Monday 10 May 2010

Hate Speech Decision on Le Pen

It is my pleasure to feature another guest post on this blog by professor Dirk Voorhoof of Ghent University on last week's Court decision in the case of Le Pen v. France (available only in French), the (in)famous French politician:

Admissibility decision in the case of Le Pen v. France (application no. 18788/09)
Freedom of political speech no justification for hate speech

In 2005, Mr Jean-Marie Le Pen, the president of the French “National Front” party, was fined 10,000 euros for “incitement to discrimination, hatred and violence towards a group of people because of their origin or their membership or non-membership of a specific ethnic group, nation, race or religion”, on account of statements he had made about Muslims in France in an interview with Le Monde daily newspaper. He asserted, among other things, that “the day there are no longer 5 million but 25 million Muslims in France, they will be in charge”.

The Paris Court of Appeal sentenced him to another fine, of the same amount, in 2008 after he commented on the initial fine, in the following terms, in the weekly Rivarol: “When I tell people that when we have 25 million Muslims in France we French will have to watch our step, they often reply: ‘But Mr Le Pen, that is already the case now!’ – and they are right." The Court of Appeal considered that Mr Le Pen’s comments to the newspaper suggested that the security of the French people, whose reactions allegedly went further than his own offending statements, depended on them rejecting the Muslim community. It held that the applicant’s freedom of expression was no justification for statements that were an incitement to discrimination, hatred or violence towards a group of people.

The Court of Cassation dismissed an appeal lodged by Mr Le Pen in which he argued that his statements were not an explicit call for hatred or discrimination and did not single out Muslims because of their religion, and that the reference to Islam was aimed at a political doctrine and not a religious faith. In a decision of 20 April 2010 the ECtHR has now declared the application of Mr. Le Pen, relying on Article 10 ECHR (freedom of expression) manifestly ill-founded and hence inadmissible.

The ECtHR is of the opinion that the French authorities’ interference with Mr Le Pen’s freedom of expression, in the form of a criminal conviction, had been prescribed by law (Art. 23-24 of the French Press Freedom Act, Loi sur la Liberté de la Presse) and pursued the legitimate aim of protecting the reputation or rights of others. Again it was crucial to decide whether or not the conviction of Mr Le Pen was to be considered necessary in a democratic society, taking into account the importance of freedom of expression in the context of political debate in a democratic society. The Court reiterated that freedom of expression applied not only to “information” or “ideas” that were favourably received, but also to those that offended, shocked or disturbed. Furthermore, anyone who engaged in a debate on a matter of public interest could resort to a degree of exaggeration, or even provocation, provided that they respected the reputation and rights of others. When the person concerned was an elected representative, like Mr Le Pen, who represented his voters, took up their concerns and defended their interests, the Court has to exercise the strictest supervision of this kind of interferences with freedom of expression.

Le Pen’s statements had been made in the context of a general debate on the problems linked to the settlement and integration of immigrants in their host countries. Moreover, the varying scale of the problems concerned, which could sometimes generate misunderstanding and incomprehension, required considerable latitude to be left to the State in assessing the need for interference with a person’s freedom of expression. In this case, however, Mr Le Pen’s comments had certainly presented the Muslim community as a whole in a disturbing light likely to give rise to feelings of rejection and hostility. He had set the French on the one hand against a community whose religious convictions were explicitly mentioned and whose rapid growth was presented as an already latent threat to the dignity and security of the French people. The Court refers to the findings by the French Court, considering that

« les propos du requérant étaient assurément susceptibles de donner une image négative, et même inquiétante, de la « communauté musulmane » dans son ensemble. Elle constate que, dans l'arrêt rendu par la cour d'appel, celle-ci se livre à une analyse du propos du requérant pour en déduire qu'il instillait dans l'esprit du public la conviction que la sécurité des Français passait par le rejet des musulmans et que l'inquiétude et la peur, liées à leur présence croissante en France, cesseraient si leur nombre décroissait et s'ils disparaissaient. Ainsi, comme l'ont relevé les juges d'appel, le requérant prenait-il à témoin, au-delà de ses électeurs et du lectorat auquel il s'adressait, les « gens », identifiés comme le peuple français, de ce que d'ores et déjà, en présence de musulmans, ils devraient se tenir à distance d'eux et faire preuve de soumission à leur égard, alors que lui-même s'était contenté de présenter comme une menace pour eux la forte croissance de cette communauté.
La Cour estime que, de cette manière, le requérant opposait, d'une part, les Français et, d'autre part, une communauté, dont l'appartenance religieuse est expressément mentionnée et dont la forte croissance constituerait une menace, déjà présente, pour la dignité et la sécurité des Français. La Cour estime également que les propos du requérant étaient susceptibles de susciter un sentiment de rejet et d'hostilité envers la communauté visée, compte tenu du sens et la portée qu'il donnait tant à son message qu'à la notion de « gens » qu'il a employée ».

