Jeroen Temperman
Erasmus University Rotterdam, The Netherlands
A. Introduction
Does the phenomenon of ‘extreme speech about religion’ warrant legal restrictions on free speech so as to protect religious practitioners? This chapter ventures into the timely question where international law draws the limits––if any––to freedom of expression when challenging, verbally ‘attacking’ or insulting a religion, religious believers, or things held sacred by the latter. We will first look at the tenability of ‘blasphemy laws’ under international law. Subsequently we will assess a notion that emerged at the international plane––namely within the political branches of the United Nations––namely ‘defamation of religion’. Finally, the chapter aims at offering a conceptualization of the legal yardstick of ‘advocacy of religious hatred’, more specifically, hateful speech that incites to violence or discrimination.
B. Blasphemy Laws under International Law
While regional human rights courts have, under circumstances, permitted blasphemy laws, international monitoring bodies and independent experts have recently united in condemning such restrictions on freedom of expression. Specifically, the UN Human Rights Committee, overseeing State Parties’ compliance with the UN International Covenant on Civil and Political Rights (ICCPR), stipulated in 2011 that ‘[p]rohibitions of displays of lack of respect for a religion or other belief system, including blasphemy laws, are incompatible with the Covenant…’. In the same General Comment the Committee expresses its concern that existing blasphemy or religious insult regulations typically discriminate between religions in that insults to some but not all religions tend to be covered by those laws.
The UN Special Rapporteur on freedom of religion or belief, moreover, has called national blasphemy laws ‘counter-productive’. In a recent report the Special Rapporteur reiterated this by underscoring that ‘according to his experiences, blasphemy laws typically have intimidating effects on members of religious minorities as well as on critics or dissenters.’ Therefore, he called on all parties to the ICCPR to repeal blasphemy laws.
Similarly, the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has recently issued a report expressing his concern about ‘anti-blasphemy laws, which are inherently vague and leave the entire concept open to abuse.’ He added that ‘international human rights law protects individuals and not abstract concepts such as religion, belief systems or institutions … Moreover, the right to freedom of religion or belief, as enshrined in relevant international legal standards, does not include the right to have a religion or belief that is free from criticism or ridicule. Indeed, the right to freedom of expression includes the right to scrutinize, debate openly, make statements that offend, shock and disturb, and criticize belief systems, opinions and institutions, including religious ones, provided that they do not advocate hatred that incites hostility, discrimination or violence. The Special Rapporteur thus reiterates his call to all States to repeal anti-blasphemy laws and to initiate legislative and other reforms that protect the rights of individuals in accordance with international human rights standards.’
Furthermore, the recently adopted Rabat Plan of Action, a world-wide endeavour by leading human rights experts, organized by the UN OHCHR, also indicates that anti-blasphemy legislation does not qualify as acceptable limits on the right to freedom of expression. Specifically, the Rabat Plan states on the issue of blasphemy laws that such forms of legislation are:
counter-productive, since they may result in the de facto censure of all inter-religious/belief and intra-religious/belief dialogue, debate, and also criticism, most of which could be constructive, healthy and needed. In addition, many of these blasphemy laws afford different levels of protection to different religions and have often proved to be applied in a discriminatory manner. There are numerous examples of persecution of religious minorities or dissenters, but also of atheists and non-theists, as a result of legislation on religious offences or overzealous application of various laws that use a neutral language. Moreover, the right to freedom of religion or belief, as enshrined in relevant international legal standards, does not include the right to have a religion or a belief that is free from criticism or ridicule.
Accordingly, the Rabat plan of Action lists among its recommendations that ‘States that have blasphemy laws should repeal these as such laws have a stifling impact on the enjoyment of freedom of religion or belief and healthy dialogue and debate about religion.’
