Chapter 13 Walking on a High Wire

The European Court of Human Rights and the Challenge of Balancing the Rights to Freedom of Expression and the Protection of Religion/Belief under the ECHR

In: Freedom of Religion and Religious Pluralism
Authors:
Peter Cumper
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Tom Lewis
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Open Access

1 Introduction

The English actor and comedian Stephen Fry, whilst on Irish television in 2015, asked why he should “respect a capricious, mean-minded, stupid God” who is “utterly evil, capricious and monstrous”.1 His comments provoked widely contrasting responses. These ranged from an Irish police investigation into his alleged blasphemy,2 to the shortlisting of the programme for a broadcasting award.3 Fry’s case neatly illustrates the very different reactions that such cases typically evoke, and demonstrates how broadcasters, as well as law and policy makers more generally, must effectively walk a ‘high wire’ in balancing the free expression rights of those who wish to attack religion/belief, and the rights of those who object to their religion/beliefs being so condemned.

This ‘high wire’ challenge is the subject matter of our chapter. In it we focus on the European Convention on Human Rights (ECHR/Convention) and examine how the European Court of Human Rights (ECtHR/Court) has protected ‘beliefs’ (rather than believers per se) from ridicule, vilification and attack.4

The structure of this chapter is as follows. We start by examining, briefly, some possible reasons for the recent increase in ‘freedom of expression/religious sensibilities’ disputes. Next, we turn to the case-law of the ECtHR, focusing on the main cases that have come to the attention of Europe’s primary human rights court in this area. Finally, this chapter ends with our conclusion, in which we critique the metaphorical ‘high wire’ walking strategy of the ECtHR.

2 Freedom of Expression and the Protection of Religion/Belief – The Current Context

Today, barely a month seems to pass in Europe without complaints in the press that the religious feelings of some have been offended by the words or conduct of others. Such disputes typically generate more heat-than-light. They arouse strong passions in those who claim that appropriate respect has not been afforded to the sanctity of their beliefs. Half a century ago, few sociologists would have anticipated this state of affairs. Back then many subscribed to the ‘secularisation’ theory, whereby it was assumed that, with modernity, ‘religious institutions, actions and consciousness [would] lose their social significance’,5 and that ‘religion was doomed to fade away’.6

As recent history demonstrates, such assumptions were mistaken, and the secularisation thesis has now been consigned ‘to the graveyard of failed theories’.7 Indeed, rather than secularisation leading to the demise of religion, scholars such as Olivier Roy point to its contribution in the revitalisation and transformation of religion, with the emergence of ‘new forms of religious visibility’ being evident in public, and the refusal of some religious groups to confine their faith to the private sphere.8 This increasing visibility of faith in the public arena perhaps helps explain why battles between those who wish to attack certain religious beliefs, and those who so object, have attained much greater public prominence in recent decades.

There are, of course, a multitude of other possible explanations for the increase in the number of disputes involving the right to freedom of expression and the protection of religious sensibilities. These include: the transformation of Europe into a multi-faith continent, with the adherents of minority religions (for whom faith may be linked to notions of individual and collective identity) often keen to use the law to resist attacks on their religious traditions; the tendency of some xenophobic groups to disguise their true racist motives, by couching their vilification of minority traditions in religious (rather than racial) terms; the influence of militant atheist scholars, who attack religious beliefs, using pejorative language to suggest that, for example, ‘religion poisons everything’;9 the willingness of some violent groups to use the satirising of their beliefs as a pretext for acts of terrorism;10 and finally, in relation to some Eastern European nations and Russia in particular, the close links between important state and religious institutions, so that vilification of such institutions is criminalised on the ground that it constitutes ‘blasphemy’.11

Various other possible explanations could be adduced, but one thing seems clear – there has been a significant increase in the number of cases pitting those invoking the right to freedom of expression against others arguing from the perspective of a right to protect the feelings of religious believers. In recent decades many of these have made their way to the ECtHR. As a result, the ECtHR plays an important role in the setting of standards for the continent in this area, and it is therefore to Article 10 of the Convention, and the relevant jurisprudence of the Court, that we now turn.

3 Article 10 and the Influence of Otto-Preminger-Institut v. Austria

3.1 Article 10 and the Right to Freedom of Expression

The starting point for any discussion of the right to freedom of expression is Article 10 of the ECHR. It provides that:

  1. 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 …

  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.

Freedom of expression is thus a ‘qualified right’, in that it is afforded protection under Paragraph 1 of Article 10 but may be limited under Paragraph 2. However any such restriction, for it not to constitute a violation of the Article, must be in pursuit of one of the legitimate aims listed, so it must be ‘prescribed by law’12 and ‘necessary in a democratic society’. This final requirement has been held by the Court to mean that any restriction must ‘correspond to a pressing social need’, must be proportionate to whichever legitimate aim is being pursued, and the reasons given for the interference must be ‘relevant and sufficient’.13 As a consequence of Article 10’s structure the ECtHR is required, one way or another, to perform a balancing exercise in which the right is weighed against the reasons for restriction. Indeed, the Court has said that ‘inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s human rights’.14 It is this search for a fair balance between competing values – this striving for a safe traverse of the high wire – that lies at the heart of the most influential case in this area – Otto-Preminger-Institut v. Austria.

3.2 Otto-Preminger-Institut v. Austria15

This case concerned the banning of Werner Schroeter’s 1981 film Das Leibeskonzil (‘Council in Heaven’). Based on an 1894 play by Oskar Pannizar, the film tells the story of God, Jesus and Mary conspiring to punish humankind for its immorality. Together, with the support of the Devil, they come up with the idea of a sexually transmitted disease (syphilis) and the Devil then sends his daughter, Salome, to spread the infection by sexual contact, primarily with Church leaders.16

The Otto-Preminger-Institut (OPI), a non-profit-making organisation promoting creativity, scheduled six showings of the film at an art-house cinema in Innsbruck, with entrance limited to those who were over the age of seventeen. However, plans to show the film generated controversy and, at the request of the Innsbruck Diocese of the Roman Catholic Church, statutory charges for ‘disparaging religious doctrines’ were brought. The Austrian authorities seized the film which, after judicial proceedings, was subject to forfeiture. The OPI, having exhausted domestic remedies without success, then applied to the ECtHR claiming a breach of Article 10 of the ECHR.

