Philip Hensher: Yes
The first thing to say about the contested cartoons published by a Danish paper last September is that some are, indeed, offensive. Jyllands-Posten took up the case of a Danish author who could find no one to illustrate a book about the prophet Muhammad. The paper, presenting this as a case of self-censorship, asked 12 illustrators for depictions of the prophet, and the one that has caused immense offence shows the prophet wearing a turban that conceals a fizzing bomb.
The cartoonist can’t be accused of ignorance or lack of research – he has scrupulously transcribed a verse from the Qur’an on the turban – and there’s no doubt that this is seriously offensive, and not just to Muslims but anyone who values truthful debate. It just isn’t true to say that, from its founding, Islam would inevitably lead to suicide bombing, or even that its founder’s teachings bear responsibility for this particular brand of atrocity.
That accusation, if made of any religion or secular school of thought that has spawned violent followers – a comparable image of Marx, say, or, quite plausibly, Darwin – would in most cases be just as offensive and wrong. In this case there is a special, deliberate offence to Muslims because the religion has an edict against such depictions.
Whether action should be taken, in a western democracy, against an argument that is just wrong, or against deliberate offence caused, however great, is another question. It’s difficult to see that personal offence should be the basis of legal action in a state professing commitment to freedom of speech. The state takes a view on when personal offence is reasonable and when it threatens to infringe someone else’s liberty, largely based on whether offence is caused generally, or just to a section of the community. Do the Danish cartoons cause offence only to isolated individuals? Or do they so attack anyone professing to be a Muslim that they would be caught by the UK’s religious hatred law?
The cartoons almost certainly look very different to a Muslim living in a western democracy and to someone in the Muslim world. It’s easy to sympathise with a Muslim living in Denmark, who would feel directly persecuted by these images. The Copenhagen Muslim interviewed in yesterday’s Guardian certainly had a point when he compared them to the comments of a Danish MP who apparently called Muslims “a cancer in Denmark”. Many people in his situation live difficult lives, and such images won’t improve matters much.
But along with the sympathy one has to feel for people in that beleaguered situation, the uses that the Danish cartoons have been put to in the Muslim world must be challenged. Around the world, the anti-Danish campaign is being used by Islamist political groups to rally support for extreme causes. The aim of many such groups is, through pressure, to limit free speech on religious matters in the west, and entirely suppress it at home.
It is often forgotten to what degree law-making in the west is still seen across the globe as a model of good practice; and for that single reason our freedom of speech, even if exercised for the purposes of causing offence, even if simply wrong in practice, can’t be eroded. To take an example: in Bangladesh in 1994, an attempt was made to introduce a law limiting what could be said on religious subjects. It failed because, it was argued, its terms could not be paralleled in the laws of any democracy. Britain’s new law on religious hatred, even in its limited form, removes that defence from liberal voices outside Europe.
Debate on a great many subjects is already severely limited in the Muslim world. Reading Robert Irwin’s brilliant new book, For Lust of Knowing: The Orientalists and their Enemies, it is a shock to learn that serious scholarly work by historians on the first years of Islam has to be expressed in code, lest it cause offence to the faithful by contradicting the received account. It is unlikely that a newspaper in a Muslim country will ever want to commission a cartoon along the Danish lines. But we are really talking about groups, even in relatively liberal Muslim countries, that want to draw the lines of permitted debate much tighter than they are at present.
In practice, our freedom of speech is not seriously threatened. Cartoonists will probably be careful about exercising good taste in such an area, as they already do on parallel subjects – for instance, in drawing an Israeli or Jewish politician, a cartoonist will probably avoid the hateful conventions of anti-semitic caricature. After the boycotts and a few noble-sounding words, we will probably go on much as before.
And that’s probably the best thing to do. If anti-democratic forces in the Muslim world can make such effective use of a cartoon in a small European country, they would be much more encouraged by any signs of restriction on our part. Anyone in the Muslim world arguing for freedom of speech, on religious or other matters, has only one place to look to – the west. We ought to take into account the sorts of factions in the Muslim world who would regard legal restrictions on our side as part of a wider victory.