In sum, as far as the UN treaty-bodies and independent experts are concerned there is no place for blasphemy bans under international law. In the face of that development is the fact that many states in the world at some point in time had, and in many parts of the world states still have, blasphemy as a criminal offence on the statutes. Pew Forum has counted 32 states, i.e. 16% out of a total of 198 countries studied, with anti-blasphemy laws. Laws that penalize blasphemy are particularly common in the Middle East, Asia and North Africa. They are virtually non-existent in the Americas; in the United States specifically prosecutions over blasphemy are bound to be unconstitutional. In Sub-Saharan Africa only 2 states can be found with blasphemy laws (Nigeria and Somalia). Europe is sending out confusing signals, making it harder to discern clear trends. That is, if one compares contemporary Europe with Europe from pre-modern times, blasphemy laws have certainly fallen from grace. Still, no less than 8 countries, i.e. 18% (which in fact equates with the Asia-Pacific region), maintain their blasphemy laws till today. In many if not all European countries the tenability of such laws has been challenged, yet confusingly, these debates lead to rather different legislative, prosecutorial and judicial approaches. In some states with blasphemy laws these laws have been dormant for decades (e.g. some of the Scandinavian states), while in other states inhabitants are truly subject to the penalties of those laws (e.g. Greece). Ireland in fact recently updated and upgraded its blasphemy law, contrary to what domestic law commissions had advised (the latter had recommended annulment of this law).
C. ‘Defamation of Religion’: The Rise and Demise of a Non-Legal Concept
Accordingly, while some states op until today maintain their blasphemy laws, international law, as interpreted by UN treaty-monitoring bodies and independent experts, is moving in one clear direction, that is to outlaw any such domestic anti-blasphemy law or other such municipal regulation that aims at punishing insulting religion. For a while, roughly during the 1990s and the 2000s, a number of states pushed, at the level of the UN, for recognition of anti-blasphemy regulation. In fact, these states wished to ‘internationalize’ the notion, enshrined in their domestic laws, that insulting a religion should be countered by firm legislation by tabling the idea that ‘defamation of religion’ ought to be combatted through international (i.e. UN-instigated) and national efforts. These efforts would, then, need to include criminal legislation, in addition to other measures aimed at combatting such defamation.
This agenda was advanced through UN Resolutions adopted by the political bodies of the United Nations (the former Commission on Human Rights and subsequently by the Human Rights Council, as well as by the UN General Assembly). These ‘Combating Defamation of Religion’ Resolutions were, typically, tabled by the OIC (Organisation of Islamic Cooperation, formerly known as the Organisation of the Islamic Conference). While these Resolutions were initially passed unanimously, they triggered ever increasing criticism, notably from ‘Western’ states, as well as from NGOs and in the human rights literature. The concerns expressed were that these Resolutions undermined freedom of expression excessively and unnecessarily. Also, these Resolutions aimed at protecting ‘religion(s)’ as such, while international human rights law is concerned with protecting individuals and their rights to religious freedom and freedom of expression. Finally, it was felt that freedom of religion in actual fact includes a right to be critical of other religions, something that may very well be perceived as ‘defamation’ in the eyes of other religious practitioners, but something that nevertheless must be protected not combated lest the right to freedom of religion or belief will be rendered meaningless.
It is in that particular light that one must read the extensive concerns voiced by the UN Special Rapporteur on freedom of religion or belief. While one might think, on its face, that this Rapporteur would welcome anti-defamation sentiments, ‘defamation of religion’ is an unworkable and in fact detrimental concept from the perspective of freedom of religion:
the right to freedom of religion or belief, as enshrined in relevant international legal standards, does not include the right to have a religion or belief that is free from criticism or ridicule. Moreover, the internal obligations that may exist within a religious community according to the faith of their members (for example, prohibitions on representing religious figures) do not of themselves constitute binding obligations of general application and are therefore not applicable to persons who are not members of the particular religious group or community, unless their content corresponds to rights that are protected by human rights law.
The right to freedom of expression can legitimately be restricted for advocacy that incites to acts of violence or discrimination against individuals on the basis of their religion. Defamation of religions may offend people and hurt their religious feelings but it does not necessarily or at least directly result in a violation of their rights, including their right to freedom of religion. Freedom of religion primarily confers a right to act in accordance with one’s religion but does not bestow a right for believers to have their religion itself protected from all adverse comment.
The right to freedom of religion or belief protects primarily the individual and, to some extent, the collective rights of the community concerned but it does not protect religions or beliefs per se. While the exercise of freedom of expression could in concrete cases potentially affect the right to freedom of religion of certain identified individuals, it is conceptually inaccurate to present this phenomenon in abstracto as a conflict between the right to freedom of religion or belief and the right to freedom of opinion or expression.
Therefore, the question as to whether criticism, derogatory statements, insults or ridicule of one religion may actually negatively affect an individual’s right to freedom of religion or belief can only be determined objectively and, in particular, by examining whether the different aspects of the manifestation of one’s right to freedom of religion are accordingly negatively affected.