Given that Austria’s seizure and forfeiture of the film clearly interfered with the OPI’s right to freedom of expression, the issue facing the Court was whether this interference could be justified under Article 10(2). In other words, for the state’s actions to be lawful, the Court had to determine whether they satisfied the three Article 10(2) criteria of being prescribed by law, in pursuance of a legitimate aim, and necessary in a democratic society. Whereas the first criterion was uncontroversial (i.e., the film had clearly been banned under domestic law), the other two were less so. Thus, the ECtHR was tasked with first determining whether the state’s measures had pursued a legitimate aim and, second, whether these measures were necessary in a democratic society.

On the first question, the Court held that Austria’s actions pursued the legitimate aim of protecting the rights of others, in relation to respect for their religious feelings. In so doing it affirmed that whilst the right to freedom of religion/belief, guaranteed under Article 9 of the ECHR, does not protect religious believers from all criticism, nonetheless:

the manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the State, notably its responsibility to ensure the peaceful enjoyment of the right guaranteed under Article 9 to the holders of those beliefs and doctrines.17

The ECtHR stated that the opposition to, or denial of, another person’s beliefs might, in extreme cases, inhibit their freedom to hold such beliefs, and it added that the ‘respect for the religious feelings of believers’ as guaranteed by Article 9 of the ECHR,18 could ‘legitimately be thought to have been violated by provocative portrayals of religious veneration’.19 Thus, Article 10(2) was held to provide a right not to be insulted in one’s religious sensibilities that were part and parcel of the Article 9 right to freedom of religion or belief.

In relation to the second question of whether the measures taken by Austria had been necessary in a democratic society, the majority of the ECtHR held that there had been a ‘pressing social need for the preservation of religious peace’ given that the film attacked Catholicism in a region (the Tyrol) where the ‘overwhelming majority’ of people were Roman Catholics. In this regard the Court stated that Article 10 includes an important obligation:

to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs.20

The ECtHR asserted that a ‘certain margin of appreciation’ had to be left to the national authorities since it was ‘not possible to arrive at a comprehensive definition of what constitutes a permissible interference with the exercise of the right to freedom of expression where such expression is directed against the religious feelings of others’.21 Putting it another way, the Court held that the authorities, knowing far better the local conditions, needed to be given a degree of leeway in acting to ‘ensure religious peace in that region’ and preventing what some people would perceive as ‘unwarranted and offensive’ attacks on their religious beliefs.22

In Otto-Preminger we can see the Court ‘walking the high wire’, construing the case as one necessitating a balance two equally important Convention rights (religion and expression), rather than one in which freedom of expression had presumptive priority. As the majority put it, the case involved:

weighing up … two fundamental freedoms guaranteed under the Convention, namely the right of the applicant association to impart to the public controversial views and, by implication, the right of interested persons to take cognisance of such views, on the one hand, and the right of other persons to proper respect for their freedom of thought, conscience and religion, on the other hand.23

A characteristic of ECtHR case-law is its tendency, in cases of rights-balancing where neither right has putative priority over the other and no pan-European consensus exists, to afford states a wide margin of appreciation.24 This is on the basis that, in these circumstances (which are often controversial or highly emotive in nature), national authorities are best placed to judge how an appropriate balance should be struck.25 In such cases judges sitting in an international court evidently feel less confident about adjudicating because the metaphorical ‘wire’ is treacherous and difficult to cross, so they proceed slowly, making sure they are covered by the ‘safety-net’ of a wide margin of appreciation – in contrast to other areas such as contempt of court, where judges stride confidently ahead and are willing to make bold judgments in defence of freedom of expression, notwithstanding restrictive measures imposed by states.26

The wide margin of appreciation afforded to the state in Otto-Preminger led to strikingly low levels of scrutiny of the proportionality of its actions.27 The ECtHR’s approach in this regard is questionable for a number of reasons. To begin with, it was improbable that anyone likely to be offended would have viewed the film,28 for any offence that might potentially have been caused to believers was almost certain to have been a kind of ‘secondary offence’ (i.e., offence at the knowledge that others were seeing the film, rather than direct offence caused by seeing themselves), so the Court’s assertion that the insulting portrayals of objects of religious veneration might inhibit the exercise of the right to freedom of religion seems less than tenable.29 What is more, the facts of Otto-Preminger reveal that this was a case of prior restraint – a form of restriction that, certainly in journalistic-speech contexts, the Court regards as being especially dangerous, and therefore requiring its ‘most careful scrutiny’.30 And finally, the ECtHR made the bold assertion that ‘gratuitously offensive’ remarks could constitute an ‘infringement’ of other’s rights, and ‘therefore’ could ‘not contribute to any form of public debate capable of furthering progress in human affairs’.31 This claim, which is arguably the most controversial element of the Otto-Preminger ruling, can be challenged on three grounds.

First, the ECtHR’s ‘gratuitous offense’ dictum has major implications for artistic freedom, especially because it risks affording the state ‘wide and vaguely defined powers to prescribe the manner in which ideas and opinions are expressed’.32 To categorise any kind of artistic expression as gratuitous is problematic especially given the importance of art to human flourishing and social criticism.33 In particular, the role of satire has long been important in the development of European liberal democracies, as a way of critiquing entrenched elites, abuse of power and the status quo.34 Thus, to characterise a satirical film like Das Liebeskonzil, with its long artistic genealogy, as gratuitously offensive is concerning, and risks leading to a ‘radical loss of freedom’.35

Secondly, the Court’s assertion that gratuitously offensive expression must be an infringement of the rights of others is questionable. Of course, a strong case can be made for outlawing forms of expression that abuse or denigrate a class of people on the grounds, say, of their race or religion. After all, persuasive arguments have been made that such hate speech constitutes an attack on fundamental Convention values (e.g., dignity), and that its criminalisation is necessary to safeguard pluralism and protect minorities.36 But there is a significant difference between speech/conduct that would constitute incitement to discrimination, hostility or violence (e.g., the advocacy of religious hatred), and merely risking the causing of offence through the mockery or ridicule of objects of religious veneration.

