the right to offend and the right not to be offended

ISSUE 18June 2006

Interview with EU Commission Vice President Frattini

A free society needs free speech - Ursula Owen

Freedom of speech and hate speech - Amina Baghajati

How the cartoons row is a challenge to free expression - Aidan White

The Right to offend and the right not to beoffended

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ISSUE 18June 2006

Welcome to Equal Voices

The team of the EUMC is pleased to welcome all readers to issue 18 ofthe magazine Equal Voices. Equal Voices content consists of in-deptharticles and features with analysis, new research, surveys, expert in-

put, concepts for successful integration and comments. The opinions expressedin this publication do not necessarily reflect those of the EUMC.

To develop the magazine further we would very much welcome your comments,your suggestions or proposals for issues to be covered in the magazine. You cancontact us on e-mail: [email protected]

All major articles of the Equal Voices will be available in English, French andGerman on the EUMC-website: http://eumc.europa.eu

The EUMC team

Willkommen bei Equal Voices

Das EUMC-Team begrüßt alle Leser und Leserinnen zu dieser ach-zehnten Ausgabe des Magazins Equal Voices. Der Inhalt von EqualVoices besteht aus Artikeln und Dokumentarberichten mit Analysen,neuen Untersuchungen, Erhebungen, Beiträgen von Experten, Kon-

zepten für eine erfolgreiche Integration und Kommentaren. Die in diesem Magazinveröffentlichten Meinungen müssen nicht unbedingt mit denen des EUMC übe-reinstimmen.

Um das Magazin weiter zu entwickeln, nehmen wir gerne Ihre Kommentare, Anre-gungen und Vorschläge zu Fragen entgegen, die in dem Magazin behandelt wer-den sollen. Sie können uns per E-Mail erreichen: [email protected]

Alle wichtigen Artikel aus Equal Voices werden in englischer ,französischer unddeutscher Sprache auf der EUMC-Website veröffentlicht: http://eumc.europa.eu

Das EUMC-Team

Bienvenue dans notre magazine Equal Voices

L’équipe de l’EUMC est heureuse d’accueillir tous les lecteurs d’E-qual Voices dans les pages du dix-huitième numéro de ce magazine.Equal Voices contient des articles et des éléments de fond ainsi quedes analyses, des nouvelles recherches, des enquêtes, des contribu-

tions de spécialistes et des idées pour une intégration réussie et des commen-taires. Les opinions exprimées dans cette publication ne représentent pas néces-sairement celles de l’EUMC.

Pour nous permettre d’améliorer ce magazine, nous serions heureux de recevoirvos commentaires, vos suggestions ou propositions concernant les sujets quevous souhaiteriez y voir traiter. Vous pouvez nous contacter par courrier électronique, à l’adresse: [email protected]

Les principaux articles d’Equal Voices sont publiés en anglais, français et alle-mand sur le site web de l’Observatoire: http://eumc.europa.eu

L’équipe de l’EUMC

Contents

Impressum

Publisher:

European Monitoring Centre on Ra-cism and Xenophobia (EUMC)A-1060 Vienna, Rahlgasse 3Tel.: +43 (1) 580 30 - 0Fax: +43 (1) 580 30 - 93Email: [email protected]: http://eumc.europa.euEditors:

Beate Winkler, Waltraud EtzJohn Kellock, Andreas AccardoArt work: Luc Schwartz

3 Editorial

4 Interview with CommissionVice President Frattini.

7 Freedom of speech and of-fence: why blasphemy lawsare not the appropriate res-ponse, by Agnes Callamard.

13 Journalism and CombatingIntolerance: How the Carto-ons Row is a Challenge toFree Expression and QualityMedia, by Aidan White.

17 A free society needs freespeech, by Ursula Owen.

19 Dangerous diversions: balan-cing rights requires an evenscale, by ENAR.

22 Punishing Religious Defama-tion and Holocaust Denial: IsThere a Double Standard?by Abraham Cooper and Ha-rold Brackman.

26 Freedom of speech and hatespeech: Should there be li-mits to freedom of speech ornot? by Amina Baghajati.

29 Distorted. Inflammatory. Theimage of African people in themedia, by Dieter Schindlauer.

Coverpage photo: European Community, 2006

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ISSUE 18June 2006

The recent months have seen aheated debate on freedom of speechand hate speech, particularly with re-gard to what constitutes racist speechand Islamophobic expression. How-ever, this topic is not only linked tocurrent events such as the so-called“cartoon crisis”, but also to the widerissue of racist and antisemitic dis-course. We therefore have to addresskey questions such as: “What doesfreedom of speech mean, and whereare its limits? What does, in particu-lar, qualify as hate speech – and howcan the limits be drawn between thetwo?”

From an EUMC perspective, pro-tecting people from racist and xeno-phobic discourse is a basic principleof any democratic society. Hatespeech even undermines free expres-sion: hate speech and incitement aredeliberately intended to cause harmto people or groups of people. That iswhy the EUMC strongly supportsthe planned EU Framework Deci-sion on Racism and Xenophobia,which has been proposed by the Eu-ropean Commission. This edition ofthe Equal Voices coincides with aconference on the planned EUFramework Decision on Racism andXenophobia, so this magazine shall

serve as food for thought for the dis-cussions around the EU’s plans inthis field.