Due to the widespread criticism triggered by the ‘defamation of religion’ concept, a new Resolution was passed by the Human Rights Council, which aimed to do justice to the concerns voiced. Since 2011, this revamped Resolution is entitled ‘Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief’.
This Human Rights Council Resolution (typically referred to as ‘16/18’, as that was the first) accords better with standards of international human rights law, since it takes freedom of expression seriously, does not aim at protection of religion per se, and condemns, in line with existing international standards, ‘incitement’ (see further section IV below) rather than plain defamation. Independent experts, scholars and human rights NGOs are currently conceptualizing the terms of this new Resolution, indicating how this new focus on combating intolerance and incitement in practice could and should serve to promote existing international human rights standards. There remains, at the same time, real anxiety that future political Resolutions, or misinterpretation of the existing ones, could serve as justifications for national practices that unduly stifle speech critical of majority religions. Therefore, it is crucial to not let the terms of ‘16/18’ degenerate into a renewed ‘combating defamation of religion’ discourse.
D. Advocacy of Religious Hatred Constituting Incitement in International Law
Throughout the controversy surrounding ‘defamation of religion’, the opponents of this concept suggested that under international law there already exist perfectly fine standards to deal with ‘extreme speech’ concerning religion. Thus, they argued, rather than introducing new limits to free speech – which are moreover overly sweeping and susceptible to abuse – we should concentrate on conceptualizing those existing standards so as to make them applicable to contemporary questions of extreme speech in the pluralist state.
Recently, numerous such conceptualizations have been proposed. To name but some (yet, arguably, the most important): the previously mentioned Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence; free speech NGO ARTICLE 19’s 2012 policy brief on incitement; the UN Human Rights Committee’s General Comment No. 34 on freedom of expression (dedicating its closing paragraphs to incitement); the Committee on the Elimination of Racial Discrimination’ General Recommendation No. 35 on combating racist hate speech; the UN Special Rapporteur on freedom of religion or belief’s 2013 thematic report on manifestations of collective religious hatred; and Special Rapporteur on freedom of expression’s 2012 report on hate speech and incitement. While the Rabat Plan is heavily influenced by ARTICLE 19’s conceptual work on incitement, most of the other reports, in turn, expressly reference and endorse the principles and benchmarks set out in the Rabat Plan.
All in all, this means that a number of fairly new ways of looking at ‘incitement’, a norm firmly enshrined in international law (both in ICERD as well as in the ICCPR), are gaining quite a bit of traction at the international and national plane. Most importantly, the offence of ‘incitement’, unlike other forms of ‘extreme speech’, is in its very nature a triangular act; and in order to establish or proof ‘incitement’, contextual factors must always be looked into in addition to the content of the impugned speech act per se.
Let us commence with the former point – incitement as a triangular offense. Article 20, paragraph 2, of the ICCPR provides that ‘any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law’. Accordingly, what is to be prohibited by state parties is not hateful propaganda as such. Article 20(2) ICCPR does not aim at banning all forms of ‘hate speech’. Only those hateful speech acts that ‘constitute incitement’ to certain adverse acts (discrimination, violence, etc.) are to be prohibited. What this means is that the act of incitement requires three parties: an ‘inciter’, an audience, and a target group. The inciter is to propagate his or her hateful messages to an audience, which in turn could be more or less likely to act upon the ‘incitement’, that is, to discriminate or attack the group targeted by the speech (e.g. a religious minority).
Accordingly, ‘incitement’ is concerned with various relations: those between the inciter and its audience (is the former trying to incite the latter to certain adverse acts?); those between the inciter and its target group (is the former saying hateful things about the latter, e.g. dehumanizing them, using stereotypes, or otherwise undermining their humanity and equality?); and, importantly, those between the audience and the target group (how likely is it that the former, upon having listened to the hateful speech act, will carry out harmful acts vis-à-vis the latter, be it in the form of discrimination or violence?).