Thirdly, the ‘gratuitous offence’ dictum is problematic because of the ECtHR’s supposition that it cannot contribute to any form of public debate leading to progress in human affairs. It is hard to see how a court, composed of mere mortals, can predict in advance how particular forms of expression will contribute to human progress.37 As David Pannick, sagely observes: ‘No doubt Galileo, Copernicus and Spinoza offended religious feelings in their day, and were regarded as making no useful contribution to human knowledge.’38 Thus, the ECtHR’s assumption that gratuitous speech is not capable of contributing to the public discourse is deeply problematic.

3.3 ECtHR Caselaw – the Immediate Legacy of Otto-Preminger

In view of the above criticisms, it is perhaps hardly surprising that the ECtHR’s decision and reasoning in Otto-Preminger has generated much (often critical) comment.39 Furthermore, the Otto-Preminger ruling has cast a long shadow over the Court’s subsequent jurisprudence in this area. A case in point is Wingrove v. UK,40 where a wide margin of appreciation was afforded to the state, when the ECtHR held that the UK’s refusal to award a certificate permitting the distribution of a film about a nun’s erotic visions of Christ on the cross was justified by the need to protect the sensibilities of Christians. Likewise, in İ.A. v. Turkey,41 the Court held that there had been a ‘pressing social need’ for a ban on a novel which claimed (inter alia) that the prophet Mohammad ‘did not forbid sexual intercourse with a dead person or a live animal’. The Court held that the Turkish authorities had not overstepped their margin of appreciation because the book had offended Turkey’s majority Muslim population being an ‘abusive attack on the Prophet of Islam’ that had led believers to feel that they were the ‘object of unwarranted and offensive attacks’.42

In the last decade or so, however, there have been suggestions that the shadow of Otto-Preminger may be receding. Indeed, in İ.A. v. Turkey, the President of the Court Judge Costa, in a dissenting opinion with others, submitted that the time had come to ‘revisit’ the case-law in this area which seemed ‘to place too much emphasis on conformism or uniformity of thought’ and reflected an ‘overcautious and timid conception’ of free speech.43 Although the ECtHR has not expressly repudiated its decision and reasoning in Otto-Preminger, there have been signs (admittedly not conclusive) that it has reappraised its earlier approach, and be less deferential to states in regard to attacks on spiritual leaders or religious doctrines.

The essence of the Court’s apparent new approach has been for it to make every possible effort to identify a ‘public debate’ within the factual matrix of the case before it, thereby bringing the expression/speech in question within the sphere of ‘political’ or ‘public interest’ debate-speech. This category of ‘political’ or ‘public interest’ debate-speech has long been afforded considerable protection by the ECtHR,44 with only a narrow margin of appreciation being accorded to states that restrict such utterances.45 Moreover, in relation to the metaphorical ‘high wire’, the ECtHR’s willingness to embrace the ‘public interest’ characterisation of cases in this area has emboldened judges who, seemingly more confident of their footing, have felt able to subject state restrictions to meaningful proportionality analyses. This new approach has also allowed the ‘gratuitous offence’ doctrine to be side-lined. After all, if gratuitously offensive expression, as per the Otto-Preminger test, cannot ‘contribute to any form of public debate capable of furthering progress in human affairs’, then, according to the same logic, expression that does contribute to public debate cannot be gratuitously offensive. The influence of this reasoning on the jurisprudence of the ECtHR, and the extent to which the shadow of Otto-Preminger still lingers, will now be explored, starting with the first case that hints at this possible change in direction: Giniewski v. France.46

3.4 ECtHR Case-Law – Emerging from the Shadow of Otto-Preminger

In Giniewski v. France a journalist named Giniewski challenged his defamation conviction, for having written a newspaper article that explored links between a doctrine developed by the Catholic Church and the origins of the Holocaust. The domestic courts held Giniewski’s article had ‘undermined the honour and character’ of Christians generally and Catholics in particular.47 However, the ECtHR took a different view when it ruled (unanimously) that there had been a violation of Article 10. The Court accepted that the article might offend, shock or disturb some people, but that it was ‘not “gratuitously offensive”, or insulting’, nor did it ‘incite disrespect or hatred’.48 Crucially, the Court found that by advancing an argument about a possible connection between the origins of the Holocaust and Catholic doctrine, Giniewski had contributed to ‘a wide-ranging and on-going debate without sparking off any controversy that was gratuitous or detached from the reality of contemporary thought.’49 Thus, because Giniewski’s article could be read as part of an on-going debate of public interest, this enabled the ECtHR to narrow the margin of appreciation, and subject the restrictions to far higher levels of scrutiny than in Otto-Preminger.

The ECtHR adopted a similar approach in Klein v. Slovakia.50 In this case the applicant (Klein), a journalist and film-critic, had published a magazine article strongly criticising the Catholic Archbishop of Slovakia for his opposition on television to the showing of a film, The People vs Larry Flint. The article also alluded to the Archbishop’s alleged involvement with the secret police of the former Communist regime and invited Catholics (who constituted 69 per cent of Slovakia’s population) to renounce their faith. Following its publication, Klein was convicted of publicly defaming and offending the religious feelings of members of the Catholic Church and fined 375 euros. However, when he challenged this before the ECtHR, it unanimously found a breach of Article 10, rejecting the domestic court’s conclusions that the rights of Christians had been violated,51 and holding that his ‘article neither unduly interfered with the right of believers to express and exercise their religion, nor did it denigrate the content of their religious faith’.52 Moreover, the Court emphasized the fact that the article had been a reaction to the Archbishop’s original statement that had been broadcast on the main TV evening news so, albeit without making the point as clearly as it did in Giniewski, the Court deemed the article to be part of an on-going public debate.53