The protection from hate speech hasto go hand in hand with the enjoy-ment of the right to freedom of ex-pression – only together, they makedemocracy meaningful. In fact, free-dom of expression is a core value inall the 25 Member states but hasnever been defined as an absoluteright in European societies: All EUMember States maintain certain lim-its to freedom of expression, and theright to freedom of expression, underinternational law, may be restrictedin order to protect, amongst others,the rights of others, or public order.These restrictions are defined andenforced by national law and theCouncil of Europe’s Human RightsConvention. The proposed EUFramework Decision would now askMember States to ensure that publicincitement to hatred or public insultsof individuals or groups for a racistor xenophobic purpose are punish-able.

But beyond legal action againstracist discourse we should addressthe media to look at the opportunitiesto improve its reporting and editorialstandards, and implement its owncodes of conduct. There is much tobe gained by the media throughworking more closely with civil so-ciety and faith-based organisations,for example, to counter deliberate orinadvertent stereotyping and presenta more complete and contextualisedpicture of the various communitiesliving together. There is also the longstanding argument that tomorrow’s

journalists need to be better in-formed about societies that they livein and report on.

This issue of the EUMC’s MagazineEqual Voices brings together differ-ent views on the issue: NGOs, repre-sentatives of different religious com-munities, and media experts explainhow they think hate speech can betackled, and how freedom of speechshould be applied in our societies.The EUMC has collected a diverserange of views and opinions, someof the views are strongly expressed,some of the views may not be toeveryone’s taste or liking, but all theviews require considered debate andare part of the oil that drives the ma-chinery of democracy. The editorshave therefore decided to leave thearticles basically unedited. Wewould therefore like to underline thatthe views expressed in the articlesare those of the respective authorsand do not necessarily reflect theopinion of the EUMC. We hope thatthis Magazine can give a substantialand multifaceted input into the dis-cussions on freedom of speech andits limits. To conclude, from anEUMC point of view, freedom ofspeech must be guaranteed andshould be applied as broadly as pos-sible for a democratic functioning ofour societies, but at the same time itmust be also be ensured that peopleare protected from hate speech andabuse. Freedom of speech is not anend in itself, but a means to a free so-ciety. So is respect for diversity – onthe basis of human rights.

Beate WinklerEUMC Director

Editorial

The EUMC has a new Web-Address

http://eumc.europa.eu

Photo:CopyrightBruckberger

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Interview with Commission Vice Presi-dent Franco Frattini - “We must not allowthe minority of extremists to win”.

Mr. Vice-president, the past monthshave seen a heated debate aboutpublishing or not publishing the“Mohammed cartoons” that ini-tially appeared in a Danish newspa-per in September 2005. What isyour personal conclusion from thisdebate?

The so-called “cartoons debate”has indeed been a heated one. Iwould like to believe that its mosttense phase is now behind us, andthat we can concentrate on the fu-ture.

As President Barroso explainedbefore the European Parliament,the debate has raised severalwider issues. I think that for eachof them, we have drawn some les-sons that will hopefully guide ustowards deepening mutual under-standing and respect.

During the debate, we have recog-nised that the publication of thecartoons aggrieved many Mus-lims all over the world, and that itis important to respect sensitivi-ties. We have also been very firmin our condemnation and rejectionof violent reactions, and we havenoted that they have been the re-action of a minority, disowned bymany Muslims. Equally, we havereaffirmed that our European so-ciety is based on the respect forthe individual person’s life andfreedom, equality of rights be-tween men and women, freedomof speech, and a clear distinctionbetween politics and religion. We

Vice President Franco Frattini, European Commissioner responsiblefor Justice, Freedom and Security

Photo:Copyright:EuropeanCommunity,2006

have said clearly and loudly thatfreedom of expression and free-dom of religion are part of Eu-rope’s values and traditions, andthat they are not negotiable.

My conclusion is that the debatehas reminded us again that allthese principles must be safe-guarded. They should constitute acommonly shared basis for fur-ther dialogue between variouscommunities ensuring they do notdrift apart. Dialogue, including aninterfaith and intercultural dia-logue, based on tolerance, notprejudice, is the way forward. Wemust not allow the minority of ex-tremists to win.

Does the right to free expressionneed limits in order to protect peo-ple in a diverse, multicultural soci-ety from offence and insult on theground of race, ethnic origin, reli-gion or belief?

Let me be clear: even if Europeansocieties become multicultural,freedom of speech, as an essentialpart of Europe’s values and tradi-tions, is simply not negotiable.Governments or other public au-thorities do not prescribe or au-thorise the opinions expressed byindividuals. Conversely, the opin-ions expressed by individuals en-gage these individuals, and onlythem. They do not engage a coun-try, a people, a religion. And weshould not allow others to pretendthat they do. At the same time,freedom of speech cuts bothways: Freedom of speech is thebasis not only of the possibility topublish an opinion, but also tocriticise it. All this is an inherenttrait of our contemporary demo-cratic European societies, and wehave a duty to preserve it.

Coming now to the specific issueof racism, there are limits to free-dom of expression that are de-fined and enforced by the law and

the legal systems of the Councilof Europe and the Member Statesof the European Union. Theselimits are set to protect other fun-damental rights. In particular,Member States’ domestic legisla-tion already prohibits – albeit to amore or less far-reaching extent –

racist and xenophobic behaviourand speech.

