DEBATE: CAN WE SAY WHAT WE WANT?
By Agnès Callamard
Le Monde Diplomatique, France
April 5 2007
‘Freedom of expression is there to defend diversity of opinion’
The French satirical paper Charlie-Hebdo has just been acquitted
of publicly insulting Muslims by reprinting the notorious Danish
cartoons featuring the Prophet. Influential Islamic groups had sued
it for inciting hatred. Is free speech really in danger worldwide?
The understanding and practices of freedom of expression are being
challenged in the 21st century. Some of the controversies of the
past year or so that have drawn worldwide attention have included
the row over Danish cartoons seen as anti-Muslim, the imprisonment
of a British historian in Austria for Holocaust denial and disputes
over a French law forbidding denial of the Armenian genocide.
These debates are not new: the suppression of competing views and
dissent, and of anything deemed immoral, heretical or offensive, has
dominated social, religious and political history. These have returned
to the fore in response to the stimuli of the communication revolution
and of the events of 9/11. The global reach of most of our messages,
including the culturally and politically specific, has rendered all
expressions and their controls a prize worth fighting for, even to
the death. Does this imply that stronger restrictions on freedom of
expression should be established?
Freedom of expression, including the right to access to information,
is a fundamental human right, central to achieving individual
freedoms and real democracy. It increases the knowledge base and
participation within a society and can also secure external checks
on state accountability.
Yet freedom of expression is not absolute. The extent to which
expression ought to be protected or censored has been the object
of many impassionate debates. Few argue that freedom of expression
is absolute and suffers no limits. But the line between what is
permissible and what is not is always contested. Unlike many others,
this right depends on its context and its definition is mostly left
to the discretion of states.
Under international human rights standards, the right to freedom
of expression may be restricted in order to protect the rights or
reputation of others and national security, public order, or public
health or morals, and provided it is necessary in a democratic society
to do so and it is done by law. This formulation is found in both the
International Covenant on Civil and Political Rights under article 19,
and in the European Convention on Human Rights.
Free to decide This is the basis for restrictions on freedom
of expression, such as laws on defamation, national security or
blasphemy. The formulation is vague enough to leave states free to
decide how they should restrict freedom of expression – to protect
the right of others or national security.
But some degrees of consistency and protection have developed
over time. Most important is a three-part test established by the
European Court. All three parts must be met: any restriction must
have a legitimate aim, be imposed in a democratic framework, and be
necessary in a democratic society. The word "necessary" must be taken
literally; it cannot just be "useful" or "reasonable".
International law does impose one clear positive duty upon states,
in article 20 of the UN Covenant on Civil and Political Rights:
the prohibition on war propaganda and on hate speech. But there is
no agreed definition of what these terms mean in international law.
There are different regional or national approaches to hate speech.
The United States approach protects it unless it actually incites
to violence and will likely give rise to imminent violence. This
is a stringent standard: even speech advocating violence and filled
with racial insults will be protected unless violence is likely to
occur almost immediately. By contrast, France and Germany have strict
restrictions forbidding hate speech, based on article 20.
The cartoons row Blasphemy causes controversy; consider the publication
of Salman Rushdie’s novel, The Satanic Verses, in 1989 and the fatwa
issued against the author by Ayatollah Khomeini; or the murder of
the Dutch filmmaker Theo van Gogh in November 2004.
In September 2005 the Danish newspaper Jyllands-Posten published a
series of cartoons including one showing the prophet Muhammad with
a bomb on his turban. There were immediate protests; in February
2006 they spread, with widespread riots and violence (some lethal)
in the Middle East, a boycott of Danish goods and attacks on Danish
embassies. Media and human rights organisations in the West rushed
to defend what they saw as freedom of expression threatened by
obscurantism. The cartoons were also republished elsewhere.
The incident is not yet over. This February a legal action was
brought by two influential Islamic groups against the French satirical
weekly Charlie-Hebdo for "public insults against a group of people
because they belong to a religion" – it had republished some of the
cartoons. It was acquitted on 22 March.
The context of these protests included the wars in Iraq and
Afghanistan, the perceived western double standards and global lack of
respect for Muslims, the growing intolerance towards Muslims in western
countries, 9/11 and the London and Madrid bombings. The cartoons
row exemplified in many ways the state of the relationship between
the Middle East and the West, playing out in the realm of freedom
of expression. Contest was expressed through public demonstrations
and violence, and also, with far greater force, through internet and
satellite television.
Governments reacted to the row differently. Many in Europe called
on their media to act responsibly, whatever that meant; others
insisted that freedom of expression was an essential liberty. Some
insisted that offence to religion constituted a legitimate concern,
and religious believers ought to be protected against it (1). The row
did not lead to the passing of new blasphemy laws. But there have been
many examples of communities taking matters into their own hands, and
of states seeking to appease mob violence through ad hoc repressive
measures, including censorship and imprisonment.
