The 25th of October the European Court of Human Rights (ECtHR) delivered a blow to those who fervently defend the importance of freedom of speech without fear of repercussions. In the Ruling of E.S v Austria the ECtHR upheld Austria’s conviction of a woman for disparaging religious doctrine in a way that “aroused justified indignation”, which is a criminal offence under Article 188 Austrian Criminal Code.
What happened?
The facts of the case are as follows: a woman (E.S) held a series of seminars under the title “Basic Information on Islam”. These were part of a “free education package” launched by the right-wing Austrian Freedom Party (FPÖ) and open to the general public. In these seminars, she referred to the union between Prophet Muhammad, as an adult man, with his wife Aisha when she was six years old and the consummation of such union when she was nine years of age. She then proceeded to say, “And what do we call that if not paedophilia?” Austrian Courts considered that this statement was not protected under her right to freedom of expression (Art. 13 Basic Law on the General Rights of Nationals) as they felt she had intentionally implied that the Prophet was not a worthy subject of worship. Therefore, these statements were likely to cause “justified indignation”. And the European Court of Human Rights agreed.
Why do we care?
The ECtHR basically just gave its blessing to a blasphemy law. In condoning such a rule, it is granting it the power to silence. This is especially dangerous as the ECtHR is the one who interprets the European Convention of Human Rights (ECHR) through its decisions, determining how these rights are protected. Decisions, which national courts will regard as law-binding.
Blasphemy laws are no new phenomenon and generally consist in punishing those words or actions that insult religion. Such laws are very dangerous in itself as their aim is not so much to protect religious people and the legitimate exercise of their rights but the ideas and beliefs themselves, the concepts, teachings and role models that they choose to follow. To criminalize speech or actions that may arouse justified indignation is, in my opinion, the same thing. Supporting doctrines that are opposed to religious beliefs, as well as practicing religious satire, will generally arouse indignation from those who practice and believe in these values or teachings. Moreover, the concept of what may or may not lead to justified indignation is very subjective and may serve to legitimize religious outrage. This in turn will discourage people from criticizing religion and taking part in this topic which is of utmost public interest for fear of being punished, with up to 60 days in prison in the Austrian case.
What is covered by Freedom of Speech?
Freedom of expression (Art. 10 ECHR), as interpreted by the ECtHR, also encompasses the protection of ideas, information and opinions that are offensive, shocking and disturbing to the state or any sector of the population (Handyside v The United Kingdom).Of course, hate speech, as any form of expression which incites, promotes or spreads hatred, discrimination or violence, is not protected under Art. 10 ECHR. But promoting violence or discrimination towards a group of people is a far cry from simply hurting someone’s feelings. It would be different if it had been implied that all Muslims have pedophilic tendencies. Are all satirical or critical statements to be considered offensive? People of a certain religion or of certain beliefs must tolerate the denials by others of their beliefs as well as the propagation of doctrines contrary to their faith (Otto-Preminger-Institute v Austria).
We do not want to ignore the fact that, E.S was a member of the FPÖ, a party which defends anti-immigration and anti-Islam policies. Therefore, we could assume that, in line with the party’s ideas, this statement, besides unsensitive and, to a certain point inaccurate, was intentionally provocative. However, this is all part of political freedom and diversity, and the discussion of what these limits may or may not be is a completely different kind of conversation. If we were to assume that because of their political stance everything the members of the FPÖ ever said was hate speech in disguise, their mouth would remain eternally shut.
Where does this leave us?
The fact is that our democratic and pluralistic values protect all kinds of ideas, well-articulated and inclusive thoughts as well as poorly formed and exclusive opinions. So even if E.S was alluding to the fact that in her opinion Mohammed is not a worthy subject of worship, wouldn’t that fall under her right as an individual to express herself on this subject? And even if it is likely to offend a certain group of people, does that justify considering it a criminal offense? Apparently, the European Court of Human Rights seems to think so, which should certainly be enough to arouse justified indignation in all of us.