· Philip Hensher is the author of The Mulberry Empire
Gary Younge: No
In January 2002 the New Statesman published a front page displaying a shimmering golden Star of David impaling a union flag, with the words “A kosher conspiracy?” The cover was widely and rightly condemned as anti-semitic. It’s not difficult to see why. It played into vile stereotypes of money-grabbing Jewish cabals out to undermine the country they live in. Some put it down to a lapse of editorial judgment. But many saw it not as an aberration but part of a trend – one more broadside in an attack on Jews from the liberal left.
A group calling itself Action Against Anti-Semitism marched into the Statesman’s offices, demanding a printed apology. One eventually followed. The then editor, Peter Wilby, later confessed that he had not appreciated “the historic sensitivities” of Britain’s Jews. I do not remember talk of a clash of civilisations in which Jewish values were inconsistent with the western traditions of freedom of speech or democracy. Nor do I recall editors across Europe rushing to reprint the cover in solidarity.
Quite why the Muslim response to 12 cartoons printed by Jyllands-Posten last September should be treated differently is illuminating. There seems to be almost universal agreement that these cartoons are offensive. There should also be universal agreement that the paper has a right to publish them. When it comes to freedom of speech the liberal left should not sacrifice its values one inch to those who seek censorship on religious grounds, whether US evangelists, Irish Catholics or Danish Muslims.
But the right to freedom of speech equates to neither an obligation to offend nor a duty to be insensitive. There is no contradiction between supporting someone’s right to do something and condemning them for doing it. If our commitment to free speech is important, our belief in anti-racism should be no less so. These cartoons spoke not to historic sensitivities, but modern ones. Muslims in Europe are now subjected to routine discrimination on suspicion that they are terrorists, and Denmark has some of Europe’s most draconian immigration policies. These cartoons served only to compound such prejudice.
The right to offend must come with at least one consequent right and one subsequent responsibility. If newspapers have the right to offend then surely their targets have the right to be offended. Moreover, if you are bold enough to knowingly offend a community then you should be bold enough to withstand the consequences, so long as that community expresses displeasure within the law.
So far this has been the case. Despite isolated acts of violence that should be condemned, the overwhelming majority of the protests have been peaceful. Several Arab and Muslim nations have withdrawn their ambassadors from Denmark. There have been demonstrations outside embassies. Meanwhile, according to Denmark’s consul in Dubai, a boycott of Danish products in the Gulf has cost the country $27m.
The Jyllands-Posten editor took four months to apologise. That was his decision. If he was not truly sorry then he shouldn’t have done so; if he was then he should have done so sooner. Given that it took yet one more month for the situation to deteriorate to this level, these recent demonstrations can hardly be described as kneejerk.
“This is a far bigger story than just the question of 12 cartoons in a small Danish newspaper,” Flemming Rose, the culture editor of Jyllands-Posten, told the New York Times. Too right, but it is not the story Rose thinks it is. Rose says: “This is about the question of integration and how compatible is the religion of Islam with a modern secular society – how much does an immigrant have to give up and how much does the receiving culture have to compromise.”
Rose displays his ignorance of both modern secular society and the role of religion in it. Freedom of the press has never been sacrosanct in the west. Last year Ireland banned the film Boy Eats Girl because of graphic suicide scenes; Madonna’s book Sex was unbanned there only in 2004. American schoolboards routinely ban the works of Alice Walker, JK Rowling and JD Salinger. Such measures should be opposed, but not in a manner that condemns all Catholics or Protestants for being inherently intolerant or incapable of understanding satire.
Even as this debate rages, David Irving sits in jail in Austria charged with Holocaust denial for a speech he made 17 years ago; the Muslim cleric Abu Hamza is on trial in London for inciting racial hatred; and a retrial has been ordered for the BNP leader, Nick Griffin, on the same charges. The question has never been whether you draw a line under what is and what is not acceptable, but where you draw it. Rose and others clearly believe Muslims, by virtue of their religion, exist on the wrong side of the line.
As a result they are vilified twice: once through the cartoon, and again for exercising their democratic right to protest. The inflammatory response to their protest reminds me of the quote from Steve Biko, the South African black nationalist: “Not only are whites kicking us; they are telling us how to react to being kicked.”