Let’s dispel a myth: there is nocontradiction in simultaneouslyprotecting people against racistspeech and making sure that free-dom of expression is and remainsone of the key pillars upon whichour societies, and the EU, arefounded. How to do it preciselymay not be an easy task, and I amthe first one to admit that it re-quires careful consideration andin-depth discussion. But I cannotagree that protecting people fromracist and xenophobic behaviouris incompatible with the basicprinciples of a democratic society.Rather, it should be one of its nat-ural consequences!

Does the European Union need newnormative rules to outlaw incite-ment to racial hatred?

Definitely yes. As a matter of fact,the EU already has legislationdealing with incitement to vio-lence and hatred for a racist orxenophobic purpose, namely the1996 Joint Action on combatingracism and xenophobia. This in-strument gives Members Statesthe possibility to choose betweenpunishing racist and xenophobicbehaviour or derogating to theprinciple of dual criminality.

Nevertheless, as the European Par-liament stressed several times, thisJoint Action needs to be revised.When Europe is striving to be-come a common justice area, weneed EU legislation establishingthat the same racist and xenopho-bic behaviour is punished every-where in the European Union. Weshould give perpetrators a strongsignal that there will be no hiding

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“There is nocontradictionin simultane-ously protect-ing peopleagainst racistspeech andmaking surethat freedomof expressionremains oneof the key pil-lars uponwhich our so-cieties, andthe EU, arefounded.”

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place within the EU for their activ-ities. To date, Member States havenot been able to reach an agree-ment on the proposal, and negotia-tions are unfortunately blocked. Iremain very committed to re-launching discussions on the pro-posed Framework Decision, and Iwill personally take part in theseminar on the criminal aspects ofracism and xenophobia that theCommission is organising togetherwith the Austrian Presidency andthe EUMC in Vienna at the end ofJune 2006.

What would such a law do for peo-ple in the European Union? Couldyou give a practical example of itsbenefits?

The main result would be thatthere will be no place in the Euro-pean Union where perpetratorsare free to behave in a racist andxenophobic manner. This meansthat whoever publicly incites toviolence or hatred for a racist orxenophobic purpose, includedthrough public dissemination ordistribution of tracts, pictures orother material containing expres-sions of racism and xenophobia,would be punished.

Some people argue that the pro-posed Framework Decision wouldunduly restrict freedom of expres-sion. Is the Framework Decisionsacrificing this key Europeanvalue? Would it nor restrict mediafreedom for instance?

I am convinced that the Commis-sion proposal for a FrameworkDecision does not unduly restrictfreedom of expression. As I havejust indicated, I believe that it isperfectly possible to ban racistand xenophobic speech and at the

same time, bearing in mind thatfreedom of expression is a hard-won conquest that should un-doubtedly remain one of the basicdefining traits of European soci-eties, both in law and in practice.The terms of the Commissionproposal are carefully and pre-cisely drafted in order to complywith the principle of proportional-ity, and thus with the freedom ofexpression. For instance, theCommission proposal lays downthat several parameters have to bemet for a given conduct to qualifyas a penal offence under its terms:the act must be intentional and itmust constitute an incitement toviolence or hatred. I frankly donot see how this can be consid-ered as an undue restriction tofreedom of speech.

What else can the media do to curbracist discourse and to promote in-tegration? Must the media do a bet-ter job at reflecting the diversity ofsociety in programming and alsohuman resources?

First, I think that we should notsee the problems of racism andxenophobia in the media in isola-tion from the general problem ofracism in the society. Racist andxenophobic content in the media,both reflects and fuels existingracism in the public. Therefore itis crucial to develop a general pol-icy against racism and xenopho-bia. This is what the Commissionis doing: putting in place a policybased on various instruments.These include legislative actionswhen appropriate, for instance,legislation proscribing racist andxenophobic speech altogether, inthe terms that I just referred to.We also endeavour to mainstreamanti-discrimination principles

across a wide range of EU poli-cies. And last but certainly notleast, the European Union has cre-ated the EUMC, whose work onracism and xenophobia will notbe negatively affected by its trans-formation into a FundamentalRights Agency. Quite the con-trary, the fight against racism,xenophobia, anti-Semitism andIslamophobia will remain at thevery heart of this new Agency.

As regards the media, I personallythink that they have a very impor-tant role to play in promoting bothfreedom of expression and respectfor each individual’s deepest con-victions. I would like to take thisopportunity to clarify again thatthere have never been, nor willthere be, any plans to have somesort of EU regulation on this, noris there any legal basis for doingso. Here again, dialogue betweenall actors concerned (journalists,NGOs fighting racism and pro-moting integration, faith leaders)is the way forward. If the Com-mission is asked to provide somesort of support, I would certainlybe willing to do so.

What are the next steps for theFramework Decision on Racismand Xenophobi?.

The next step will be the holdingof a seminar in Vienna at the endof June, which is organised jointlyby the Austrian Presidency, theCommission and the EUMC,whom I take the opportunity tothank for their support. The Con-ference will examine the crucialissues of this dossier, and I hopethat it will substantially contributeto its un-blocking. I will do mybest so that discussions are there-after taken up in Council.

The views expressed in this articleare those of the author and do notnecessarily reflect the opinion of theEUMC.

