ECHR judgment on free speech issues

[Xenia]

"The 2011 conviction of an Austrian woman over statements suggesting the Prophet Muhammad had paedophilic tendencies did not contravene the right to free speech, the European Court of Human Rights ruled today. [ see hudoc.echr.coe.int/eng-press#{%22itemid%22:[%22003-6234980-8105265%22]} ]

In E.S. v Austria, seven judges of the Strasbourg court ruled unanimously that Austrian courts had carefully balanced the right to freedom of expression with the right to have religious feelings protected when they fined a woman identified as Mrs S. for statements made in seminars entitled ‘Basic information on Islam’. The courts had the legitimate aim of preserving religious peace, the judgment states.

Mrs S was appealing a Vienna Court of Appeal decision to uphold a conviction for disparaging religious doctrine. The domestic courts had found that statements about the Prophet's marriage to a six-year-old girl implied that Muhammad had paedophilic tendencies. She was fined €480 and ordered to pay costs.

Mrs S argued that the domestic courts had failed to address the substance of the statements in the light of her article 10 right to freedom of expression.

In its judgment published today the court noted that people who choose to exercise the freedom to manifest their religion under article 9 of the convention must tolerate the denial by others of their religious beliefs. However it found that the Austrian courts had comprehensively explained why they considered that the statements had been capable of arousing 'justified indignation'. They had carefully balanced the applicant’s right to freedom of expression with the rights of others to have their religious feelings protected.

Mrs S had 'failed to neutrally inform her audience of the historical background, which consequently did not allow for a serious debate on the issue'.

It found that even in a lively discussion it was not compatible with article 10 'to pack incriminating statements into the wrapping of an otherwise acceptable expression of opinion', Overall, there had been no violation of article 10. "

Requiring a 'serious debate' seems to be a bit of a steep barrier to free speech.

So the ECHR is now enforcing blasphemy laws and free speech stating facts is now banned? WTF! Time we left the ECHR.

It is certainly an interesting case.
I don't think we would leave the ECHR as it is not even a European Union organisation but this balance between free speech and insulting religions or insulting atheists etc is a hard line to draw.

Also in the context of a lot of people's posts eg on twitter there is not really much space to put the context. In fact as many of us know in some places getting engaged to a young girl without any sexual relations until she hit puberty in the past was a way of protecting her from sexual predators.

So the ECHR is now enforcing blasphemy laws and free speech stating facts is now banned

Wrong on both counts.

The judgement of both the Austrian courts and the ECHR was clear that Mrs S made statements that were partly based on untrue "facts". She also made derogatory value judgements that went beyond permissible limits (to put it another way, she engaged in hate speech). The comments were not merely provocative, they were an abusive attack.

The courts have to balance Mrs S's article 10 rights (freedom of speech) with the article 9 rights of others (freedom of religion). In this case Mrs S clearly overstepped the mark.

To add to my comment above, the full judgement says, "The Court reiterates that a religious group must tolerate the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith, as long as the statements at issue do not incite hatred or religious intolerance".

"The comments were not merely provocative, they were an abusive attack."

That's not really a concept that has hitherto been used in criticism of religion though. A lot of atheistic criticism is going for straight out 'this is sick and wrong' without attempting context. It's attempting to make the religion look The idea that criticism of religion should have some sort of moderation is most certainly a return to a form of blasphemy law.

No, it is not. Blasphemy law stops you insulting or showing contempt or lack of reverence to a deity. The law (which has not changed as a result of this ruling) allows you to do that provided you don't incite hatred or religious intolerance. It is perfectly possible to criticise a religion or even insult a deity without inciting hatred or religious intolerance.

That's obviously not the case, as we have gone beyond criminalising say 'Catholic priests are mostly paedophiles' (a denigration of a group of living people) to 'this dead Islamic prophet is a paedophile'.

The slur of Muhammad as a paedophile is not one that is necessarily intended to incite religious or racial hatred, but rather to say that Muhammad is not a worthy subject of veneration. The goal here is outraging the sensibilities of Muslims, and on this respect there is absolutely no difference between this and many of the blasphemy cases of the 70s and 80s.

One difference presented in the judgment is that the government sees a public safety concern in outraging the sensibilities of Muslims, and has a legitimate interest in avoiding violent protests, but this is again not religious hatred either.

I know a Christian man in prison in Indonesia for calling Muhammad a paedophile, it's my impression not that he hates Muslims but rather that he sees their religion as ridiculous and not worthy of worship.

Ridiculing and degrading a religion is standard atheist or anti-religious rhetoric.

Based on your synopsis Xenia, and not knowing about this case before reading it, I'm very pleased to hear the ECHR's judgement .

I'm also relieved to find out that my own feelings about free speech rights and the right to not suffer abuse would seem to be in line with this ruling. Phew! Always good to know.

I found the following statement, "It found that even in a lively discussion it was not compatible with article 10 'to pack incriminating statements into the wrapping of an otherwise acceptable expression of opinion'" to be particularly interesting, as it's something I've been thinking for some time now and wondered if in any way it had been explored in such context.

No doubt I this is something that will come up for me in future discussions.

“God is the most unpleasant character in all fiction: jealous and proud of it; petty, unjust, unforgiving control-freak, vindictive, bloodthirsty ethnic cleanser, misogynistic, homophobic, racist, infanticidal, genocidal, filicidal, pestilential, megalomaniacal, sadomasochistic, & capriciously malevolent bully.”