In fear of cartoons
The January and February 2015 shootings in Denmark and France in which cartoonists, journalists, a film maker, police officers and a guard at a synagogue were killed over the depiction of the Prophet Mohammed in cartoons has brought renewed focus on questions of free speech, hate speech and the role of cartoons and cartoonists in political debate.
Cartoons have caused controversy ever since they started appearing in Western European newspapers in the nineteenth century. Using one or a short series of pictures to comment on orsatirise news and current affairs, they often explore the outer boundaries of what society considers to be “good taste”. Exaggeration is a key feature and this means that the harsher the event satirised, the more biting the cartoon tends to be.
For none has this been more true than for the so-called “Mohammed cartoons”, and the fall-out of their publication—in 2005—continues 10 years later. While there is no excuse for murder, the terrorist attacks in Denmark and France have led to renewed debate about the limits of free speech and, in particular, what constitutes hate speech. Are the Mohammed cartoons racist? Did they offend Islam? Is there a right not to be offended, and where is the line between offence, insult and incitement of hatred?
The right to freedom of expression is not an absolute right. Even in the US, which has the strongest constitutional protection for free speech of any country in the world, there are limits. But where is the line to be drawn, particularly as regards offensive speech and incitement to hatred? A closer look at recent French and other European cases as well as decisions from the European Court of Human Rights may help inform this debate.
It should be noted at the outset that both France and Denmark, where the Mohammed cartoons have been published most prominently, have very strict hate speech laws. In Denmark, it is a criminal offence to publically “mock or scorn the religious doctrines or acts of worship of any lawfully existing religious community”. In France, insulting individuals on the basis of their religion or inciting hatred is a criminal offence, as is inciting or “glorifying” terrorism or holocaust denial. The French laws are in frequent use.
In the immediate aftermath of 9/11, a cartoonist in the Basque country was fined for a satirisingthe attack on the Twin Towers despite arguing that he intended to criticise US politics. More recently,
comedian-turned-activist Dieudonné M’bala M’bala has had several convictions for anti-Semitism and is currently on trial for a Facebook post in which he wrote, following the march in Paris in support of Charlie Hebdo (in which he participated), “I feel like I am Charlie Coulibaly”. Similar legal action has reportedly been taken against several hundred others in the aftermath of the Charlie Hebdo attacks. Yet neither in Denmark nor in France were the Mohammed cartoons ever found to fall foul of the law. Does this mean that hate speech laws are used selectively? A closer look at the litigation around the cartoons helps clarify this question.
The Mohammed cartoons in the French and Danish courts
Over the years, Charlie Hebdo—the magazine subject of the January 2015 attack in Paris in which the gunmen called out the names of the cartoonists before shooting them—has been sued nearly 50 times in the French courts, mostly by religious groups. Catholic groups have been the most litigious, followed by Islamic associations and right-wing extremists—all of whom CharlieHebdo offends with great vigour and enthusiasm. The magazine has won 75 per cent of cases brought against it, including nearly all the hate speech cases; the only cases it has lost have been defamation cases
The case that best illustrates the hate speech debate is the one that followed Charlie Hebdo’s re-publication in 2006 of the Mohammed cartoons, which had initially been published in a Danish
newspaper, Jyllands-Posten. A coalition of Islamic groups sued Charlie Hebdo and its editors on the grounds that three of the cartoons in particular insulted their religious beliefs. The first, which appeared on the magazine’s cover, showed the prophet Mohammed crying and saying, “It’s hard being loved by idiots.” The caption read, “Mohammed overwhelmed by fundamentalists.” The second showed the prophet Mohammed apparently guarding the gates of heaven and saying to a line of suicide bombers, “Stop! Stop! We have run out of virgins!” The third showed the prophet Mohammed wearing a turban in which a bomb is concealed with the fuse lit.