The reasons given by the domestic courts for convicting Mr Le Pen had thus been relevant and sufficient. Nor had the penalty imposed been disproportionate. The Court recognises that a fine of 10.000 euros is an important amount, but reminds that Le Pen under French law had risked a sentence to imprisonment. Therefore the Court did not consider the sanction to be disproportionate. On these grounds the Court found that the interference with Mr Le Pen’s enjoyment of his right to freedom of expression had been “necessary in a democratic society”. The complaint of Mr. Le Pen was accordingly rejected.

The decision of 20 April 2010 in the case of Le Pen v. France is fully in line with the case law of the ECtHR not accepting ‘hate speech’ as part of public or political debate being protected under Article 10 of the Convention. Mr Le Pen is even confronted with a kind of boomerang-effect of the Court’s case law, as in an earlier case the Grand Chamber of the ECtHR had found that defamatory and insulting statements about Mr Le Pen published in a book were finally not protected by Article 10 of the Convention as these statements were to be considered as a form of hate speech. The Grand Chamber indeed in Lindon, Otchakovsky-Laurens and July v. France had regard “to the nature of the remarks made, in particular to the underlying intention to stigmatise the other side, and to the fact that their content is such as to stir up violence and hatred, thus going beyond what is tolerable in political debate, even in respect of a figure who occupies an extremist position in the political spectrum” (Lindon, Otchakovsky-Laurens and July v. France, 22 October 2007, § 57). It is precisely this argument, that hate speech is beyond what is tolerable in political debate, that has now turned against Mr Le Pen.

In the case of Féret v. Belgium the European Court showed an analogue approach (ECtHR, Féret v. Belgium, 16 July 2009). In this judgment the Court reiterated that it was crucial for politicians, when expressing themselves in public, to avoid comments that might foster intolerance. To recommend solutions to immigration-related problems by advocating racial discrimination was likely to cause social tension and undermine trust in democratic institutions. Therefore, according to the ECtHR, in the case of Féret v. Belgium, there had been a compelling social need to protect the rights of the immigrant community, as the Belgian courts had done by convicting Mr Féret for incitement to hatred and discrimination. The Court thus found that there had been no violation of Article 10 ECHR (see also D. Voorhoof, “Politicus die haat zaait is strafbaar”, Mediaforum 2009/10, pp. 372-377).

Both the judgment of 16 July 2009 in the case of Féret v. Belgium and the decision of 20 April 2010 in the case of Le Pen v. France contain undoubtedly important arguments and guidelines for the Amsterdam Criminal Court in the pending case against Geert Wilders, the Netherlands’ M.P. who has been summoned to the Amsterdam Criminal Court on 21 January 2009 for inciting hatred and discrimination and insulting Muslims (Amsterdam Criminal Court, 21 January 2009, LJN: BH0496 and Mediaforum 2009/3, 119, with comment by A. Nieuwenhuis, pp. 131-133. See also R.A. Lawson, “Wild, Wilder, Wildst. Over de ruimte die het EVRM laat voor de vervolging van kwetsende politici”, NJCM-bulletin 2008/4, pp. 469-484).

Dirk Voorhoof, Ghent University and Copenhagen University

Some other relevant decisions and judgments by the ECtHR on hate speech:

- Jersild v. Denmark, 23 September 1994.
- Lehideux and Isorni v. France, 23 September 1998
- Garaudy v. France (no. 65831/01), 24 June 2003 (decision)
- Gündüz v. Turkey, 4 December 2003
- Seurot v. France (no. 57383/00), 18 May 2004 (decision)
- Norwood v. United Kingdom (no. 23131/03), 16 November 2004 (decision)
- Witzsch v. Germany (no. 7485/03), 13 December 2005 (decision)
- Lindon, Otchakovsky-Laurens and July v. France, 22 October 2007(Grand Chamber)
- Soulas a.o. v. France, 10 July 2008
- Balsytè-Lideikiené v. Lithuania, 4 November 2008
- Willem v. France, 16 July 2009
- Féret v. Belgium, 16 July 2009