Human rights are the foundation ofhuman dignity, freedom, justice andpeace. Behind each right, there ismore often than not a history (andtoo often a present) of oppression. Assuch, they each play a role in the con-struction of our common humanity.But it is their togetherness that makesus all human. The 1948 UniversalDeclaration on Human Rights(UDHR) laid out equal rights for allpeople and three fundamental princi-ples governing human rights: rightsare universal, meaning that rights ap-ply to everyone whoever or whereverthat person is; inalienable, in thatthey precede state authority and arebased on peoples’ humanity; and in-divisible in that all rights are of equalimportance. The UDHR was also in-

tended to provide a common frame-work and understanding across na-tions for preventing the religious,racial, political and sectarian strifewhich plagued humanity throughoutits history, culminating in the SecondWorld War. This idea is forcefullyexpressed in the preamble of theUDHR, cited above, which aspires tothe advent of a world in which hu-man beings shall enjoy freedom ofspeech and belief.

The first few months of 2006 havereminded us that few rights generateas much controversy or make forgreater angst than does freedom ofexpression: the cartoons depictingthe Prophet Mohammed, the prose-cution of David Irving, the contro-versy surrounding the Abu Ghraiband Basra photos: each does presentvery different legal, ethical and his-torical issues. But at the heart of thedebates and attendant violence of the

last months are core questions: Whatare this right’s boundaries? Whatshould be the breaking point? Whereis the threshold whose crossingmeans the space occupied is nolonger that of individual freedomsbut that of criminal behaviour? Is so-called blasphemy such a breakingpoint, as many have argued in thewake of the cartoons’ publication?Or is the boundary crossed only once– as ARTICLE 19 advocates – wordsand pictures can be deemed to incitetheir beholder to hatred?

1. The aspiration

ARTICLE 19 considers freedom ofexpression as a cornerstone right -one that enables other rights to beprotected and exercised. The full en-joyment of the right to freedom ofexpression is central to achievingindividual freedoms and developing

“Whereas disregard and contempt for human rights have resulted in barbarous acts whichhave outraged the conscience of mankind, and the advent of a world in which human be-ings shall enjoy freedom of speech and belief and freedom from fear and want has beenproclaimed as the highest aspiration of the common people, … …Now, therefore, The General Assembly, Proclaims this Universal Declaration of Human Rights as a common standard of achievementfor all peoples and all nations, to the end that every individual and every organ of society,keeping this Declaration constantly in mind, shall strive by teaching and education to promoterespect for these rights and freedoms and by progressive measures, national and interna-tional, to secure their universal and effective recognition and observance, both among thepeoples of Member States themselves and among the peoples of territories under their juris-diction”.

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Freedom of speech and offence: whyblasphemy laws are not the appropriateresponse.By Agnes Callamard

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democracy and plays a critical rolein tackling the underlying causes ofpoverty1. It makes electoral democ-racy meaningful and builds publictrust in administration. Access to in-formation strengthens mechanismsto hold governments accountablefor their promises, obligations andactions. It not only increases theknowledge base and participationwithin a society but can also secureexternal checks on state accounta-bility, and thus prevent corruptionthat thrives on secrecy and closedenvironments. Freedom of expres-sion is also essential to the exerciseof freedom of religion. And con-versely, if people are not free tomanifest their religion, there is noright to freedom of expression.

2. The restrictions

Yet, the right to freedom of expres-sion, under international humanrights law, may be restricted in orderto protect, amongst others, therights of others, and public order, ifit is “necessary in a democratic so-ciety” to do so and it is done by law.This formulation is found in boththe UN Covenant on Civil and Polit-ical Rights and in the EuropeanConvention on Human Rights. Theprotection of religious rights mayfall under the ‘rights of others’ thatmay be protected. As far as freedomof religion is concerned, interna-tional human rights law imposes re-strictions whose wording is alsoquite similar to freedom of expres-

sion language: Freedom to manifestone’s religion or beliefs may be sub-ject only to such limitations as areprescribed by law and are necessaryto protect public safety, order,health, or morals or the fundamen-tal rights and freedoms of others.

The European Court establishes astrict three-part test for the restric-tion of freedom of expression, andfor a restriction to be legitimate, allthree parts of the test must be met:

(i) a restriction must indeed pursuethe legitimate aim that it claimsto pursue;

(ii) the restriction must be imposedin a democratic framework (so,either by parliament or pursuant

The full enjoyment of the right to freedom of expression is central to achieving individual freedoms and developing democracy.


to powers granted by parlia-ment); and

(iii) the restriction must be “neces-sary in a democratic society”.The word “necessary” must betaken quite literally and meansthat a restriction must not bemerely “useful” or “reason-able”.

Exactly what measures States im-pose to restrict freedom of expres-sion is up to them, but the main pa-rameter is that whatever they do hasto be “necessary in a democratic

society”. This really is crucial.

International law does impose, how-ever, one clear positive duty uponstates: as stated in Article 20(2) ofthe UN Covenant on Civil and Polit-ical Rights: “Any advocacy of na-tional, racial or religious hatredthat constitutes incitement to dis-crimination, hostility or violenceshall be prohibited by law.” This isthe only duty that States are under inthe context of restricting freedom ofexpression.

3. Blasphemy laws

Fundamental to the protection of hu-man rights are the principles of theinherent dignity and equality of allhuman beings and the obligation ofall Member States of the United Na-tions to take measures to promote“universal respect for, and obser-vance of, human rights and funda-mental freedoms for all, without dis-tinction as to race, sex, language orreligion.”2 There is no denial thatcertain forms of expression canthreaten the dignity of targeted indi-viduals and create an environment inwhich the enjoyment of equality isnot possible. For ARTICLE 19, sucha risk may be provoked by expres-

sions that are hateful – but not bythose that are blasphemous or offen-sive.