The Paris “Tribunal de Grande Instance” ruled in 2007 that the cartoons did not incite hatred and therefore did not fall foul of the criminal law. The Court emphasised the importance of protecting free
speech in a democratic society and the need to tolerate the viewpoints of others—including viewpoints that some may find offensive. The Court also noted that the cartoons appeared in a satirical magazine which the public had a choice not to buy—they did not appear on billboards by the side of the road which everyone would see. As for the cartoons themselves, the Court ruled that two of the three were not aimed at all Muslims, but merely satirised violent extremists. This was not hate speech.
However, the Court held that the third cartoon, showing the prophet Mohammed with a bomb in his turban, was much “darker” than the others and could be seen as offensive to all Muslims. The court
observed that this cartoon did not stir a laugh or a smile but instead instilled anxiety and fear. The Court rejected the editor’s defence that he had published the cartoon to denounce the apparent appropriation of Islam by violent extremists. Instead, it cited witnesses who had testified that the cartoon was part of “a long tradition of Islamophobia, depicting the prophet as a ‘belligerent and concupiscent’ figure” and that it reduced “a multidimensional character to one aspect”. This meant that, taken in isolation, the cartoon might well overstep the mark: it constituted an actionable “insult” by suggesting “that terrorist violence is inherent in Islam”. However, for the purposes of French criminal law, the context of the publication needs to be taken into account and the Court went on to hold that its re-publication was justified in the setting of the wider international debate around the cartoons. Charlie Hebdo republished them as an act of solidarity as well as to comment on and contribute to this debate. This meant that Charlie Hebdo did not intend to incite hatred and could not be seen as propagating “hate speech”.
The decision was upheld on appeal, and the Court of Appeal provides a much stronger defenceof the third cartoon. Agreeing with the testimony of Charlie Hebdo’s editor before the court of first instance, the Paris Court of Appeal holds that the third cartoon clearly criticises Islamic extremists and “highlights, in [Charlie Hebdo’s] well-known satirical but reasoned manner, the danger of religious fanaticism, of the appropriation of Islam [for] political purposes and attacks on freedom of expression”. The Court of Appeal disagrees that the cartoons suggest that Islam is a violent religion and it does not see any confusion between Muslims in general and the minority of terrorists who claim Islam to justify their crimes. The Court of Appeal concludes that “The cartoons … have by their publication, participated in the public debate on freedom of expression which was undermined by controversy, intimidation and reactions to their dissemination in the Danish newspaper … The cartoons satirise a minority of extremists within the Islamic religion and not the whole of the Muslim community. They do not constitute an insult or a personal and direct attack against a group of people because of their religious beliefs and do not exceed the permissible limits of the right to freedom of expression.”
At this point, it is worth recalling why Jyllands-Posten, the Danish newspaper, had published the cartoons in the first place. They did so not to provoke hatred or anger. They published the cartoons because of a growing concern around self-censorship on issues of religion and, in particular, Islam. Amongst others, it had been reported that the writer of a children’s book, The Koran and the Life of the Prophet Muhammad, had trouble finding an illustrator for it. In response,Jyllands-Posten invited members of the Danish Newspaper Illustrators’ Union to “draw Muhammad as they saw him”. In September 2005, Jyllands-Posten published these cartoons as part of an article, “Freedom of Expression”, in which they expressed concern that a fear of upsetting Islamic sentiment was restricting free speech, citing a number of other examples including a museum that had removed artwork and translators of essays critical of Islam not wanting to be named.
The newspaper’s culture editor wrote: “Modern, secular society is rejected by some Muslims. They demand a special position, insisting on special consideration of their own religious feelings. It is incompatible with contemporary democracy and freedom of speech, where one must be ready to put up with insults, mockery and ridicule. It is certainly not always attractive and nice to look at, and it does not mean that religious feelings should be made fun of at any price, but that is of minor importance in the present context. … we are on our way to a slippery slope where no-one can tell how the self-censorship will end. That is why Morgenavisen Jyllands-Posten has invited members of the Danish editorial cartoonists union to draw Muhammad as they see him.”