More recently, in Tagiyev and Huseynov v. Azerbaijan,54 the Court adopted a similar approach, indicating possible signs of a desire to emerge from the shadow Otto-Preminger. The case involved two Azerbaijani journalists challenging their conviction and imprisonment for incitement to religious hatred under Article 10 of the ECHR. It followed their publication of a newspaper article that was part of a series on ‘East-West studies’, which covered a wide range of issues including the role of religion in Azerbaijan and (more generally) Europe.55 Parts of the article were particularly critical of Islam, which it described as ‘a type of Eastern despotism’, while it also claimed that ‘[i]n comparison with Jesus Christ, the father of war fatwas… the Prophet Muhammad is simply a frightful creature’.56 Before the ECtHR the Government argued that the applicants’ criminal convictions had ‘met a pressing social need’ because the newspaper article had offended and insulted religious feelings, and that, as a result, ‘the domestic courts had struck the right balance between the rights protected under articles 9 and 10 of the Convention’.57 The Court however disagreed, holding that Tagiyev and Huseynov’s criminal convictions had been ‘disproportionate’ and therefore in violation of Article 10. In reaching this conclusion the Court reiterated the principle that, when it comes to matters such as ‘political speech or debates or questions of public interest’, efforts to place limits on these issues afford states a much narrower margin of appreciation.58 Moreover, on the facts of the case, the ECtHR held that a ‘reading of the whole text’ revealed that the publication in question ‘mainly dealt with the comparison between Western and Eastern values’ and ‘the role of religion in society’, so it should not have been banned, for it constituted a ‘debate on a matter of public interest’.59

In the three cases above – Giniewski, Klein, and Tagiyev and Huseynov – the European Court’s categorization of the expression at issue as ‘debate-speech’ had a significant effect on the degree of scrutiny to which it subjected the domestic decisions. Once it was determined that the expression constituted part of a debate, this drastically narrowed the margin of appreciation: the Strasbourg judges felt more confident in crossing the metaphorical high wire, and not as reliant on the safety-net of the margin of appreciation as in cases like Otto-Preminger, Wingrove and İ.A.

It may be, of course, that the above three cases – all involving press articles written by journalists – are truly distinguishable in-kind from the artistic works in Otto-Preminger, Wingrove and İ.A. More specifically, given that the ECtHR’s ruling in Tagiyev and Huseynov actually came after its judgment in the (soon to be discussed) case of E.S. v. Austria, where the ECtHR seemingly returned to the Otto-Preminger approach, any supposed change of direction might be illusory. Yet, that said, there have nonetheless been signs in recent decades that the Court has also reappraised its approach to artistic expression.

A case in point is Vereinigung Bildender Kunstler v. Austria,60 where an injunction had been issued to ban a painting, which (inter alia) had portrayed an Austrian Cardinal and Mother Teresa as participants in a group of public figures engaging in sexual activities. However, the ECtHR held the ban to be in violation of Article 10 on the basis that it was not necessary in a democratic society. In so doing the Court – by departing from the narrow Otto-Preminger approach to artistic speech, where it interferes with the ‘rights of others’61 – afforded more weight to free speech by emphasising the importance of artistic expression to democracy. It affirmed that ‘[t[hose who create, perform, distribute or exhibit works of art contribute to the exchange of ideas and opinions which is essential for a democratic society.’62 Indeed, the ECtHR, in characterising the painting as a satirical image, held that ‘satire is a form of artistic expression and social commentary’ and that ‘any interference with an artist’s right to such expression must be examined with particular care.’63

An arguably even bolder approach in this regard was evident in the ECtHR’s ruling in Mariya Alekhina and Others v. Russia.64 The case concerned an Article 10 challenge brought by members of a Russian feminist punk band, Pussy Riot, following their conviction and prison term for attempting to perform a song entitled Punk Prayer – Virgin Mary, Drive Putin Away in Moscow’s Christ the Saviour Cathedral. The Court held that their ‘performance’ was a mixture of ‘conduct and verbal expression’ that amounted to a ‘form of artistic and political expression covered by Article 10’.65 Moreover, in reiterating its previous view that, under Article 10, there is ‘little scope … for restrictions on political speech or debates on questions of public interest’,66 the ECtHR noted that the applicants wished to highlight ‘topics of public interest’ such as their concerns about the political situation in Russia and the response of some clerics to street protests.67 These considerations, as well as the failure of the Russian authorities to justify the harsh criminal sanctions imposed, led to the Court ruling that there had been a violation of Article 10.

The ECtHR’s apparent willingness to afford fewer safeguards to religious feelings has, in recent years, even extended to the commercial realm. Thus, for example, in Sekmandienis Ltd v. Lithuania,68 a clothing company that had been fined for using models depicting religious figures to sell its products, with captions such ‘Jesus [and] Mary, what are you wearing!’, successfully invoked Article 10 on the basis that the advertisements were not evidently gratuitously offensive or profane or capable of inciting religious hatred. Likewise, in Gachechiladze v. Georgia,69 the ECtHR held that there had been a violation of Article 10 in relation to a product recall and ban on some brands of condoms, because the state had argued that certain designs on their packaging offended practising Orthodox Christians.

The Court’s approach in these cases seems far removed from its earlier ruling in Otto-Preminger. Moreover, this apparent willingness on the part of the ECtHR to lean more towards freedom of expression as opposed to religious sensibilities whilst negotiating the metaphorical high wire is, in our opinion, a welcome development for at least four reasons. First, it is consistent with the ECtHR’s seminal remark in Handyside v. UK, that Article 10 must be ‘applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.’70 Second, it reflects the fact that the ECHR does not expressly guarantee the right to protection of religious feelings.71 Third, it avoids law and policy makers having to wrestle with the difficult question of why the religious feelings of believers are evidently more worthy of legal protection than say the feelings of those holding certain non-religious or ethical beliefs that also fall within Article 9 of the ECHR.72 Finally, it demonstrates that imposing restrictions on free speech does not adversely affect the ability of people of faith, or religious communities more generally, to exercise their rights of freedom of thought, conscience and religion.73 However, notwithstanding the fact that various other arguments could be made to corroborate the four identified above, such reasoning appears not to have cut-much-ice with the ECtHR, particularly given its ruling in E.S. v. Austria, to which we now turn.74