ARTICLE 19 recognises that rea-sonable restrictions on freedom ofexpression may be necessary or le-gitimate to prevent advocacy of ha-tred based on nationality, race, reli-gion that constitutes incitement todiscrimination, hostility or violence.The organisation does not extendsuch legitimate restrictions to offen-sive and blasphemous expressions. States may, but are not required to,introduce legislation on blasphemy.Several established democraciesstill have blasphemy provisions on

the books, although most of theseare rarely, if ever, used. In the

United Kingdom, for example, therehave been only two prosecutions forblasphemy since 1923; Norway sawits last case in 1936 and Denmark in1938. Other countries, includingSweden and Spain, have repealedtheir blasphemy laws. In the UnitedStates, the Supreme Court stead-fastly strikes down any legislationprohibiting blasphemy, on the fearthat even well-meaning censorswould be tempted to favour one reli-gion over another, as well as be-cause it “is not the business of gov-ernment … to suppress real or imag-ined attacks upon a particular reli-gious doctrine …”3 In contrast, theEuropean Court has found blas-phemy laws to be within the param-eters of what is “necessary in a dem-ocratic society”. The main reasonfor such ruling is one that calls intoquestion the normative courage ofthe court, at least as far as this ques-tion is concerned: it considers Stateauthorities to be in a better positionthan the international judge to givean opinion on the “necessity” of a“restriction” intended to protectfrom such material those whosedeepest feelings and convictionswould be seriously offended.

This is where ARTICLE 19 differswith the European Court of HumanRights and indeed with many lawsand practices around the world. Ourposition is grounded on humanrights, and in particular on the indi-visibility of human rights – therecannot be a human rights justifica-tion to the existence and implemen-tation of blasphemy laws.

First, ARTICLE 19 twenty years ex-perience the world over has shownthat the public good is better servedby all-encompassing debate, even inharsh and offensive terms. Fromthis standpoint, there is no evidence

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“Under inter-national hu-man rightslaw, the rightto freedom ofexpressionmay be re-stricted in or-der to protect,amongst oth-ers, the rightsof others, andpublic order.”

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that these laws are indeed “neces-sary”, but plenty demonstrating theopposite. Indeed, lessons from hu-man history should dictate opposi-tion to any attempts to stifle offen-sive or blasphemous speeches anddiscoveries. Freedom of expressionis an “empowerment” right: It al-lows people to demand other rights -the right to health, to food, to aclean environment, to religion, etc.Curtailing this right on the basis ofthe possible offensive or blasphe-mous nature of an expression cre-ates too great a risk to all freedomsfor human rights gains that remainto be appropriately defined and jus-tified. Indeed, as international hu-man rights courts have stressed, theright to freedom of expression is ap-plicable not only to “information”or “ideas” that are favourably re-ceived or regarded as inoffensive oras a matter of indifference, but alsoto those that offend, shock or disturbthe State or any sector of the popu-lation. Such are the demands of plu-ralism, tolerance and broadminded-ness without which there is no‘democratic society’.”4

Second, there is no actual evidencethat the right to freedom of religionas understood under internationalstandard is better served, or pro-tected with or through blasphemylaws. Under international humanrights law, freedom of religion, forinstance, is not about respecting re-ligion but about respecting people’sright to practice the religion of theirchoice. Do offensive statementsthreaten the ability of adherents toreligions to exercise and expresstheir own beliefs? This is highlydoubtful. In a world where certainbeliefs are recognised as more validthan others, what may befall theirreligion? The European Court ofHuman Rights has clearly ruled for

instance that the right to freedom ofreligion does not impose a duty ofStates to enact laws that protect be-lievers from insult or offence(Choudhury v UK)5. In Dubowska& Skup v Poland,6 which concernedthe publication in a newspaper of a

picture of Jesus and Mary with a gasmask over their faces, the authori-ties had opened an investigation andexamined all sorts of evidence, butdecided not to take any further ac-tion. The Commission found thatthe publication in question had notprevented anyone from exercisingtheir freedom of religion, and thatthe decision not to prosecute anyonedid not, in itself, amount to a failureto protect the applicants’ rights.7

Third, we are also very concernedabout abuse of blasphemy laws

throughout the world. In those situa-tions that ARTICLE 19 monitors,blasphemy laws, even when they intheory at least extend to all beliefsand not just to state religion, areused to violate peoples right to free-dom of religion – religious minori-ties are particularly targeted.

Blasphemy laws are the anti-thesisof human rights. At a normativelevel, they establish a hierarchy ofbeliefs that betrays the common un-derstanding and intentions of the in-ternational human rights frame-work. Blasphemy laws are the Ser-vants of Power and the means forreligious persecution; they censor,they create a climate of fears, andthey stifle artistic creativity, aca-demic research, scholarship andfreedom. They may also lead to im-prisonment and death – thus violat-ing the most potent human rights ofall - the right to mental and physicalintegrity, and the right to life.