The publication led to immediate protests. Jyllands-Posten was accused of gratuitously offending Islam and in response to a complaint by a coalition of Islamic groups, 11 ambassadors from majority-Muslim countries wrote to the Danish Prime Minister asking for a meeting to discuss what they saw as an “on-going smear campaign in Danish public circles and media against Islam and Muslims”. They also asked the Prime Minister to “take all those responsible to task under the law of the land in the interest of inter-faith harmony, better integration and Denmark’s overall relations with the Muslim world”. The Prime Minister refused to meet with the ambassadors and wrote that “freedom of expression has a wide scope and the Danish government has no means of influencing the press. However, Danish legislation prohibits acts or expressions of blasphemous or discriminatory nature. The offended party may bring such acts or expressions to court, and it is for the courts to
decide in individual cases.”
This dismissive response—later described as Denmark’s worst international diplomacy incident since the Second World War—provoked further international action, including violent attacks against Danish embassies around the world. It also led to the lodging of a formal complaint against Jyllands-Posten under ss.140 and 266b of the Danish Criminal Code, which prohibit hate speech and blasphemy. However, the Danish Director of Public Prosecutions declined to prosecute. His detailed opinion discusses all of the cartoons and concludes that they were not actionable under Danish law. Specifically with regard to the drawing of the prophet Mohammed with a bomb in his turban, which the Paris Court would later describe as “dark” and potentially actionable, the Director of Public Prosecutions concluded that, “the drawing could be understood to mean that violence or bomb attacks have been committed in the name of Islam”. This, he said, would be a contribution to public discussion on terror and an expression of the view that religious fanaticism has led to terrorist acts, which would be a legitimate exercise of the right to freedom of expression. Furthermore, the Director of Public Prosecutions considered that even if the cartoon would be perceived as an insult and affront to Muslims, by suggesting that the prophet Mohammed was a violent person, this still would not be punishable as hate speech. Under s.140, the minimum threshold for prosecution as a religious “insult” is that the cartoon indicates “contempt” and “debasement”, and this threshold was not met.
Not content with this outcome, the complainants then lodged a private libel action againstJyllands-Posten’s editor-in-chief and cultural editor claiming that the cartoons were “offensive and
insulting” and that they “attacked the honour of believers because they portrayed the Prophet as war-like and criminal and made a clear link between Muhammad, war and terrorism”. The AarhusCity Court dismissed the complaint, holding that the cartoons were “not offensive … even if the text accompanying the pictures could be read as being derogatory and mocking … Of course it cannot be excluded that the drawings offended some Muslims. But there is no sufficient reason to assume that the cartoons are or were intended to be insulting … or put forward ideas that could hurt the standing of Muslims in society.”
By now, Jyllands-Posten accepted they had caused offence to many Muslims and apologised. However, the complainants went on to file a complaint with the European Court of Human Rights—but before discussing this, it may be interesting to look at how other European courts have dealt with the cartoons’ controversy.
Perhaps unsurprisingly, the cartoons have been appropriated by right-wing politicians in various European countries who have used them for campaigning purposes (the politicians probably don’t appreciate the irony that the cartoons themselves satirised the appropriation of Islam for extremist political purposes). This in turn has led to litigation.
In the Netherlands, one of the cartoons featured centrally in the prosecution of a right-wing politician, Geert Wilders. Wilders had published a movie which included the cartoon featuring Mohammed with a bomb in his turban to which he added, at the end of the movie, an explosion. In the movie he strongly criticised radical Islam and he was prosecuted for inciting hatred. He was acquitted on the ground that his criticism was aimed at the religion of Islam and radical Islam in particular, not individual Muslims. In its decision to acquit, the Dutch court relied on the European Court of Human Rights’ decisions in Féret v Belgium, which upheld the conviction of a Belgian politician who had handed out leaflets that presented immigrants as criminals; andErbakan v Turkey, in which the Court condemned a hate speech conviction for a former prime minister of Turkey who had called for a political line to be drawn on the basis of religion.
In Germany, the cartoons were the subject of litigation in 2012 when a far-right political party, ProDeutschland, wanted to use them on banners in demonstrations outside mosques. The mosques objected to what they viewed as wanton insult and sought an injunction before the Berlin administrative court. The injunction was refused on the grounds that the cartoons were protected under the right to artistic freedom and that the risk to public order that the mosques had claimed was not made out. The Higher Administrative Court added that the cartoons did not qualify as an insult to religion under art.166 of Germany’s Criminal Code, holding that this does not include “every disparaging statement, but only those that are particularly hurtful in form and substance”. The cartoons did not qualify as such.