This triangular relationship makes ‘incitement’ different from most other acts of religious insult, blasphemy or ‘defamation’. True, a blasphemer may hope that others share his insulting views, but he or she is not actively mobilizing an audience to carry out hostile acts. Thus, blasphemy and other acts of ‘religious defamation’ typically do not engage the triangle of incitement that has just been drawn. Most defamation/blasphemy laws are indeed premised on two actors: the blasphemer vis-à-vis the target group that is likely to take offence. One of the most recent blasphemy laws, that of Ireland, makes this explicit: ‘a person publishes or utters blasphemous matter if (a) he or she publishes or utters matter that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion, and (b) he or she intends, by the publication or utterance of the matter concerned, to cause such outrage.’ Accordingly, defamation laws are typically enforced irrespective of a legal threshold question as to whether or not there is a real risk that a third party (an audience) will adversely – violently, discriminatorily – act against the target group. These laws are concerned with the feelings and sensitivities of religious people, not with contingent harm being done by a third party. The original rationale behind adopting blasphemy and religious defamation laws, of course, was precisely that: fostering respect for the feelings of the target group.
Blasphemy laws, furthermore, prohibit certain content per se, with little to no consideration for context factors. The offence of ‘incitement’, on the other hand, is strongly dependent on contextual factors. Again, international human rights law urges states to prohibit by law advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. That formulation is premised on the notion that there are hateful speech acts that do, and hateful speech act that do not, amount to incitement. The actual content of the impugned speech act is only partly useful in order to make that assessment. The content of the speech act will tell us something about the degree of hatred expressed vis-à-vis a target group. Also, occasionally the intention of the author/speaker may be distilled from the content of the speech or publication: was the person intending to disseminate this hateful message?; did he/she intentionally target a group based on its religious (or other) characteristics?; and did he/she expressly call for harmful acts to be perpetrated against the target group?
What we often-times cannot distil from the speech act alone is how likely it is that an audience will indeed become violent, that is, will actually commit violent acts against the target group, or will actually discriminate the latter as a result of taking notice of the speech act. In order to establish such ‘likelihood’ we need to know more. We need to know the status and role of the speaker. We need to know the position of the target group: how vulnerable is the group negatively spoken of? Also, we need to know how far the speech may reach.
The Rabat Plan lists, in addition to content per se and the intention of the speaker, 4 factors that are crucial in establishing whether incitement is committed or not:
First of all, there is the overall ‘context’, that is, the socio-political and historical context in which the hateful statement is made. The Rabat Plan describes context as follows:
Context is of great importance when assessing whether particular statements are likely to incite to discrimination, hostility or violence against the target group and it may have a bearing directly on both intent and/or causation. Analysis of the context should place the speech act within the social and political context prevalent at the time the speech was made and disseminated.
Accordingly, ‘context’ may shed more light on other relevant factors, like the speaker’s intention. Importantly, a context-assessment has a direct bearing on the question of ‘likelihood’: how likely is it that, following the hateful speech act at stake, harmful acts will be carried out by the audience against the speech’s target group. One pertinent contextual element, in that regard, is the question whether the target group is hitherto fairly well respected or rather, whether it suffers (societal) persecution. Statistics on hate crimes could, for instance, be taken into account in that respect.
Furthermore, the position, role, and status of the speaker differs from case to case. Again, the status of the speaker has a direct bearing on the question of likelihood of harm. In the words of the Rabat Plan, ‘[t]he position or status of the speaker in the society should be considered, specifically the individual’s or organisation’s standing in the context of the audience to whom the speech is directed.’ The case of Ross v. Canada, decided by the UN Human Rights Committee, is illustrative. The applicant, a school teacher, had published a number of anti-Semitic pamphlets and booklets. While these publications were pursued in a private, off-duty capacity, the Committee emphasized that the right to freedom of expression comes with responsibilities and that ‘[t]hese special duties and responsibilities are of particular relevance within the school system, especially with regard to the teaching of young students.’ In the domestic proceedings, too, the position of teachers as role models, and the influence teachers have over impressionable youths, was time and again emphasized. The Committee went even farther by concluding that ‘the influence exerted by school teachers may justify restraints in order to ensure that legitimacy is not given by the school system to the expression of views which are discriminatory.’ A similar judgement can be found among the jurisprudence of the European Court of Human Rights. In Seurot v. France, the Strasbourg Court emphasized that the person responsible for published hateful statements about North-Africans was a school teacher, i.e. a person holding a position of considerable authority vis-à-vis youths. In this case the hateful remarks were published in the school’s bulletin, making a negative impact on the school and its pupils all the more likely.