4 E.S. v. Austria – the Shadow of Otto-Preminger Returns

In E.S. the ECtHR was faced with the challenge of:

weighing up the conflicting interests of the exercise of two fundamental freedoms, namely the right of the applicant to impart to the public her views on religious doctrine on the one hand, and the right of others to respect for their freedom of thought, conscience and religion on the other.75

The applicant (E.S.) in this case was a member of the right-wing Austrian Freedom Party, who had organised a public seminar entitled “Basic Information on Islam”.76 The comments in question referred to the seventh-century Prophet Muhammad’s marriage to the 6-year-old Aisha, and the applicant remarked (inter alia) that Muhammad ‘liked to do it with children’ and ‘[w]hat do we call it, if it is not paedophilia?’. The applicant was subsequently convicted under the Austrian Criminal Code for disparaging religious doctrines, and ordered to pay a fine of 480 euros, as well as the costs of proceedings. Having lost before the domestic courts, the applicant then invoked Article 10 before the ECtHR. There she argued that her words about Muhammad should be protected because they were value judgments which had been spoken in the context of an objective and lively discussion about Islam that contributed to a public debate.77

The ECtHR however disagreed, holding that E.S.’s remarks were not protected by Article 10 since they had ‘not been made in an objective manner aimed at contributing to a debate of public interest’ on an issue like child-marriage, but rather they had been ‘aimed at demonstrating that Mohammad was not a worthy subject of worship’.78 As such, they were liable to arouse justified indignation in others, jeopardise the peaceful co-existence of religious and non-religious groups, and hurt the feelings of Muslims.79 The Court held that the domestic courts had ‘carefully balanced [E.S.’s] right to freedom of expression with the rights of others to have their religious feelings protected’80 and had not overstepped their ‘wide margin of appreciation in the instant case’.81

By upholding the decision of the domestic authorities, the ECtHR, as it negotiated the metaphorical high wire balancing the rights of free speech and religious feelings, chose to lean more towards the latter, thereby bringing into focus the ‘safety-net’ of the margin of appreciation. A key reason for this course appears to have been that, as the Court itself acknowledged, ‘the subject matter of the instant case is of a particularly sensitive nature’.82

Certainly, it is hard to think of anything more offensive to people of faith than the suggestion that their most venerated human figure was a paedophile – an especially hurtful slur for Muslims who view Muhammad as having been ‘a paradigm of behaviour’,83 for whom their love constitutes the very ‘raison d’être’ of their existence.84 Thus, mindful of these considerations, and the fact that Strasbourg’s judges have been criticised in the past for having interfered too much in domestic legal affairs,85 it is easy to see why the ECtHR, in traversing the high wire in E.S., placed so much emphasis on the ‘safety-net’ of a wide margin of appreciation. It is however an approach that has attracted considerable criticism, not least because of the consequences of the ruling.

An obvious first consequence is the ECtHR’s effective resurrection of Otto-Preminger. Not only does the spirit of Otto-Preminger suffuse the decision, but the Court specifically cited it in holding that Article 9 of the ECHR places curbs on forms of expression that are ‘gratuitously offensive to others and profane’ or constitute ‘an improper or even abusive attack on an object of religious veneration’.86 Many of our earlier criticisms of Otto-Preminger would thus seem to apply equally to this statement.

A second consequence of E.S. is that, because the ECtHR based its judgement on the defamation of the Prophet Muhammed, the waters in terms of distinguishing clearly between inciting hatred and blasphemy have been muddied. This certainly has been a criticism levelled at the Court’s ruling in E.S.,87 with claims that it has given ‘its blessing to the criminalisation of blasphemy, in all but name’.88 This ‘blasphemy by the back door’ charge is a serious one, particularly given the common assumption that blasphemy laws rest uneasily with human rights generally and the right to freedom of expression in particular.89 What is more, the E.S. ruling is seemingly at odds with the persuasive view that attention should be focused on ways of effectively tackling ‘the issue of advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence’ as opposed to ‘focussing on strategies to counter defamation of religions’.90

The final consequence of E.S. is that, as Eva Hauksdóttir argues, it raises more questions than it answers ‘about the Court’s methodology in blasphemy cases’, and ‘concerning the interplay of Articles 9 and 10 of the Convention’.91 More specifically, the Court’s ruling offers little guidance on when, if ever, utterances that make reference to the respective ages of Muhammad and Aisha at the time of their marriage, might be protected by Article 10. A case in point is that of Charles Moore, the former editor of The Daily Telegraph, who in 2004 provoked controversy when he argued that people had a right to ask if the prophet Muhammad was a paedophile because of Aisha’s age when they married. Whereas E.S. spoke at a conference organised by a far-right political party with a reputation for hostility towards Islam, Moore’s comments were (avowedly) made in order to highlight what he regarded as the threat to free speech posed by the then UK government’s plan to outlaw incitement to religious hatred in England and Wales.92 Indeed, in the light of the ECtHR’s ruling in E.S., might there be any other circumstances in which speech ‘defaming’ the central figure in a religion should be constrained? Judge Robert Spano has recently acknowledged that ‘Convention rights are seldom developed in the abstract’,93 and the ECtHR in E.S. affirmed that, in cases in this area, the ‘impugned statements depend, to a certain degree, on the situation in the country where the statements were made at the time and the context in which they were made’.94 It would be unrealistic for the Court in E.S. to have provided guidance for every possible scenario, but its judgment in the case was rather lacking in detail so, inevitably, uncertainty remains. As the former English High Court Judge, Sir David Eady once observed, ‘there is no more “chilling effect” upon freedom of communication … than uncertainty as to the lawfulness of one’s actions’.95

5 Conclusion

When the film Das Leibeskonzil premiered in 1982 at the Berlin Film Festival, reviewers described it as ‘boring and as harmless as a puppet show’.96 Yet this was the film that was subsequently banned in Austria for ‘disparaging religious doctrines’, and the subject of the ECtHR’s contentious ruling in Otto-Preminger. Cases like this, as noted at the start of this chapter, often provoke very different reactions. Accordingly, the challenge of balancing the rights of those who wish to denigrate religion/belief, and the rights of those who object to such disparaging attacks, is a formidable one, which effectively requires judges to have the metaphorical agility and skills of a high wire walker.