In the UK, the cartoons featured in the conviction of an atheist in 2010 for religiously aggravated harassment. The cartoons had been left in a prayer room in Liverpool’s John Lennon airport along with
cartoons mocking Christianity. The atheist reportedly objected that there was a prayer room at John Lennon airport at all, given Lennon’s “imagine no religion” line in the song, “Imagine”. He was given a suspended six-month sentence and banned from carrying any anti-religious leaflets in public. His previous convictions, including for switching off Christmas music in a supermarket because he found it offensive, will not have helped him and he did not appeal. In 2007, prosecutors refused to initiate proceedings against a Cambridge student who had reprinted one of the Mohammed cartoons in a college magazine. In an attempt at satire, he had placed one of the cartoons next to a photo of the president of the student union but had swapped their names and added that one was a “violent paedophile” while the other was “a prophet of God, a great leader and an example to us all”. There was outrage in the local community and police wanted to prosecute. However, they were advised by the Crown Prosecution Service that they should tell the student to just “grow up”.
European Court—guiding principles
As the Erbakan and Féret decisions cited by the Dutch court indicate, European human rights law treats cases such as this with some caution. The European Convention on Human Rights protects the right to freedom of expression as well as the right to freedom of religion and condemns incitement to hatred. Aside from the Erbakan and Féret cases, which concern alleged hate speech by politicians, the European Court of Human Rights has dealt with several cases involving inflammatory books, cartoons or artwork. In a 1991 case concerning Salman Rushdie’sbook, The Satanic Verses, a group of Muslims complained that the failure by the UK to ban the book—which they considered to be clearly blasphemous—violated their right to peaceful enjoyment of their religious beliefs. Their application was rejected on the grounds that they could not rely on their own right to freedom of religion to enforce a book ban—freedom of religion did not include a right not to be offended. In a later case against Poland involving a picture of Jesus and Mary wearing gas masks, a similar complaint was also rejected. The European Commission on Human Rights held in that case that, “members of a religious community must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith”.
When the article in question is not seen as having some broader societal value, the Court has been less sympathetic. In 1994, the Court upheld the ban in Austria of a film which presented the Christian god as old, crippled and ineffective; Jesus as a somewhat dim “mummy’s boy” and the Virgin Mary as promiscuous. They are all portrayed as conspiring with the devil and the Austrian authorities had banned the film on the grounds that it insulted Christians. The European Court held that this ban did not violate the right to freedom of expression, because the film-makers had been “gratuitously offensive” and the Austrian authorities had been correct to “prevent that some people should feel the object of attacks on their religious beliefs in an unwarranted and offensive manner”.
In contrast, in a 2006 ruling the Court held that a conviction for religious insult for a French newspaper article which criticised Catholic church doctrine and pointed out links with the origins of the Holocaust did violate the right to freedom of expression. The Court considered that this article had contributed to a debate on the various possible reasons behind the Holocaust, and that this was clearly an issue of public interest. While the European Court of Human Rights has been building its jurisprudence in a reasonably clear direction, when it had a chance to rule on the Mohammed cartoons case it declined to do so. Following the Danish prosecutor’s refusal to prosecute the authors of the cartoons in Jyllands-Posten, two associations of Muslims lodged a complaint with the European Court of Human Rights. They argued that not only had the publication of the cartoons violated their rights to freedom of religion and non-discrimination, under arts 9 and 14, but that the publication also constituted a violation of art.17 of the Convention, which prohibits the abuse of rights to undermine other rights (in this case, the abuse of free speech to undermine freedom of religion). Unfortunately, the Court ducked out of what would have been an excellent and high-profile opportunity to establish case law on jurisdictional grounds (the applicants were Moroccan residents and could not establish a link with Denmark).
