The ECHR Is an Enemy of Free Speech
Strasbourg has ruled that a failure to censor offensive speech is a violation of ‘human rights’.
ANDREW TETTENBORN
In a depressingly predictable judgment, the European Court of Human Rights (ECHR) has essentially ruled that free speech stops where ‘hate speech’ begins. Earlier this month, it said that, where private actors engage in so-called hate speech, the state must take steps to suppress that speech – preferably by stiff criminal penalties. If a government tolerates ‘hate’ in the name of freedom, then apparently this can infringe the ‘human rights’ of those on the receiving end.
This ruling was the culmination of a case that began in 2014. That year, the winner of the Eurovision Song Contest was Austrian performer Conchita Wurst, a gay crossdresser. After the show, there was a lively press conference where the Armenian jurors admitted to having given Wurst minimal points because of the revulsion they felt for him. An Armenian newspaper called Iravunk backed the jurors. It attacked the ‘international homosexual lobby’, called Wurst ‘human waste’ and accused the ‘gay lobby’ of being an existential threat to Armenia. All very nasty stuff.
Despite a request to pull the article, similar ones followed. A group of six Armenian gay-rights activists then decided to sue Iravunk, saying it had infringed on their honour and reputation. The Armenian courts declined to intervene. This was, they said, colourful journalism protected by free speech. The activists then went to Strasbourg, where the ECHR was forthright in supporting the complaint. The ECHR decided that the Armenian government, by not penalising Iravunk, had failed to defend the activists’ rights to a private life and to protect them from discrimination. Where the state would ordinarily be obliged to protect free speech, in this instance, according to the ECHR, it was compelled to silence it.
In a depressingly predictable judgment, the European Court of Human Rights (ECHR) has essentially ruled that free speech stops where ‘hate speech’ begins. Earlier this month, it said that, where private actors engage in so-called hate speech, the state must take steps to suppress that speech – preferably by stiff criminal penalties. If a government tolerates ‘hate’ in the name of freedom, then apparently this can infringe the ‘human rights’ of those on the receiving end.
This ruling was the culmination of a case that began in 2014. That year, the winner of the Eurovision Song Contest was Austrian performer Conchita Wurst, a gay crossdresser. After the show, there was a lively press conference where the Armenian jurors admitted to having given Wurst minimal points because of the revulsion they felt for him. An Armenian newspaper called Iravunk backed the jurors. It attacked the ‘international homosexual lobby’, called Wurst ‘human waste’ and accused the ‘gay lobby’ of being an existential threat to Armenia. All very nasty stuff.
Despite a request to pull the article, similar ones followed. A group of six Armenian gay-rights activists then decided to sue Iravunk, saying it had infringed on their honour and reputation. The Armenian courts declined to intervene. This was, they said, colourful journalism protected by free speech. The activists then went to Strasbourg, where the ECHR was forthright in supporting the complaint. The ECHR decided that the Armenian government, by not penalising Iravunk, had failed to defend the activists’ rights to a private life and to protect them from discrimination. Where the state would ordinarily be obliged to protect free speech, in this instance, according to the ECHR, it was compelled to silence it.
What Iravunk printed was, of course, vile and hateful. But crude insults should not be considered a human-rights infringement. The ECHR’s decision does not strengthen human rights in the slightest. On the contrary, it trivialises them.
The ECHR was originally set up to prevent states from carrying out extreme actions that all decent people agree are outside the civilised pale – including torture, death squads, wholesale suppression of anti-government speech, and so on. Yet now it has effectively decreed that governments should protect their citizens from any and all unpleasant speech. That is not only an absurd expectation, but also in itself a clear infringement of a fundamental freedom – namely, freedom of speech. You may disagree with Iravunk’s homophobic screed, but disagreement must be allowed in a democratic society.
Unfortunately, arguments of this sort don’t impress ECHR judges, or the Council of Europe human-rights establishment that lies behind them. For many years, the ECHR has seen its job not so much as acting as guardian against truly shocking abuses of state power, but as gently nudging Europe to a ‘progressive’, soft-authoritarian future.
Indeed, on matters of press freedom it gets worse. As early as 1970, the Parliamentary Assembly of the Council of Europe made clear that it thought the tabloid press needed to be bridled. Journalists’ right to print factual information has been constrained just as the right to privacy has been strengthened. Now we see a similar dynamic in relation to opinion journalism – views that offend Euro-judges are treated as hate speech. Press freedom, the ECHR essentially ruled in the Iravunk case, should not extend much beyond what the court deems to be ‘responsible journalism’. Anything else deserves little, if any, legal protection.
This should worry us, especially as British courts will have to take account of this judgment. It will give unholy encouragement to government ministers who are looking for any excuse to extend curbs on the press. ECHR judges essentially think fruity tabloid opinions are fair game for state censorship. For them, only the comfortable worldview of The Times, the Guardian and Le Monde needs protection from a censorious state. The much more popular Daily Mail or Sun are seen as out of bounds.
The ECHR’s ruling marks yet another step towards the erosion of free speech, now under the Orwellian guise of protecting our human rights.
Andrew Tettenborn is a professor of commercial law and a former Cambridge admissions officer.
This article (The ECHR is an enemy of free speech) was created and published by Spiked and is republished here under “Fair Use” with attribution to the author David Tettenborn
See Related Article Below
World Economic Forum Panel Praises EU Censorship Law
Panel hails EU’s Digital Services Act as essential for tackling online “misinformation.
One of this year’s World Economic Forum (WEF) panels brought together publishers, a French minister, and a UK think tank previously involved in US State Department-funded censorship of Americans, who praised the EU’s controversial Digital Services Act (DSA) while railing against “misinformation.”
French Minister Delegate for Artificial Intelligence and Digital Technology Clara Chappaz spoke about the DSA as a solution to the “problem” presented by free speech on the internet.
Chappaz and another speaker, the CEO of the UK think tank – the Institute for Strategic Dialogue (ISD) – defended the law as not being a censorship tool but “merely” making what is illegal offline also illegal online.
Yet the French official remarked that it requires platforms to introduce measures reducing “the systemic risks” tied to “misinformation.” And this ends up providing a mechanism for censorship of whatever the authorities decide to consider “misinformation.”
Chappaz also spoke about an age verification law that was introduced in France last week, the pretext being preventing minors from accessing adult sites.
ISD CEO Sasha Havlicek went as far as to claim that instead of being a censorship law, EU’s DSA is in fact there to “serve fundamental rights” – and that includes free speech.
Havlicek – whose organization advises Spotify’s Safety Advisory Council on how to deal with “online abuse, hate speech, disinformation, and extremism” and is also a member of YouTube’s Priority Flagger Program – repeated Chappaz’s assertion that the DSA cannot be a censorship tool because it mandates the removal of illegal content only.
Another panelist, Dow Jones & Company publishing group CEO Almar Latour, complained about “disinformation” playing a big role “in the past year” and dismissed those who claim otherwise as spreading “misinformation.”
Latour spoke about the ever-eroding trust in institutions (i.e., entrenched elites), and while acknowledging that this has “deeper roots,” he also repeated the claim heard many time over the last years that “disinformation” and “misinformation” are now present on such a scale that they “exacerbate that trend.”
To Latour’s mind, the fact that legacy (“news”) media and others rapidly losing trust of the public is “a very malignant trend.”
SOURCE: Reclaim the Net
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