The Rabat Plan, furthermore, emphasizes the ‘extent of the speech’, describing this context factor in the following terms: ‘This includes elements such as the reach of the speech, its public nature, magnitude and the size of its audience. Further elements are whether the speech is public, what the means of dissemination are, considering whether the speech was disseminated through one single leaflet or through broadcasting in the mainstream media or internet, what was the frequency, the amount and the extent of the communications, whether the audience had the means to act on the incitement, whether the statement (or work of art) was circulated in a restricted environment or widely accessible to the general public.’ The ‘extent’ or ‘reach’ of the speech, and the medium used, directly impacts the question of how likely it is that the target group will face violence or discrimination from the speech act’s audience. Conversely, the actual context, including the ‘extent’ of the speech, could very well be such that risks are minimal. Thus in Klein v. Slovakia, the European Court of Human Rights emphasized a point made by the applicant that the Slovakian Government ought not to exaggerate the potential impact of the impugned defamatory statements about a Catholic Church leader given the medium in which the latter were published as well as given the readership concerned. The Strasbourg Court, more particularly, emphasized the fact that Klein’s article ‘was published in a weekly journal aimed at intellectually-oriented readers’, which was ‘in line with the applicant’s explanation that he had meant the article to be a literary joke’ and that the relevant ‘journal was then published with a circulation of approximately 8,000 copies’. Klein’s verbal attack on the Catholic Church leadership, in sum, could not be interpreted as punishable extreme speech.
The Rabat Plan, finally, lists the question of ‘likelihood’ itself, as the most paramount context factor, stating that ‘[i]ncitement, by definition, is an inchoate crime. The action advocated through incitement speech does not have to be committed for that speech to amount to a crime. Nevertheless, some degree of risk of resulting harm must be identified. It means the courts will have to determine that there was a reasonable probability that the speech would succeed in inciting actual action against the target group, recognising that such causation should be rather direct’. According to the Rabat Plan, the question of likelihood must include a reflection on the ‘imminence’ of harmful acts flowing from a hateful speech act. In other words, it is not enough that harm is ‘likely’ sometime in the future – at the material time, that is, right after a hateful speech has been published or otherwise made public, such harm must be ‘imminent’. A good example of a case in which the Human Rights Committee actively engaged with the likelihood/immanence requirement is, again, the decision in Ross v. Canada. For the Committee it was not enough that Ross had uttered inciteful language (he had called upon ‘true’ Christians to discriminate against Jews and act hostile against them). As part of the Committee’s views on the necessity of Canada’s interference with Ross’s speech (he was ultimately dismissed from his teaching job) it places a lot of emphasis on the actual risks emanating from Ross’s hateful publications. This part of the Committee’s judgement was significantly fostered by the fact that in the domestic proceedings the Canadian judiciary had already established a ‘poisoned school environment’. Hence, a causal link between the impugned speech act and actual, ongoing acts of discrimination (such as the carving of Swastikas in school benches) could be observed. Obviously, it is not always possible to establish such a concrete link. It should be noted that ‘incitement’ is an inchoate crime. Thus, causality does not strictly need to be proven in all cases. A hate speaker’s criminal liability should be assessed on the basis of the speech and the risks it posed to the rights of others at the material time.
In some of the European Court of Human Rights jurisprudence we can also discern such actual risk assessments. For instance, in Erbakan v. Turkey we can discern formulas that are reminiscent of the ‘clear and present danger’ doctrine and the ‘imminent lawless action’ test. This political leader (former chairman of the dissolved Refah Partisi party) had given a speech in which he made distinctions between ‘believers’ and ‘non-believers’ while, Turkey alleged, inciting against the latter. Turkey attempted to provide context-based reasons, such as the precarious situation in the region, why interference was necessary. The Strasbourg Court, however, concludes that it had not been established by Turkey that at the time of instigating the criminal proceedings against Erbakan the offending speech engendered a ‘current risk’ (‘un risque actuel’) and an ‘imminent danger’ (‘un danger imminent’) to society.
E. Conclusion
International law contains standards on extreme speech. These standards are formulated as possible limits on incitement, not on insult, blasphemy or ‘defamation’. International anti-incitement standards are formulated in a qualified manner, implying that the legal threshold to set off those speech bans are extremely high. Also, the way in which these standards are currently being conceptualized suggests that States ought not to issue a priori bans on certain content per se (be it defamation of a certain religious view, or figure, symbol, and so on). That is to say, context-based considerations as to the actual risk emanating from inciteful speech ought to be a paramount part of any judicial approach to the limits of free speech.