Journalists and editors in the Muslim world who had reproduced the
cartoons were arrested and their publications banned or suspended. In
Yemen, the licenses of three independent newspapers, the Yemen
Observer, Rai al-A’am and Al-Hurriya, were cancelled and their
editors imprisoned. In Jordan, the editors of Shihan and Al-Mihwar
were arrested for publishing the cartoons, and then freed on bail.
Shams newspaper in Saudi Arabia was suspended after printing some of
the cartoons. In Malaysia, the authorities ordered the suspension of
the Sarawak Tribune.
Other states successfully lobbied for the inclusion in the preamble to
the General Assembly resolution establishing the new UN Human Rights
Council of a paragraph emphasising that "NGOS, religious bodies and
the media have an important role to play in promoting tolerance,
respect for and freedom of religion and belief."
Insulting religion?
The criminalisation of blasphemy is a reality in a majority of
countries (2), although many established democracies rarely use these
legal provisions. In Britain there have been only two prosecutions for
blasphemy since 1923; Norway’s last case was in 1936 and Denmark’s in
1938. Other countries, including Sweden and Spain, have repealed their
blasphemy laws. In the United States, the Supreme Court steadfastly
strikes down any legislation prohibiting blasphemy, fearing that even
well-meaning censors would be tempted to favour one religion over
another: also because it "is not the business of government to suppress
real or imagined attacks upon a particular religious doctrine" (3).
By contrast, the European Court of Human Rights has found blasphemy
laws to be within the parameters of what is "necessary in a
democratic society". It considers state authorities are better able
than an international judge to give an opinion on the necessity of
a restriction intended to protect those whose deepest feelings and
convictions would be seriously offended (4). Many human rights and
freedom of expression organisations, including Article 19, differ
with the European Court’s line of reasoning.
Blasphemy laws tend to be abused worldwide, violating the right to
practice the religion of choice and targeting religious minorities.
There is no evidence that the right to freedom of religion, as
understood internationally, is better protected with blasphemy laws.
Freedom of religion is not about respecting religion but about
respecting people’s right to practice the religion of their choice.
The European Court of Human Rights has ruled that the right to freedom
of religion does not mean that states have to enact laws that protect
believers from offence or insult (5).
International law has stressed that freedom of expression is applicable
to information or ideas that are favourably received, and equally
to those that offend, shock or disturb. In the absence of a specific
intention to promote hatred, censorship measures against newspapers
that printed the cartoons were not legitimate. The cartoons were
offensive to many, but offence and blasphemy should not be threshold
standards for curtailing freedom of expression.
Denying the Holocaust The arrest of the historian who denied the
Holocaust, David Irving, in Austria in November 2005 further confused
the question of protected and criminal speech. Holocaust denial laws
proliferated in Europe from the 1990s on. In November 2006, the French
National Assembly passed, by a vote of 106 to 19, a draft law that
would make it an offence to deny the existence of the 1915 Armenian
genocide; the offence was punishable by five years in prison and a
$56,400 fine. This year Germany announced that it would push for an
EU-wide ban on denying the Holocaust.
Whether these are responses to genuine prospects of incitement to
genocide is debatable (6). They are, rather, political statements
of principle, in the first place against antisemitism. But existing
hate speech regulations should be enough to set boundaries and
common values.
The impact of a total ban on denial of the Holocaust or any other
genocide or historical event is problematic. It goes beyond established
international law; it elevates a historical event to the status of
dogma and prohibits a category of statement regardless of the context
or impact. This is particularly true of the French Armenian genocide
draft law which would muzzle any dissenting or controversial research
and publications, create taboos and reinforce an atmosphere that
discouraged research.
Prosecutions under Holocaust denial laws actually augment the appeal of
revisionist historians, providing them with high-powered platforms and
casting them as dissidents against the established order, thus denying
the democratic state the moral high ground it ought to occupy. Irving’s
conviction in Austria gave him a level of international prominence
he had not previously enjoyed and made him a martyr in the eyes of
his followers (7).
Governments can use such laws to stifle critics. In Rwanda, charges
of "negationism" (meaning denial of the genocide of the Tutsis)
are frequently made against perceived opponents and critics of the
government, including Rwanda’s only independent newspaper.
There is a difficulty over defining precisely what constitutes
Holocaust denial, one of the requirements under international law for
any restriction on freedom of expression. Most such laws go beyond
the key facts of history as recognised by leading courts, such as
the existence of the gas chambers and genocide against the Jews.
