Liberty v Freedom: The European Failure to Protect Free Speech

Alexander Thompson
Alexander Thompson

The European Court of Human Rights has held against Dieudonné M’Bala M’Bala, commonly known as Dieudonné, a French comedian and political activist in his application that France had breached his human rights under Art.10 ECHR. This is the second time in recent weeks that the ECtHR has considered the limits of Art.10 in respect of discussion of acts of genocide. In each of the two cases the court reached a different decision through markedly different reasoning. In Perinçek, the ECtHR ruled that prosecution for the denial of the Armenian genocide by the Swiss government constituted an illegitimate infringement of freedom of speech.

In the present case, one of several that Dieudonné has been involved in over the last ten years, arose from a performance he gave in 2008 at the Zenith in Paris. Towards the end of the performance, he invited on stage the academic and ‘holocaust denier’, Robert Faurisson, awarding Faurisson with his own prix de l’infréquentabilité et de l’insolence (outcast and impertinence – all translations in this post are my own) . The award and the tenor of the performance were mocking of the Holocaust and, it was argued, anti-Semitic. Dieudonne was subsequently fined 10,000 Euros by a Paris court under an amendment to the Loi du 29 juillet 1881 sur la liberté de la presse.

  The Law: France

 France is one of those countries which have laws prohibiting Holocaust denial. The French law (Art.24 bis) is in fact more encompassing than Holocaust denial; it forbids the questioning (contesté) of crimes against humanity. It was under these amendments to the 1881 Law that Dieudonné was fined, as Faurisson similarly has been in the past. Dieudonné was further charged under Art.23 (incitement to racial hatred) and Art.29 (damage to honour or reputation of a person or group).

Several anti-Semitic and anti-racist organisations were joined as co-parties against Dieudonné. The court found that Dieudonné was guilty of ‘délit d’injure’ towards the Jewish people; injure being the French term of art for offensive language. The ECtHR quoted extensively from the French decision which noted, inter alia, that: ‘le droit à l’humour connaît des limites, et spécialement le respect de la dignité de la personne humaine’ (the limits of the right to make jokes are particularly relevant to the dignity of human beings). The court held that Dieudonné, in his deliberately provocative or coarse way (délibérément provocantes ou grossières), had exceeded the bounds of what was acceptable (le prévenu a très largement excédé les limites admises du droit à l’humour).     

  

The Law: ECtHR

 Dieudonné argued that his rights under ECHR Art.7 (no punishment without law) and Art.10 (freedom of speech) had been breached. The French government submitted (para.26) that the application was inadmissible under Art.17 ECHR, which prohibits the ‘abuse of rights’. It was also submitted (para.27) that, pursuant to necessary and legitimate objectives in a democratic society (la loi, orientée vers un but légitime et nécessaire dans une société démocratique), it was right to bring the case against Dieudonné, whose words and actions were not legitimate criticism but mere offensive insult (injure).
Dieudonné’s argument (para.28) was that the political class and the press set the limits of freedom expression so low that they amounted to making ‘Jewish martyrdom’ sacred, (pour la presse et la classe politique, extrêmement réduites puisqu’elles ne peuvent en aucune façon atteindre la sacralisation absolue du martyre juif) and that his recognition of Faurisson was an illustration of this fact.
The court held that the relevant domestic law was a matter for the French state (para.30) and considered only Arts.10 and 17 ECHR. The court held (para.39) that, with the appearance of Faurisson, the evening had ceased to have the character of an entertainment and had become a meeting (la soirée avait perdu son caractère de spectacle de divertissement pour devenir un meeting). In this context, the ‘cover’ of satire and humour had been lost and the evening had, in the view of the court, become a ‘demonstration of anti-Semitism and hatred’ (la Cour voit une démonstration de haine et d’antisémitisme). Because of this the court held that Dieudonné had lost – in part because of Art.17 – (para.42) his Art.10 rights to protection of free speech.   

Freedom of Speech

That both the Paris court and the ECtHR found Dieudonné and his views repugnant is clear. The judgment of the ECtHR almost reads as if it were delivered at arm’s length for fear of contamination. The reasoning of both courts was at times curious and contradictory. The French court interpreted domestic law to suggest that jokes may not be made at the expense of the dignity of others, whereas the ECtHR found that Dieudonné had stopped making jokes by the time of the problematic section and that he was then speaking in deadly earnest. Perhaps the most astonishing sentence in the judgment however was at para.41, where the ECtHR held that:
La Cour considère que le requérant tente de détourner l’article 10 de sa vocation en utilisant son droit à la liberté d’expression à des fins contraires au texte et à l’esprit de la Convention et qui, si elles étaient admises, contribueraient à la destruction des droits et libertés garantis par la Convention.
Here the court appears to suggest that freedom of speech can only be recognised under Art.10 when what is said does not run contrary to either the words or the spirit of the ECHR. To enjoy the protection of the law only when speaking in support of what the law (or the ‘spirit’ of the law) deems appropriate seems hardly like any freedom of speech at all and makes the ECHR akin to a form of holy writ.   

Freedom v Liberty

The two words are not synonymous. Art.10, with its exceptions and limitations grants only liberties (the First Amendment to the US Constitution – ‘Congress shall make no law… abridging the freedom of speech, or of the press – respects unqualified freedom of speech’). The decision of the ECtHR limits this liberty further still.

Dieudonné is in most respects a highly unsympathetic character with repugnant views and is deliberately and provocatively offensive. Yet it cannot be healthy for the law to proscribe speech that is ‘merely’ offensive, an inchoate and highly subjective test. Art.10 is already so replete with exemptions that it already offers poor protection of freedom of speech. Further, and in an environment where senior lawyers can seriously propose using international courts to shut down scientific debate and where hair trigger sensitivity to offence creates an ever-narrowing range of what is ‘acceptable opinion’, the question has to be asked whether the true danger to European societies lies in the rantings of Dieudonné or the further circumscription of freedom of speech. The ECtHR and France have made clear which they regard as the greater danger.

 Alexander Thompson (LL.M Sussex) is a barrister

 

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