The English atheist’s conviction for religiously aggravated harassment aside, it is clear that courts across Europe have been broadly protective of the cartoons. They have been deemed hurtful but not to the extent that they incite hatred or otherwise fall foul of blasphemy and related criminal laws in Germany, France, Denmark and the Netherlands—even when they have been appropriated by right-wingers for anti-Islamic political causes. This would appear to be in line with the case law of the European Court of Human Rights, which provides a clear guiding principle: the right to freedom of expression means that democratic societies need to be able to discuss current affairs and issues of public interest, and society needs to accept that some among us hold strong opinions. That is what tolerance and pluralism is all about. Inciting hatred against individuals simply on grounds of their religious beliefs oversteps the line; but satirising violent extremists within a religion is part and parcel of democratic society. Satirising a religion as such should also be permissible so long as any insults are not entirely gratuitous. The line is crossed when hatred is incited against individuals on the grounds of their religious beliefs: that constitutes hate speech. This means that cartoonists have every right to satirise Islamic fundamentalism, an issue that has dominated public debate ever since the early 2000s.
Unfortunately, the prosecutions of Dieudonné M’bala M’bala and several hundred others who have been arrested in France since the Charlie Hebdo massacre for indicating sympathy with the terrorists do not seem to be guided by the same principle. Many of those arrested are being charged under anti-terror laws drafted or tightened up in the aftermath of 9/11 which criminaliseglorifying, indicating sympathy with or “indirectly encouraging” terrorist acts. Although there is a clear tension between such vaguely defined offences and the right to freedom of expression, the European Court of Human Rights has allowed prosecutions even in tenuous cases. For example, it can be questioned whether the fine imposed on cartoonist Denis Leroy for satirising the 9/11 attack, however unfunny and offensive his cartoon may have seemed at the time, was truly “necessary in a democratic society”. Nevertheless, it was upheld by the European Court of Human Rights which agreed that it had been capable of inciting copycat attacks—although the only evidence in support of this contention was a page full of letters and emails published in the magazine’s next edition, which would appear to show that the only reaction had been to stir up debate (the desired function of exercising the right to freedom of expression).
Nearly all those arrested following the Charlie Hebdo massacre in France are Muslims and this has led to a strong and not entirely unfair sentiment that they are singled out for sanction while those who mock their religion are free to continue do so. It has been reported that in the three weeks following the attack on Charlie Hebdo, there have been 257 legal cases of people accused of condoning or provoking terrorism. Around 41 of these have been fast-tracked through the courts and 18 people have been given prison sentences. A 10-year-old child has been among those brought in for questioning by prosecutors for saying that she agreed with the terrorists. Add to this the one-sided nature of France’s Holocaust denial laws (however vulnerable the Jewish community still is) and the ban on wearing full-face veils in public, as questionably upheld by the Grand Chamber of the European Court of Human Rights, and the resulting picture is emphatically not one of a society guided by principles of “pluralism”, “tolerance” and “broadmindedness”, the supposed hallmarks of modern democracy.
The problem is not one of over-protecting cartoons that mock religious extremists as much as an overbearing and one-sided use of the criminal law against one, increasingly cornered and vulnerable, religious community. Europe’s top constitutional courts—including but not limited to the European Court of Human Rights—need to take the lead and guide societies back onto a path that guarantees respect for the human rights of all who live in Europe. The law should continue to provide robust protection for freedom of speech and reject selective protection of minorities as well as vaguely drafted anti-terror laws that confer overly broad discretion on prosecutors and courts. Society can and should criminalise and prosecute true instances of hate speech, but it should do so evenly and in keeping with those guiding principles—”pluralism”, “tolerance” and “broadmindedness”. As stated by the European Court of Human Rights: “the role of the authorities … is not to remove the cause of tension by eliminating pluralism, but to ensure that the competing groups tolerate each other”.
This article was first published by Sweet & Maxwell in the European Human Rights Law Review, Issue 2 of 2015, and is reproduced by agreement with the Publishers. Click here to download the article in PDF, with full footnotes included. It is based on earlier columns by the author on the same topic published by the Centre for Media Pluralism and Media Freedom at the RobertSchuman Centre for Advanced Studies of the European University Institute (“When Satire Incites Hatred: Charlie Hebdo and the Freedom of Expression Debate”) and a special edition of the Montenegrin Human Rights Action bulletin (“When Satire Inspires Hatred”).