The European Court of Human Rights found France in breach of its
obligation to respect freedom of expression when it convicted French
citizens Francois Lehideux and Jacques Isorni, who had contested the
legitimacy of the judgment that had been passed on the second world
war era French leader, Marshal Petain, for his collusion with the
Nazis. The court specifically noted that the statements form "part of
the efforts that every country must make to debate its own history
openly and dispassionately. The court reiterates in that connection
that freedom of expression is applicable not only to ‘information’
or ‘ideas’ that are favourably received or regarded as inoffensive
or as a matter of indifference, but also to those that offend, shock
or disturb" (8).
Where instances of Holocaust or genocide denial do wilfully incite
to racial hatred, general hate speech laws can be used to prosecute
the perpetrators.
Paradox over Turkey On the same day last October that the French
parliament passed its draft bill on the Armenian genocide, the Turkish
author Orhan Pamuk received the Nobel Prize for literature. The award
celebrated his literary work and also honoured him as a staunch
defender of freedom of expression. The two events collided. One
celebrated freedom of expression and brought us closer to open debates
over our past and possible reconciliations. The other locked us into
dogmatic interpretations, further away from appeasement and common
understanding.
Earlier last year Pamuk was put on trial for insulting "Turkishness"
under article 301 of the Turkish penal code, which prohibits a range
of criticisms. Although the charges were eventually dropped, many
writers and journalists in Turkey still face similar charges. Pamuk’s
case and many others rest on statements or publications explicitly or
implicitly recognising the 1915 Armenian genocide, which is a major
taboo under Turkish law and political culture.
This January Hrant Dink, a Turkish journalist of Armenian descent,
was murdered in front of his office, apparently by an extreme
nationalist. He was the editor of the bilingual weekly Agos and an
insightful commentator on Armenian-Turkish relations. In October
2005 he had been convicted under article 301 and received a six-month
suspended sentence. In the month before his murder he had criticised
the French bill on the denial of the Armenian genocide: "We should
not be a pawn for the irrational attitude between the two states. I
am being sued in Turkey, because I said that there was genocide,
which is my own belief. But I will go to France to protest against
this madness and violate the new French law, if I see it necessary,
and I will commit the crime to be prosecuted there" (9).
Glorifying terrorism?
Since 9/11 countries including Australia, Morocco, Algeria, Tunisia,
Thailand, Malaysia, the Philippines, Britain, the US, Turkey, Russia,
Jordan and Egypt have brought in new legislation to toughen their
anti-terror regimes. Despite criticism from NGOs and UN human rights
bodies that anti-terror laws are over-used, more are planned.
A broad definition of terrorism has been adopted in many countries.
The Russian Federation introduced a definition of extremism that
includes criticism of public officials. This is an example of what
has become a frequent feature of new anti-terrorist legislation: it
extends the coverage of counter-terrorism regulations to an ever-wider
range of groups and activities, including forms of protest that ought
to be covered under ordinary public order laws.
The UN Human Rights Committee has criticised the US for extending its
anti-terror laws to include conduct that implies political dissent;
it may be unlawful but cannot be classified as terrorist.
Less democratic regimes, including Uzbekistan, China, Nigeria,
Jordan, Ethiopia and Nepal, have used anti-terror laws to clamp down
on peaceful protesters, political dissidents or the media.
Another worrying aspect of the new anti-terrorist legislation in
force in Britain, Denmark, Spain and France is that it criminalises
the glorification of terrorism, provocation or indirect incitement.
In January 34 countries signed the Council of Europe Convention on
Terrorism which proposes a similar line.
Such offences are so broadly and vaguely worded that they are likely to
invite excessive interference with freedom of association, expression
and the media. They also effectively criminalise incitement that might
lead to extremist activity or the possibility of violence (10). Yet,
it is fundamental to the guarantee of freedom of expression that any
restriction for the purpose of national security, including prevention
of terrorism, is closely linked to the prevention of imminent violence.
This is at the core of the Johannesburg principles, which have
gradually been accepted and cited as the definitive standards for
the protection of freedom of expression in the context of national
security laws (11). The principles restrict legitimate national
security interests to those whose purpose and effect can be defined
as to "protect a country’s existence or its territorial integrity
against the use or threat of force, or its capacity to respond to
the use or threat of force" from an internal or an external threat.
Experience shows that restrictions on freedom of expression rarely
protect us from abuses, extremism or racism. They are usually and
effectively used to muzzle opposition and dissenting voices, silence
minorities and reinforce the dominant political, social and moral
discourse and ideology. Freedom of expression is to be celebrated. It
is not about protecting the voices of the powerful or of the consensus:
it is there to protect and defend diversity of interpretations,
opinions and research.
–Boundary_(ID_o7YXtoCTxJ8ohaqe/4rbyg)–
http://mondediplo.com/2007/04/16freedom