Today in Europe, the ECtHR has an important role to play in terms of offering guidance on the parameters of the right to freedom of expression where offence has been caused to the feelings of religious believers. Yet the way in which the ECtHR should negotiate the metaphorical wire provokes different responses. Some will prefer the approach of cases like Otto-Preminger and E.S. where the ECtHR – evidently mindful of the highly emotive nature of attacks on religious feelings – has tilted more towards the protection of freedom of religion/belief, thereby ensuring it is covered by the safe-net of a wide margin of appreciation. In contrast, others will favour a more robust free speech/public interest approach, whereby the ECtHR displays greater confidence and self-assurance in walking the “wire”.

In this chapter, as evidenced by the arguments made earlier in this chapter, we favour the latter approach. In advancing this position, we suggest that it is apposite to take cognisance of the sentiments of French high wire artist Philippe Petit, best known for his high wire walk between the Twin Towers of the World Trade Centre in New York City in 1974, as documented in the 2008 film, “Man on Wire”. Petit comments:

The gods in my feet know how not to hit the cable, how not to make it move when each foot lands. … Wirewalker, trust your feet! Let them lead you; they know the way.97

It is perhaps time for the European Court to look more at the wire, less at the safety-net and to “trust its feet”.

1

Henry McDonald, “Stephen Fry calls God an ‘evil, capricious, monstrous maniac,’” The Guardian, February 1, 2015, https://www.theguardian.com/culture/2015/feb/01/stephen-fry-god-evil-maniac-irish-tv.

2

Pádraig Collins, “Stephen Fry investigated by Irish police for alleged blasphemy,” The Guardian, May 7, 2017. https://www.theguardian.com/culture/2017/may/07/stephen-fry-investigated-by-irish-police-for-alleged-blasphemy

Proceedings were never brought against Fry under Ireland’s (now repealed) Defamation Act 2009.

3

Kevin Rawlinson, “Stephen Fry ‘God is evil’ interview up for religious broadcasting award,” The Guardian, March 21, 2016. https://www.theguardian.com/media/2016/mar/21/stephen-fry-god-evil-interview-religious-broadcasting-award.

4

This distinction between attacks of ‘beliefs’ and ‘believers’, which admittedly is often less than clear, means that we exclude from this chapter the issue of hate speech and other forms of incitement to hatred against people on the grounds of religion/belief, race, ethnicity or nationality.

5

Bryan Wilson, Religion in Secular Society (London: Penguin, 1966), 14.

6

Michael Cook, Ancient Religions, Modern Politics: The Islamic Case in Comparative Perspective (Princeton: Princeton University Press, 2014), 443.

7

Rodney Stark and Roger Finke, Acts of Faith: Explaining the Human Side of Religion (Berkeley: University of California Press, 2000), 79.

8

Olivier Roy, Holy Ignorance: When Religion and Culture Part Ways (New York: Columbia University Press, 2010), 3.

9

Christopher Hitchens, God is Not Great: How Religion Poisons Everything (Toronto: McClelland & Stewart, 2008).

10

An obvious example is the terrorist attack on the offices of Charlie Hebdo in 2015. See, e.g., Jeroen Temperman and András Koltay, eds. Blasphemy and Freedom of Expression: Comparative, Theoretical and Historical Reflections after the Charlie Hebdo Massacre (Cambridge: Cambridge University Press, 2017).

11

See, Jeroen Temperman, “‘Mother of God, Drive Putin Away’: On Blasphemy and Activist Art in the Jurisprudence of the European Court of Human Rights,” in Temperman and Koltay, ibid, 294.

12

This means that any restriction must be both accessible, and sufficiently precise to enable the individual “to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail”. See Sunday Times v. UK, Application no. 6538/74, judgment of 26 April 1979, at para. 49.

13

Ibid.

14

See, e.g., Soering v. UK, Application no. 14038/88, judgment of 7 July 1989, at para. 89.

15

Otto-Preminger-Institut v. Austria, Application no. 13470/87, ECtHR judgment of 20 September 1994.

16

On the play and attempts to ban it see Peter D.G. Brown, “The Continuing Trials of Oskar Panizza: A Century of Artistic Censorship in Germany, Austria, and Beyond,” German Studies Review 24 (2001): 533.

17

Otto-Preminger (n 15), para. 47.

18

‘Everyone has the right to freedom of thought, conscience and religion; the right includes the freedom to change his religion or belief, and freedom, either alone or in community with others and in public and private, to manifest his religion or belief, in worship, teaching, practice and observance.’ ECHR, Article 9(1).

‘Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’ ECHR, Article 9(2).

19

Otto-Preminger (n 15), para. 47.

20

Ibid., para. 49.

21

Ibid., para. 50.

22

Ibid., para. 56.

23

Ibid., para. 55.

24

The margin of appreciation gives the state a ‘certain measure of discretion, subject to European supervision, when it takes legislative, administrative or judicial action in the area of a Convention right…’: David Harris, Michael O’Boyle, Ed Bates, and Carla Buckley, The Law of the European Convention on Human Rights (Oxford: Oxford University Press, 2018), 14.

25

See, e.g., Von Hannover v. Germany (No. 2), Application no. 40660/08, ECtHR judgment of 7 February 2012, paras. 104–107.

26

See, e.g., Sunday Times v. UK, Application No. 6538/74 [1979] ECHR 1 (26 April 1979), where, in balancing the right to freedom of expression (Article 10) and the right to a fair hearing (Article 6) – and affording the state a narrow margin of appreciation – the ECtHR held the UK to be in violation of Article 10.

27

The same point can also be made about the cases of Wingrove and İ.A (see n 40 and n 41 respectively).

28

See Otto-Preminger (n 15), dissents of Judges Palm, Pakkanen and Makarczyk, paras. 9–11.

