He argues that states have to combat the “trivialisation of anti-Semitism” and, in particular that
“national political leaders should vigorously condemn antisemitic speech and attacks when they occur, sending a clear signal that such hatred is unacceptable and will be resolutely punished”.
This is an important and timely message. Yesterday was International Holocaust Remembrance Day and the 69th anniversary of the liberation of the Auschwitz concentration camp. The political and ideological battle against antisemitism remains of crucial importance in the twenty first century.
But even in the face of such an abhorrent doctrine, it is still necessary to consider freedom of expression. Unfortunately, the Commissioner’s exposition of the problem fails to deal with this important issue. The right to freedom of expression is not mentioned once in his document. As a result he does not address the need for and of importance of the careful balancing of rights which is particularly difficult in this area.
To take just one example, the Commissioner refers to the EU Framework Decision 2008/913/JHA of 28 November 2008 “on combating certain forms and expressions of racism and xenophobia by means of criminal law” saying that national authorities “should prosecute and effectively sanction any political party or group which puts forward antisemitic arguments in its discourse and activities”. But he fails to mention that this decision includes a crucial condition for the prosecution of such offences: the likely incitement of violence or hatred.
This is particularly relevant in relation to the issue of Holocaust denial. In its recent decision in Perinçek v. Switzerland, the Court of Human Rights underlined the importance of the right openly to discuss questions of a sensitive and controversial nature. What is properly punishable by the criminal law is not the denial or trivialisation of historical facts but the incitement of violence or hatred. Too restrictive an approach carries the risk of the criminal law encroaching on legitimate political or historical debates (see further the comment on this case on this blog).
Another area of concern – and of immediate relevance in the light of the Dieudonné case in France – is the application of criminal laws on racial hatred to those who are deliberately seeking to shock to make political or social points. The criminalisation of writers, performers, comedians or cartoonists who deploy racial stereotypes or racist language is an dangerous path which needs to be trodden with great care. As Padraig Reidy argued recently, even if Dieudonné is a racist he has a right to free speech. Intentional incitement to hatred or violence is unacceptable even when done from the comedy stage but, in such cases, there should only be proportionate state action where there is demonstrable necessity. And the question remains as to whether banning performances and initiating criminal prosecutions against Holocaust denial and antisemitic performers are the most effective ways to combat antisemitism and hate speech.
The balance between freedom of expression and the proper protection of the rights of minority or oppressed groups is a particularly difficult one to strike. But it is always important to bear in mind the fact that restrictions on freedom of expression must be necessary and proportionate to the aim of protecting the rights of others. Mere shock or offensiveness is not sufficient to criminalise speech where there is no incitement of violence or hatred. It is unfortunate that the Council of Europe Commissioner on Human Rights has discussed these issues without even mentioning the freedom of expression dimension.