The Council of the European Union published its long-awaited Human Rights Guidelines on Freedom of Expression Online and Offline earlier this week. I say “long-awaited” because I’ve been tracking this for more than a year and contributed to a consultation on the guidelines at Index on Censorship, where I reported more broadly on the EU’s digital freedom initiatives.

The new guidelines are designed to help the EU protect and promote freedom of expression and opinion using a range of preventative and reactive measures. Much of the text concerns attacks on journalists, whistleblower protection, media plurality and citizen privacy, but there’s a fair bit in here on opinion and belief too.

The guidelines state from the start that freedom of opinion and expression are essential for the fulfillment of other human rights, including freedom of thought, religion or belief. They make clear that states should not restrict or criminalize religious opinions or prevent people from expressing their religious identities.

Countries that abusively invoke notions of “public morals” or “national values” to protect religions and ideologies are violating and undermining freedom of expression. Worst example of such nonsense? Blasphemy laws:

Laws that criminalise blasphemy restrict expression concerning religious or other beliefs; they are often applied so as to persecute, mistreat or intimidate persons belonging to religious or other minorities and they can have a serious inhibiting effect on freedom of expression and on freedom of religion or belief. The EU recommends for the decriminalisation of such offences and forcefully advocates against the use of the death penalty, physical punishment, or deprivation of liberty as penalties for blasphemy. The EU will continue to work with and support organisations advocating abolition of blasphemy laws.

Ugh. Blasphemy laws are terrible, aren’t they? Good thing they only exist in places like Pakistan and Saudi, right? Right?! Wrong…

Eight EU member states—Denmark, Germany, Greece, Ireland, Italy, Malta, the Netherlands and Poland—still have blasphemy laws on the books. Greece used its blasphemy law earlier this year to jail a man for mocking a monk on Facebook.

What annoys me about these guidelines is that they address external concerns without adequately acknowledging internal hypocrisies. When internal policies contradict external guidelines, who’s going to take the latter seriously?

Less annoying but worth noting is the guidelines’ reference to Article 20.2 of the International Covenant on Civil and Political Rights, which states:

Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

It’s important to remember that Europe is more restrictive than the U.S. when it comes to speech about religion and other sensitive topics. America’s First Amendment was set in stone long before the atrocities of World War II prompted a flurry of international declarations, covenants, conventions, frameworks, charters, treaties and resolutions limiting “hate speech.”

I’m obviously not saying that we should promote hate speech or allow it to go unchecked, but the free speech enthusiast in me isn’t convinced that legislation is the best way to combat hateful sentiments. Restricting speech that advocates religious hatred and incites hostility doesn’t make religious hatred disappear, it just pushes toxic sentiments underground where they can continue to fester and infect future generations beyond the state’s reach.

The EU issued separate guidelines on the promotion and protection of freedom of religion or belief last summer, which I plan to discuss in a separate post.

6 Comments

  1. Call me crazy but free speech involves allowing hate speech to go unchecked. The 1st Amendment has been a pretty good benchmark as to the best way to regulate speech. Allow everything unless you can cough up a legitimate and overwhelming interest to the contrary.

    The longstanding Continental European notion of criminalizing defamation (instead of making it a civil tort) has been abused for over a century. [The trial of Emile Zola being one of the most famous]. It never worked.

    Criminalizing expressions of fascism never made it go away. If anything their ideas are far more adopted into the mainstream in modern Europe than they ever were here. In the US, Neo-Nazis and the KKK could display their junk and get a permit and march openly and nobody takes them seriously. In Europe their kind are viable political candidates.

    As long as it is neither personally defamatory as to be libel or slander in a legal sense nor an incitement to immediate violence, hate speech is as worthy of protection as every other form of speech. The best way to counter hate speech is with more speech. More views being expressed to the contrary. Keeping communication as open as practicable. Censorship in this instance just makes martyrs of morons.

  2. Brian Pellot

    Brian Pellot

    Post author

    I agree with many of your points, Larry. By saying “we shouldn’t allow hate speech to go unchecked” I’m not suggesting legal intervention – I’m suggesting social intervention i.e. more speech.

  3. Ronald Sevenster

    It is a mystery to me how the quoted art. 20.2 on the International Covenant on Civil and Political Rights:: “Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law” should be interpreted. As it is formulated it doesn’t sound like protecting religion. It sounds like being biased against religion, and promoting the ideology of secularism. For example, is it still permissible, under this article, for a political party to strongly advocate biblical moral principles, or to condemn the gay culture as a perversion? Or is this incitement to discrimination?

    • So you are saying religion and discrimination are synonymous. Just wondering there.

      Frankly these kinds of laws will probably be either ignored or full of loopholes when it comes to application to European political speech.

      Racist, xenophobic, sectarian rhetoric is given as a matter of course with right wing parties in most European countries. Especially those parties/politicians on an anti-immigrant stance (ie Le Pen, the late Jorg Haider…)

    • The Great God Pan

      The quoted article speaks of incitement to discrimination on grounds of nationality, race or religion. It doesn’t say anything about inciting discrimination based on sexual orientation, so you’d be safe (at least under that article) to call for gays to be jailed or whatever it is you’re into.

      “Advocacy of religious hatred” means hatred OF a religion, not hatred BY a religion. The article is definitely designed to protect religion..

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