4. Freedom of expression and

the right to equality

Unlike blasphemy laws, hate speechlaws, at least in theory, seek to meetan essential human rights objective:protecting the right to equality, theright to mental and physical in-tegrity, the right to be free from dis-crimination, and ultimately the rightto life, as hate speeches have too of-ten been associated with ethniccleansing, wars, and genocide.From this standpoint, hate speechregulations may constitute a legiti-mate and potentially necessary re-striction to freedom of expression.Yet, they cannot constitute the soleor indeed central response to preju-dices, racism, and discrimination.The appropriate answer to hatespeech is not just more speech – but

“The appropri-ate answer tohate speechis not justmore speech– but alsopolicies andactions totackle thecauses of in-equality in allits forms andcolours.”

also policies and actions to tacklethe causes of inequality in all itsforms and colours.

(i) Carefully designed hate speech

regulations

ARTICLE 19 insists that any so-called hate speech restriction onfreedom of expression should becarefully designed to promoteequality and protect against discrim-ination and, as with all such restric-tions, should meet the three-part testset out in Article 19 of the ICCPR,according to which an interferencewith freedom of expression is onlylegitimate if:

(a) it is provided by law; (b) it pursues a legitimate aim; and (c) it is “necessary in a democratic

society”.

Specifically, any restriction shouldconform to the following:

� it should be clearly and nar-rowly defined;

� it should be applied by a bodywhich is independent of politi-cal, commercial or other unwar-ranted influences, and in a man-ner which is neither arbitrarynor discriminatory, and which issubject to adequate safeguardsagainst abuse, including theright of access to an independ-ent court or tribunal;

� no one should be penalised forstatements which are true;

� no one should be criminally pe-nalised for the dissemination ofhate speech unless it has beenshown that they did so with theintention of inciting discrimina-tion, hostility or violence;

� the right of journalists to decidehow best to communicate infor-

mation and ideas to the publicshould be respected, particu-larly when they are reporting onracism and intolerance;

� care should therefore be takento apply the least intrusive andrestrictive measures, in recogni-tion of the fact that there arevarious available measuressome of which exert less of achilling effect on freedom ofexpression than others; and

� any imposition of sanctionsshould be in strict conformitywith the principle of propor-tionality, and criminal sanc-tions, in particular imprison-ment, should be applied only asa last resort.8

� Restrictions must be formulatedin a way that makes clear thatits sole purpose is to protect in-dividuals holding specific be-liefs or opinions, whether of areligious nature or not,9 fromhostility, discrimination or vio-lence, rather than to protect be-lief systems, religions, or insti-tutions as such from criticism.The right to freedom of expres-sion implies that it should bepossible to scrutinise, openlydebate, and criticise, evenharshly and unreasonably,10 be-lief systems, opinions, and in-stitutions, including religiousones,11 as long as this does notadvocate hatred which incites tohostility, discrimination or vio-lence against an individual.

(ii) Media self-regulation

ARTICLE 19 believes that inde-pendent media organisations, mediaenterprises and media workers havea moral and social obligation tomake a positive contribution to thefight against racism, discrimination,

xenophobia and intolerance, tocombat intolerance and to ensureopen public debate about matters ofpublic concern. As far as Public Ser-vice Broadcasting is concerned,ARTICLE 19 is of the view thatthey have a legal obligation to playsuch a function.

There are many ways in which me-dia can make a contribution to thefight against intolerance, includingby:

� designing and delivering mediatraining programmes whichpromote a better understandingof issues relating to racism anddiscrimination, and which fos-ter a sense of the moral and so-cial obligations of the media topromote tolerance and knowl-edge of the practical means bywhich this may be done;

� ensuring that effective ethicaland self-regulatory codes ofconduct prohibit the use of prej-udicial or derogatory stereo-types, and unnecessary refer-ences to race, religion and re-lated attributes;

� taking measures to ensure thattheir workforce is diverse andreasonably representative of so-ciety as a whole;

� taking care to report factuallyand in a sensitive manner onacts of racism or discrimina-tion, while at the same time en-suring that they are brought tothe attention of the public;

� ensuring that reporting in rela-tion to specific communitiespromotes a better understandingof difference and at the sametime reflects the perspectives ofthose communities and givesmembers of those communitiesa chance to be heard;

� ensuring that a number of

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voices within communities areheard rather than representingcommunities as a monolithicbloc – communities themselvesmay practice censorship;

� promoting a culture of toleranceand a better understanding ofthe evils of racism and discrim-ination.12

(iii) Equality and anti-discrimina-

tion policies

ARTICLE 19 further believes thatan effective response to vilifyingexpression requires a sustainedcommitment on the part of govern-ments to promote equality of oppor-tunity, to protect and promote lin-guistic, ethnic, cultural and reli-gious rights, and to implement pub-lic education programmes about tol-erance and pluralism. Restrictionson freedom of expression, in the

first place blasphemy laws, consti-tutes a blunt instrument that too of-ten amounts to political expediencyrather than well thought-throughstrategies to tackle discrimination,prevent violence and protect theright to life and the right to equality.

Conclusion

The events of the last months, inparticular with regard to the so-called Danish cartoons, have placedfreedom of expression at the heartof a global controversy and accom-panying violence or threat of vio-lence. What these events particu-larly highlighted is the grave short-coming of leadership at all levels –global, national, community, sec-toral – and its propensity to eitherescalate tensions and highlight divi-sions, or adopt politically expedient

measures. Freedom of expressionand freedom of belief have been thehostages, scapegoat, and victims ofthese developments – together. Theworld has witnessed increased intol-erance to both what is wrongly per-ceived as a Western (secular andanti-Islam) value and to Islam itself.Appropriate and legitimate re-sponses must be grounded on thecommon framework and under-standing of human rights laid downby the UDHR and other interna-tional instruments – it requires tomove away – more than ever – fromany attempts to protect certain setsof rights without due considerationof others and their impact on others.More than ever, the search must beto strike the right balance.

