“Do not criminalize critical remarks against religions”
[11/06/07] The famous little mermaid in the port of Copenhagen was found
dressed in a headscarf recently, according to media reports. No one took
responsibility for this provocative action – maybe it was just a joke, maybe it
was intended as a message in the debate about the lack of respect for Muslims.
Anyhow, it was a reminder that the debate about how to combine freedom of
expression and respect for religions is still not concluded.
I belonged to those who felt that the publishing of the so-called Danish
cartoons was irresponsible and a reflection of Islamophobia. The damage was
considerable and the hurt among Muslims was very deep. However, I was not in
favor of any legal action against Jyllands-Posten. Also, I did not feel that the
cartoons illustrated a need for stronger blasphemy laws. My opinion is that we
should try to tackle such differences through a free and open discussion.
Admittedly, this was a borderline case. Freedom of expression as articulated in
article 10 of the European Convention on Human Rights is not without limits. The
freedom carries with it duties and responsibilities and may be subjected to
restrictions to protect public order and the rights of others, if this is
“necessary in a democratic society” and regulated by law.
The article specifies that the freedom may be limited “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 of others, for preventing the disclosure of information received
in confidence, or for maintaining the authority and impartiality of the
These provisions may not be easy to interpret in individual cases. One thing,
however, is clear: hate speech is not allowed. The European Court of Human
Rights has ruled that freedom of expression gives no entitlement to hate speech,
which “is incompatible with the values of the Convention, notably tolerance,
social peace and non-discrimination”.(1) The same line is followed by a 1997
recommendation of the Committee of Ministers of the Council of Europe. The EU
Council took a similar position in a recent Framework decision condemning
intentional hate speech.
Indeed, the International Covenant on Civil and Political Rights makes it an
obligation for States to prohibit incitement to racial and religious hatred
(article 20). The key aspect here is the deliberate incitement which can lead to
discrimination or violations against others. The term hate speech in the
Covenant is carefully defined as “advocacy of national racial or religious
hatred that constitutes incitement to discrimination, hostility or violence.”
In reality, it may still not always be easy to draw the line between hate speech
and other types of criticism. However, it is absolutely not intended that
uncomfortable and irritating statements in general should be prohibited. The
Court made this clear in a frequently quoted ruling that freedom of expression
was not only applicable to information and ideas which were inoffensive “but
also to those that offend, shock or disturb the State or any sector of the
population”.(2) This was an important interpretation.
Banning information and the expression of opinions should be seen as an
exceptional measure which needs to be decided through democratic means and
justified as a matter of absolute necessity. Otherwise, there may be a risk that
inopportune statements are stopped because someone who is influential does not
Freedom of expression is a key human right for the good functioning of democracy
itself. We know from experience its importance when exposing societal problems,
monitoring people in power and promoting tolerance. These values must be
protected – even at the cost of accepting some dubious media reporting.
The Parliamentary Assembly of the Council of Europe has decided to prepare a
report on legislation relating to blasphemy, religious insults and hate speech
against persons on ground of their religion and the Venice Commission has been
requested to prepare an overview of national law and practice in this area.
In a preliminary report the Venice Commission(3) writes that “religious groups must
tolerate, as other groups must, critical public statements and debate about
their activities, teachings and beliefs, provided that such criticism does not
amount to intentional and gratuitous insult and does not constitute incitement
to disturb the public peace or to discriminate against adherents of a particular
This appears to be the legal situation in Europe today:
• Practically all Council of Europe member States have legislation against
incitement to hatred, including religious hatred.
• Most States also provide for specific, more stringent or severe provisions
relating to incitement to hatred through the mass media.
• Religious insults are a criminal offence in a little more than half the member
• Denial of certain historical facts, such as Holocaust and genocide, is an
offence in certain countries.
• Blasphemy is an offence in only a minority of member States and where it is
one, it is, nowadays, rarely prosecuted.
The Venice Commission concludes that there is no need for new specific
legislation on blasphemy, religious insults and inciting religious hatred. The
focus should rather be on the full, correct and non-discriminatory
implementation of the existing general legislation.
This is a wise conclusion. New legislation would give the impression of favoring
further restrictions of freedom of expression instead of accepting that – as the
Commission stated - an open discussion of controversial issues is vital for
democracy. In fact, what is needed is a review of existing laws in order to
secure that the restrictive ones are repealed.
As rightly stressed by the Venice Commission, it rests within the national
courts to apply the legislation in a non-discriminatory manner. The national
judges should build on the principles offered by the Court and, in their test of
proportionality, take into account the impact of opinions and the context in
which they are expressed. Following the Giniewski and Aydin Tatlav(4) judgments,
the chilling effect of a sanction likely to discourage authors or publishers
expressing non-conformist opinions on religions has to be considered carefully.
The Venice Commission also announced its intention to reflect on alternative
measures for a good balancing of the rights of every group and individual. In
order not to jeopardize the right to freedom of expression, we could envisage
additional and complementary means of addressing possible conflict with the
respect for religions, focusing on the prevention of insult.
The media in some countries have agreed upon Codes of Ethics and established
review Councils for the purpose of self-regulation. The codes might be drafted
or re-drafted in light of the new challenges. They could refer to the role
played by journalists in the promotion of a culture of understanding of and
tolerance for different cultures and religions. Co-regulatory frameworks
involving the media, civil society and the public authorities should also be
1. Decision as to
the admissibility of application N° 23131/03 by Norwood v. United-Kingdom, 16
2. Handyside v. United-Kingdom, 7 December 1976, § 49.
406/2006, CDL-AD(2007)006. Preliminary report on the national legislation in
Europe concerning blasphemy, religious insults and inciting religious hatred
adopted by the Venice Commission at its 70th plenary session, (Venice, 16-17
4. Giniewski v. France, 31 January 2006, § 55 ; Aydin Tatlav
v. Turkey, 2 May 2006, § 30 (in French only).
Commission Preliminary Report on the national legislation in Europe concerning
blasphemy, religious insults and inciting religious hatred
Report on blasphemy, religious insults and hate speech against persons on grounds of their religion adopted by the Committee on Culture, Science and Education of the Parliemantary Assembly of the Council of Europe on 31 May 2007
Article 19: Global Campaign for Free Expression
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