Now I would call that description of god as blasphemous & inciting religious intolerance in some people. So are we still allowed to say that in public in front of offended Christians or is it now illegal and a defacto blasphemy law.

Because I dont see how that is any different to being punished for calling out a figure of worship for having sex with young girls.

I can see why they reached the decison they did in this case.

I am not happy with the suggestion that if enough people would get angry that makes statements worse - eg if one group will rise up and get cross but another religion would laugh and take it on the chin should not be the test. That is a bit like English breach of the peace law that I have never liked eithe r- that if you swim naked in a river and the odd dog walker couldn't care less but you happen to do it where 3 cover it all up type people are there then exactly the same action then might be a crime seems very unfair to me. If some people are weak and get in a state about things then we should be helping them keep their cool and have a lie down rather than saying therefore you will be treated in a different way than another group.

For clarity, as some posters don't seem to have understood, on this thread we are discussing Austrian law. The ECHR judgement has no effect in the UK at all.

Mrs S was convicted under Austrian law. Her appeal to the ECHR argued that this conviction was an infringement of her Article 10 rights to freedom of expression. The ECHR ruled against her. That simply means that her conviction under Austrian law stands. It does not mean that other countries have to convict people acting in the same way as Mrs S. She was convicted of disparagement of religious doctrines which is an offence under the Austrian criminal code. It is not an offence in the UK. This decision by the ECHR does not change that.

calling out a figure of worship for having sex with young girls

My understanding of Austrian law is that, if you said in private that Mohammed had sex with young girls (plural), you would be mistaken but would not have committed an offence. He did marry a 6-year old girl (Aisha) and apparently consummated the relationship when she was 9. However, there is no evidence that any of his other wives and concubines were similarly young. Indeed, his first wife was 15 years older than him. However, Mrs S said a lot more than that and did so in a seminar open to all entitled, "Basic Information on Islam" that purported to give unbiased information about the religion.

For clarity, as some posters don't seem to have understood, on this thread we are discussing Austrian law. The ECHR judgement has no effect in the UK at all.

It would be interesting to speculate whether (a) such a case could have been bought under current UK laws.

"For clarity, as some posters don't seem to have understood, on this thread we are discussing Austrian law. The ECHR judgement has no effect in the UK at all.
"

Which poster(s) are you referring to? I believe at least one of the posters here is an actual lawyer.

This was a finding that a particular Austrian law does not contravene the ECHR. It is not true that this has 'no effect' on UK law in that the interpretation of the ECHR in this case would be precedent in future determinations relating to UK individuals seeking to claiming Article 10 rights under the HRA in relation to a hate crime conviction.

"However, Mrs S said a lot more than that and did so in a seminar open to all entitled, "Basic Information on Islam" that purported to give unbiased information about the religion."

Come off it, this was an advertised Freedom Party event, if you went to that you knew EXACTLY what you were getting.

It is not true that this has 'no effect' on UK law in that the interpretation of the ECHR in this case would be precedent in future determinations relating to UK individuals seeking to claiming Article 10 rights under the HRA in relation to a hate crime conviction

If something was a hate crime under UK law before this ruling it is still a hate crime. If something was not a hate crime under UK law before this ruling it is still not a hate crime. The sole effect is that it establishes that a defendant cannot use their article 10 rights to escape a conviction under the UK's hate crime laws but we already knew that.

It does mean that the government could, if it wanted, introduce a law similar to Austria's. But, as of today, it will have no effect whatsoever on UK law or the decisions of the UK courts on hate crime offences.

Come off it, this was an advertised Freedom Party event, if you went to that you knew EXACTLY what you were getting

The Austrian courts disagreed with that argument. Although the seminar was held at the Austrian Freedom Party Education Institute, it was apparently offered free to young voters in a way that implied it was unbiased. I am not in a position to say whether or not they were right but that was the decision of the Austrian courts.

It would be interesting to speculate whether (a) such a case could have been bought under current UK laws

I doubt it would have reached the courts. It certainly would not have resulted in a conviction. We don't have any law against disparaging religious doctrines and her comments did not cross the line into hate speech.

I doubt it would have reached the courts. It certainly would not have resulted in a conviction. We don't have any law against disparaging religious doctrines and her comments did not cross the line into hate speech.

We do have plenty of laws about breach of the peace, behaviour likely to cause, and public order offences though. And that's before you get to the "terrorism" laws ...

To be clear, the prosecution was initially brought under

283 - Hate speech www.jusline.at/gesetz/stgb/paragraf/283

However the judge decided to replace this with

188 - Disparaging Religious Doctrines www.jusline.at/gesetz/stgb/paragraf/188

www.frontpagemag.com/fpm/114056/political-persecution-elisabeth-sabaditsch-wolff-ned-may

She was convicted under Austrian Code 188

The Code 188 is very clearly a blasphemy provision and as such the ECHR has upheld blasphemy law.

It is not clear that a prosecution would fail in the UK given that the Austrian prosecutors felt there was sufficient evidence to charge with religious hatred (283), where Austrian laws are similar to the UK.

The existence of a more suitable Austrian provision does not preclude prosecution in its absence.

The judge actually acquitted Mrs S under 283 but convicted her under 188. It wasn't just that the judge felt 188 was more appropriate. The judge was of the view that there wasn't enough evidence for a conviction under 283. Hence my view that a prosecution in the UK would have failed.