Dr. Agnes Callamard is ExecutiveDirector of Article 19. http://www.article19.org

1 Catherine Pitt, Bridging the Human Rightsand Development discourses: Is the Rightto Freedom of Expression of use to Devel-opment?, dissertation, MSc in the facultyof Economics, LSE, London, 2005.

2 Article 55(c) of the Charter of the UnitedNations. See also Article 55 of the Charter.

3 Joseph Burstyn, Inc v. Wilson, 343 U.S.495, 504-05 (1952).

4 Handyside v. United Kingdom, 7 Decem-ber 1976, Application No. 5493/72 (Euro-pean Court of Human Rights), para 49.

5 The applicant had unsuccessfully urged theprosecution of Salman Rushdie and hispublisher for The Satanic Verses, which heconsidered offensive against Islam.

6 Dubowska & Skup v Poland, 18 April1997, Application No. 33490/96 (Euro-pean Commission of Human Rights).

7 Id., para. 2.8 This list draws on the 2001 Joint State-

ment of the specialised mandates on free-dom of expression.

9 Religion as used here is to be understoodbroadly and does not depend on formalState recognition.

10 The right to freedom of expression in-cludes the right to make statements that‘offend, shock or disturb’. See Handysidev. United Kingdom, 7 December 1976, Ap-plication No. 5493/72, 1 EHRR 737, para.49 (European Court of Human Rights).

11 ARTICLE 19 believes that blasphemy as acriminal offence should be abolished. Tol-erance, understanding, acceptance andrespect for the diversity of faiths and be-liefs cannot be secured by the threat ofcriminal prosecution and punishment. Thisis becoming ever more relevant as our so-cieties become more and more diverse.

12 This list is based on the 2001 Joint State-ment on Racism and Media by the UNSpecial Rapporteur on Freedom of Opin-ion and Expression, the OSCE Represen-tative on Freedom of the Media and theOAS Special Rapporteur on Freedom ofExpression.

The EUMC has a new Web-Address

http://eumc.europa.eu


In a world of increasing anxietywhere problems of religious intoler-ance, terrorism and ethnic conflictfeature strongly on the newsagenda, the role and responsibilityof news media came into sharp fo-cus early this year when the publica-tion of a handful of cartoonssparked street protests, mob vio-lence and the deaths of a number ofpeople.

The global firestorm over the publi-cation of cartoons of the ProphetMohammed revealed a chasm ofmisunderstanding and ignorance inrelations between Muslim and west-ern communities and underlinedwhy journalists need to be moreconscious than ever about the dan-gers of media manipulation by un-scrupulous politicians and racists.

Suddenly, and quite unexpectedly,media standards came underscrutiny as angry Muslims, many ofthem not particularly religious,protested at the perceived casualdisregard of cultural sensibilitiesover the publication of images ofthe Prophet, which, through customrather than doctrine, is traditionallyfrowned upon in Muslim societies.

It confirmed the feeling amongmany that, for all the talk of liberty,pluralism, and human rights, west-

ern media are narrowly-focused andinconsistent in their interpretationof what constitutes freedom of ex-pression. Media were also accusedof displaying shocking ignoranceabout other cultures, even whenthey form substantial minority com-munities within the local popula-tion.

When this controversy explodedacross the globe, migrating fromDenmark to Norway and then tomainstream media in Europe, ittouched off a political storm aboutattachment to democratic values,about relations between media and

government and the role of media inmoderating the so-called “clash ofcivilisations.”

A wake up call for media

Within media and journalism, thecontroversy has served as some-thing of a wake up call, initiating around of debate and analysis among

journalists about how they do theirjob and what they need to do, if any-thing, to improve their performance.

The reaction of many journalists tothis controversy was, at first, defen-sive. Media are used to criticismand wary of where it comes from.They have good reason to be suspi-cious. Journalists know that whenmedia are taken out of the hands ofprofessionals they can become de-structive weapons.

In the 1990s, conflict in the Balkansand genocide in Rwanda providedbrutal reminders that human rightslaw, journalistic codes and interna-tional goodwill count for little whenunscrupulous politicians, exploitingpublic ignorance and insecurity, usecompliant media to encourage vio-lence and hatred.

In the 2000s, a new war in the Mid-dle East, the manufacture of a clashof civilisations between Christianityand Islam, and a resurgence of com-munity conflict in Europe, dramati-cally exposed by violence in the ur-ban centres of France, the UK, theNetherlands and elsewhere, have allstirred centuries-old resentmentsabout foreigners in our midst.

The problem of intolerance is a con-stant threat to good journalismeverywhere. Urban violence inNorth America and Europe, the risein influence of extremist right-wingpolitical parties, the re-emergenceof anti-Semitism, widespread reli-

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Journalism and Combating Intolerance:How the Cartoons Row is a Challenge toFree Expression and Quality Media By Aidan White

“Media areused to criti-cism and waryof where itcomes from.”

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gious intolerance in parts of Africa,Asia and the Middle East, and prej-udice and discrimination against na-tional minorities on the basis of lan-guage and social status, are all partof the global landscape of dailynews reporting.

