since it depicted another religion as being associated with acts of terrorism. The court noted that this amounted to incitement of hate speech and was therefore an abuse of rights pursuant to Article 17 that should not be accorded the protection envisaged in article 10.
Intention of the Expression
By dint of Article 10 paragraph 2 of the Convention the court has a duty to establish if there is any interference of the freedom of expression as envisaged in paragraph 1. However, if I find that the interference is present it ill only permit it to the extent that it allowed by law, if it is targeted at achieving a legitimate aim and if it is in the best interest of a democratic society that the aims be attained. The European Court of Human Rights in Stoll v. Switzerland held that a legitimate aim is achieved if the court through a restrictive interpretation of the Article 10 paragraph 2 of the convention finds that there is absolute necessity to safeguard the national security and safety o the public. In Öztürk v. Turkey the held that an action will be held to be a legitimate aim if it is focused on combating terrorisms and reducing the possibility of the occurrence of more violence. This implies one cannot invoke the freedom of expression if its restriction can be justified through a legitimate aim.
Conclusion
It is a plausible conclusion that the European Court of Human Rights has striked a carefully balance in bring to force a near-accurate contrast between freedom of expression under Article 10 of the convention and incitement of hate and violence. This paper has revealed that although the court anyone escape liability for incitement to violence and hate by invoking the freedom of expression under Article 10 the court also has a robust discretion to prevent the protection of Article 10.
References
Bakircioglu, Onder. “Freedom of expression and hate speech.” Tulsa J. Comp. & Int’l L. 16 (2008): 1.
Bleich, Erik. “Free speech or hate speech? The Danish cartoon controversy in the European legal context.” In Global Migration, pp. 113-128. Palgrave Macmillan, New York, 2012.
Cannie, Hannes, and Dirk Voorhoof. “The abuse clause and freedom of expression in the european Human Rights convention: an added Value for Democracy and Human Rights Protection?.” Netherlands Quarterly of Human Rights 29, no. 1 (2011): 54-83.
European Convention on Human Rights
Flauss, Jean-François. “The European Court of Human Rights and the freedom of expression.” Ind. LJ 84 (2009): 809.
Goldberg, David. “Europe bans terrorist media: What sort of antidote to poisonous voices.” Cardozo J. Int’l & Comp. L. 17 (2009): 445.
Keane, David. “Attacking hate speech under Article 17 of the European Convention on Human Rights.” Netherlands quarterly of human rights 25, no. 4 (2007): 641-663.
Kiska, Roger. “Hate speech: A comparison between the European Court of Human Rights and the United States supreme court jurisprudence.” Regent UL Rev. 25 (2012): 107.
Oetheimer, Mario. “Protecting freedom of expression: the challenge of hate speech in the European Court of Human Rights case law.” Cardozo J. Int’l & Comp. L. 17 (2009): 427
Voorhoof, Dirk. “European Court of Human Rights, Roj TV A/S v. Denmark.” IRIS (ENGLISH ED. ONLINE) 7 (2018).
Weinstein, James, and Ivan Hare. “Extreme Speech and Democracy.” (2009).
Case Laws
Bédat v. Switzerland [2016] ECHR
Centro Europa 7 Srl And Di Stefano v Italy [2012] ECHR 974
Cylan v urkey [1999] ECHR 44
Erdal Ta? v. Turkey (2006)ECHR 261
Erdo?du v. Turkey [2000] ECHR
Fatullayev v. Azerbaijan [2010] ECHR 623
Gunduz v. Turkey [2003] ECHR 652
Leroy v. France [2008] ECHR
Medžlis Islamske Zajednice Br?ko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, ECHR 2017.
Mehmet Hasan Altan v. Turkey [2018] ECHR
Morice v. France [2015] ECHR
Norwood v. United Kingdom [2004] ECHR
Öztürk v. Turkey [ 1999] ECHR
Perinçek v. Switzerland [2015] ECHR
Roj TV A/S v. Denmark [2018] ECHR
?ahin Alpay v. Turkey [2018] ECHR
Seurot v. France [2004] ECHR
Stoll v. Switzerland [2007] ECHR
Stomakhin v. Russia [2018] ECHR 410
Sürek (no. 1) v. Turkey [1999] ECHR
W.P. and Others vs Poland [2004] ECHR
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