29

For criticism of restricting behaviour on the grounds of secondary offence see Joel Feinberg, The Moral Limits of the Criminal Law: Offense to Others (Oxford: Oxford University Press, 1985), 33.

30

Observer and Guardian v. UK, Application no. 13585/88, ECtHR judgment of 26 November 1991, para. 60. See also Eric Barendt, Freedom of Speech, 2nd edition (Oxford: Oxford University Press, 2005), 118–153.

31

Otto-Preminger (n 15), para. 49.

32

Ian Cram, “The Danish Cartoons, Offensive Expression and Democratic Legitimacy” in Ian Hare and James Weinstein (eds.) Extreme Speech and Democracy (Oxford: Oxford University Press, 2009), 327.

33

See, e.g., Barendt (n 30), 13.

34

See, e.g., Jonathan Swift, Gulliver’s Travels (1726) (Ware: Wordsworth, 1992); and Voltaire, Candide, or Optimism (1759) trans. Theo Cuffe (London: Penguin, 2005).

35

Claudia Lieb, “Freedom of Satire? Oskar Panizza’s Play Das Liebeskonzil in a Series of Trials in Germany and Austria” in Ralf Grüttemeier, ed. Literary Trials: Exceptio Artis and Theories of Literature in Court (New York: Bloomsbury, 2016), 107, 120.

36

See, e.g., Belkacem v. Belgium, Application no. 34367/14, ECtHR judgment of 27 June 2017; and Norwood v. UK, Application no. 2131/03, ECtHR judgment of 16 November 2004.

37

John Stuart Mill (1859) On Liberty (London: Penguin, 2006). See further Niraj Nathwani, “Religious cartoons and human rights,” European Human Rights Law Review (2008): 489, 499.

38

David Pannick, “Religious feelings and the European Court,” Public Law (1995): 7, 8.

39

For views in turn justificatory and critical of Otto-Preminger see, e.g., Paul Mahoney, “Universality versus subsidiarity in the Strasbourg case-law on free speech: Explaining some recent judgments” European Human Rights Law Review (1997): 364; and Lord Lester of Herne Hill, “Universality versus subsidiarity: A reply,” European Human Rights Law Review (1998): 73.

40

Wingrove v. UK, Application no. 17419/90, ECtHR judgment of 25 November 1996.

41

İ.A. v. Turkey, Application no. 42571/98, ECtHR judgment of 13 September 2005.

42

Ibid., para. 29.

43

Ibid., dissent of Judges Costa, Cabral Barreto and Jungwiert, para. 8.

44

See, e.g., Roland Dumas v. France, Application no. 34875/07, ECtHR judgment of 15 July 2010, para. 43, where comments on the functioning of the judiciary constituted a matter of public interest.

45

See e.g., Sürek v. Turkey (no. 1), Application no. 26682/95, ECtHR judgment of 8 July 1999, para. 61; and Axel Springer AG v. Germany, Application no. 39954/08, ECtHR judgment of 7 February 2012, para. 90.

46

Giniewski v. France, Application no 64016/00, ECtHR judgment of 31 January 2006.

47

Ibid., paras. 17–22.

48

Ibid., para. 52.

49

Ibid., para 50.

50

Klein v. Slovakia, Application no. 72208/01, ECtHR judgment of 31 October 2006.

51

Ibid., para. 49.

52

Ibid., para. 52.

53

Another example of a difference of approach was the fact that in Klein the ECtHR stressed that, when assessing proportionality, ‘the potential impact of the medium of expression’ was ‘an important factor’. This was because Klein’s article had been published in a weekly journal with a limited circulation (about 8,000) and was aimed at intellectually oriented readers who were intended to see it as a ‘literary joke’, paras. 47–48. This approach is in marked contrast to that of the European Court in Otto-Preminger, Wingrove and İ.A where the Strasbourg judges ignored the limited potential and actual impact of the publications.

54

Tagiyev and Huseynov v. Azerbaijan, Application no. 13274/08, ECtHR judgment of 5 December 2019.

55

One of the journalists, Mr Tagiyev, having spent thirteen months in detention, was murdered on his release, so his widow pursued this application on his behalf, para. 23.

56

Ibid., para. 8.

57

Ibid., para. 30.

58

Ibid., para. 37.

59

Ibid., para. 45.

60

Vereinigung Bildender Künstler v. Austria, Application no. 68354/01, ECtHR judgment of 25 January 2007.

61

Given that the ECtHR in Künstler was balancing Articles 8 and 10 of the ECHR, the rights of others were not religious per se in nature.

62

Ibid., para. 26.

63

Ibid., para. 33 (emphasis added).

64

Mariya Alekhina and Others v. Russia, Application No. 38004/12, ECtHR judgment of 17 July 2018.

65

Ibid., para. 206.

66

Ibid., para. 212.

67

Ibid.

68

Sekmandienis Ltd v. Lithuania, Application no 69317/14, ECtHR judgment of 20 January 2018.

69

Gachechiladze v. Georgia, Application no. 2591/19, ECtHR judgment of 22 July 2021.

70

Handyside v. UK, Application no. 5493/72, ECtHR judgment of 7 December 1976, para. 49. The ECtHR repeats this remark in virtually every Article 10 case.

71

This point was made by Judges Palm, Pekkanen and Makarczyk, dissenting, in Otto-Preminger, n 15, para. 6.

72

For a critique of the view that respect should be afforded to religious beliefs see Brian Leiter, Why Tolerate Religion? (Princeton: Princeton University Press, 2014), 68–91.

73

See e.g., Cram (n 32), 320.

74

E.S. v Austria, Application no 38450/12, ECtHR judgment of 25 October 2018.

75

Ibid., para. 46.

76

Ibid., paras. 44 and 46.

77

Ibid., para. 16.

78

Ibid., para. 52.

79

Ibid., paras. 53–55.

80

Ibid., para. 57.

81

Ibid., para. 58 (our emphasis).

82

Ibid., para. 50.

83

Ziauddin Sardar and Merryl Wyn Davies, Distorted Imagination: Lessons from the Rushdie Affair (London: Grey Seal, 1990), 165.

