Wednesday 16 July 2008

Hate Speech Case

Restricting hate speech is often a contentious point from the perspective of human rights. Last week, the Court issued a judgment on such speech in the French case of Soulas and others. Soulas was the publisher of a book written by Guillaume Faye entitled 'La colonisation de l'Europe' (the colonisation of Europe; see picture). In the book, Faye argued that Europe was gradually being overtaken by Muslims and that they had already established control over some territories (certain banlieues of Paris for example). The skirmishes in these places with the authorities were indeed, according to the author, the start of a civil war which was a necessary step in the 'reconquista' by Europeans of territories lost to the enemy, Muslims. An ethnic war was thus a necessary solution, Faye argued. Soon after the publication of the book the author, the publisher and the publishing firm were prosecuted. The former two were ordered to pay fines of 7,500 euros each for violating a law which prohibited the incitement of hatred and violence against a specific group.

In Strasbourg, the applicants complained that their conviction by France violated their freedom of expression as protected by Article 10 ECHR. The Court first indicated that the issues addressed in the book - immigration and integration of foreigners - were issues of general importance. It then went on to state that addressing possible problems arising from such immigration was a task for national authorities, which should be given a large margin of appreciation since so much depended on the historical, demographic and cultural context. The Court indicated that the book was written in an accessible style and addressed itself at a large audience. It was polemical and tended to present the effects of immigration as catastrophic. After mentioning that the fight agaisnt racism in all its manifestations is of high importnace, the Court considered that the reasons given by the national courts for the conviction were relevant and sufficient: the book aimed to nurture feelings of rejection against certain communities by calling them the enemies in an ethnic war. The French courts had remained within the permissible margin of appreciation.

Notably, on the penalty, the Court stated that 7,500 euros might seem high in the particular context, but that the applicants could also have been sentenced to imprisonment under the applicable law (sic!). Rather a strange argument. In addition, one may wonder what would have happened if the contents of the book would have been part of an article in the press, which is usually given a high level of protection by the Court, especially when it concerns issues of general importance.

France had also argued that the application was an abuse of rights as prohibited by Article 17 ECHR and an abuse of the right to petition. The Court rarely uses Article 17, and this invocation reminds us of the case law of the former European Commission of Human Rights, which did apply Article 17 to declare several hate speech cases inadmissible. In Soulas and others the Court the court dismissed the argument by stating that the contents of the book are not sufficiently severe to bring Article 17 into play. Although I am personally a proponent of always assessing hate speech cases under Article 10, I do not find the Court's reasoning particularly convincing here. Especially since it did apparently judge the contents of the book to be severe enough to allow the French to take legal action against it.

The outcome of the case may be morally satisfactory, the reasoning used would not win a beauty contest for the best-argued judgment.

Almost amusingly, the applicants also claimed that the French actions were discriminatory, since the authorities did not proscute 'comparable' foreign authors such as Samuel Huntington or V.S. Naipaul! The Court held that these claims had not been sufficiently substantiated.

Again, the judgment is available only in French, but the press release in English can be found here.

This Thursday a motherload of 44 judgments is coming up. I will try and address the most notable ones from next week Wednesday onwards.