84

Muhammad Manazir Ahsan and Abdur Raheem Kidwai, Sacrilege versus Civility – Muslim Perspectives on the Satanic Verses Affair (Markfield: The Islamic Foundation, 1991), 36.

85

See e.g, former UK Supreme Court Justice Jonathan Sumption, “Human Rights and Wrongs,” the third of the Reith Lectures in 2019, where Lord Sumption argues that the ECtHR has usurped power by its interpretation of human rights law, https://www.bbc.co.uk/programmes/m0005msd

86

E.S. (n 74), para. 43, quoting from Otto-Preminger, para. 47.

87

Stijn Smet, “Free Speech versus Religious Feelings, the Sequel: Defamation of the Prophet Muhammad in E.S v. Austria” 15, no.1 (2019) European Constitutional Law Review: 158, 160.

88

Marko Milanovic, “Legitimizing Blasphemy Laws Through the Backdoor: The European Court’s Judgement in E.S v Austria,” October 29, 2018, https://www.ejiltalk.org/legitimizing-blasphemy-laws-through-the-backdoor-the-european-courts-judgment-in-e-s-v-austria/

89

See. e.g., Caleb Holzapfel, “Can I Say That: How an International Blasphemy Law Pits the Freedom of Religion against the Freedom of Speech” Emory International Law Review 28 (2014): 597. However, for a different perspective see Neville Cox, ‘Justifying Blasphemy Laws: Freedom of Expression, Public Morals, and International Human Rights Law,” Journal of Law and Religion 35, no. 1 (2020): 33, who argues, at 35, that ‘the statement that a blasphemy law must always represent an unjustifiable interference with the international right to freedom of expression is a dubious one’.

90

Jeroen Temperman, “Blasphemy, Defamation of Religions and Human Rights Law,” Netherlands Quarterly of Human Rights 26, no. 4 (2008): 517, 517.

91

Eva Hauksdóttir, “Restricting Freedom of Expression for Religious Peace: On the ECHR’s Approach to Blasphemy” (2021) European Convention on Human Rights Law Review 2, no.1 (2021): 75, 75–6.

92

Steven Morris and Faisal al Yafai, “Sack Moore, angry Muslims tell Telegraph,” The Guardian, December 14, 2004, https://www.theguardian.com/media/2004/dec/14/pressandpublishing.religion.

93

Judge Robert Spano, “What role for human duties, obligations and responsibilities in our European human rights discourse?”, University of Copenhagen Law Faculty, 2 December 2021. https://www.echr.coe.int/Documents/Speech_20211202_Spano_Law_Faculty_Copenhagen_ENG.pdf

94

E.S. (n 74), para. 50.

95

Jameel v. Wall Street Journal [2004] EWHC 37 (QB), 18.

96

Lieb (n 35), 115.

Bibliography

Books

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Book Chapters

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  • Lieb, Claudia. “Freedom of Satire? Oskar Panizza’s Play Das Liebeskonzil in a Series of Trials in Germany and Austria.” In Literary Trials: Exceptio Artis and Theories of Literature in Court, edited by Ralf Grüttemeier, 107122. New York: Bloomsbury, 2016.

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Journal Articles

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  • Cox, Neville. “Justifying Blasphemy Laws: Freedom of Expression, Public Morals, and International Human Rights Law.” Journal of Law and Religion 35, no. 1 (2020): 3360.

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  • Lord Lester of Herne Hill. “Universality versus subsidiarity: A reply.” European Human Rights Law Review (1998): 7381.

  • Hauksdóttir, Eva. “Restricting Freedom of Expression for Religious Peace: On the ECHR’s Approach to Blasphemy.” European Convention on Human Rights Law Review 2, no.1 (2021): 75118.

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  • Holzapfel, Caleb. “Can I Say That: How an International Blasphemy Law Pits the Freedom of Religion against the Freedom of Speech.” Emory International Law Review 28 (2014): 597648.

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Newspaper Articles

Public Speeches

Websites

European Court of Human Rights Cases

  • Axel Springer AG v. Germany, Application no. 39954/08, ECtHR judgment of 7 February 2012.

  • Belkacem v. Belgium, Application no. 34367/14, ECtHR judgment of 27 June 2017.

  • E.S. v Austria, Application no 38450/12, ECtHR judgment of 25 October 2018.

  • Gachechiladze v. Georgia, Application no. 2591/19, ECtHR judgment of 22 July 2021.

  • Giniewski v. France, Application no. 64016/00, ECtHR judgment of 31 January 2006.

  • Handyside v. UK, Application no. 5493/72, ECtHR judgment of 7 December 1976.

  • İ.A. v. Turkey, Application no. 42571/98, ECtHR judgment of 13 September 2005.

  • Klein v. Slovakia, Application no. 72208/01, ECtHR judgment of 31 October 2006.

  • Mariya Alekhina and Others v. Russia, Application No. 38004/12, ECtHR judgment of 17 July 2018.

  • Otto-Preminger-Institut v. Austria, Application no. 13470/87, ECtHR judgment of 20 September 1994.

  • Roland Dumas v. France, Application no. 34875/07, ECtHR judgment of 15 July 2010.

  • Sekmandienis Ltd v. Lithuania, Application no. 69317/14, ECtHR judgment of 20 January 2018.

  • Soering v. UK, Application no. 14038/88, ECtHR judgment of 7 July 1989.

  • Sunday Times v. UK, Application no. 6538/74, ECtHR judgment of 26 April 1979.

  • Sürek v. Turkey (No. 1), Application no. 26682/95, ECtHR judgment of 8 July 1999.

  • Tagiyev and Huseynov v. Azerbaijan, Application no. 13274/08, ECtHR judgment of 5 December 2019.

  • Vereinigung Bildender Künstler v. Austria, Application no. 68354/01, ECtHR judgment of 25 January 2007.

  • Von Hannover v. Germany (No. 2), Application no. 40660/08, ECtHR judgment of 7 February 2012.

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Other Cases

Jameel v. Wall Street Journal [2004] EWHC 37 (QB).

International Instruments

The European Convention on Human Rights and Fundamental Freedoms, 1950.

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