In this complex news environment,journalists can become casual vic-tims of prejudice and political ma-

nipulation. Too often, ignorance anda lack of appreciation of differentcultures, traditions and beliefs lead

to media stereotypes that reinforceracist attitudes and strengthen theappeal of political extremists. Cer-tainly that’s how many people in theMuslim world saw the row over car-toons of the Prophet Mohammed.

They point to European mediastereotypes of the Arab world thatseem to be greater and more danger-ous than they have been for

decades. They say that media fail todistinguish between fundamental-ism and mainstream Islam and ap-

pear to regard engagement with reli-gious communities as compromis-ing progressive values rather thanan opportunity for dialogue in orderto win people over.

It is indisputable that the emphasison terrorism and fanaticism in theArab world has been made worse bythe war on terrorism launched bythe United States after the Septem-

ber 11 attack on New York andWashington.

Journalist meeting to discuss the media’s role in intercultural dialogue and the fight against racism in Vienna in May 2006

(meeting organised by the Austrian presidency, the EU Commission and the EUMC)

Photo:EUMC,LucSchwartz

It is an obsession, fed by sensation-alist and superficial reporting ofconflict in the Middle East and nur-tured by extremist politicians, and ithas contributed to an increasinglyfearful climate within previouslystable metropolitan communities inEurope.

Today in countries with a history oftolerance in past decades like Bel-gium, France, Austria and theNetherlands, and in the Nordic re-gion, a toxic cocktail of prejudiceand ignorance about Arab culture isleading to a resurgence of extremistpolitics not seen for 50 years.

The cartoons controversy as

a test case

The cartoons controversy providessomething of a case study on thepositive and negative role media canplay in turbulent times. What beganas a legitimate journalistic exercise(dubious judgement, perhaps, butthe original commission of the car-toons was entirely legitimate) gotout of control when it became politi-cised. Some journalists and mediabecame engaged in editorial activitywhich provided nourishment forsome deeply unpleasant politics.

The argument of editorial legiti-macy and relevance for publishingthe cartoons, not for reporting theargument, became more difficult thefurther the story travelled from itspoint of origin. It became for manyin journalism a test case for basicdemocratic values and free expres-sion. If it was, I think that, all in all,journalism generally passed the test.

No story in recent history has beendiscussed in so many newsrooms. Inalmost every daily newspaper, tele-

vision and online news business, notjust in Europe, but around theworld, the discussion raged –whether or not to publish these car-toons. Arguments flowed back andforth about how to cover the story,with or without the cartoons?

There’s no doubt about the majorityverdict. In the end hardly one per

cent of publications in Europe andmany fewer across the world de-cided to publish. On television thenumbers were even less.

The vast majority of journalists con-sidered the issue and decidedagainst publication. These werejudgement calls freely made, in Eu-rope at least. It was a demonstrationthat freedom of expression is notjust about the right to publish, it isequally about the right not to pub-lish, and that journalists can and dobalance carefully the three cardinalprinciples of their trade – to respect

the truth, to be impartial and to min-imise harm.

Regrettably, those who decided topublish in many parts of the Muslimworld suffered most, illustratingwhat we all know about the distanceyet to be travelled by some coun-tries along the road to democracy.

What journalists can do

This controversy raised a number ofserious questions about how mediawork. How do news media defendthemselves from outside pressure?What can journalists do to improveethical standards, particularly whenthey are in the crossfire of socialconflict? What standards do mediaprofessionals need to set to bringbalance and equality into the waymedia work that will, in the process,improve the quality of reporting?

Above all, the row has challengedmedia professional groups – in bothEurope and the Arab world – to es-tablish a dialogue on how best tobalance cultural and religious sensi-tivity and the right to free expres-sion.

To kick-start this process the Inter-national Federation of Journalistsbrought together some leading pro-fessional groups, journalists andothers, including the EuropeanCommission, Unesco and the Coun-cil of Europe, to talk through someof the arguments in Brussels in Feb-ruary.

We emerged, predictably, with nomagical or simple set of solutions,but at least with agreement on a re-jection of violence, a call for dia-logue, a restatement of democraticvalues, and for journalists to be al-

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“Europeanmedia stereo-types of theArab worldseem to begreater andmore danger-ous than theyhave been fordecades.”

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lowed to work freely without inter-ference. A joint declaration wassigned by all professional groupspresent except newspaper publish-ers.

Another professional meeting washeld at the end of March in Oslobringing together journalists and ex-perts from the Arab world, Norwayand Denmark. The conclusionswere much the same – that the car-toons dispute should set editorialalarm bells ringing, that media needto improve their performance andthat journalists need to rebuild con-fidence in the notion that mediaspeak for everyone, not just for thesettled majority.

These initial discussions also revealthat freedom of expression is notsome inflexible, one-size-fits-allconcept. It differs from country tocountry. We all grow up withtaboos, which vary from culture toculture, but when they are appliedwith widespread and common con-sent, they do not compromise prin-ciples set out in Article 19 of theUniversal Declaration of HumanRights which states that everyonehas the right to receive and impartinformation.

How to apply freedom of ex-

pression?

But there is much inconsistency inhow we apply this principle. In Eu-rope many countries still have puni-tive laws on blasphemy and thereare places where you can be prose-cuted for wearing Nazi insignia. Asthe historian David Irving discov-ered in Vienna earlier this year,there are also countries where youcan go to prison for denying theHolocaust. While freedom of ex-

pression fundamentalists have noproblem in confronting all taboos,without fear, mainstream media inthe West do take account of nationalcustoms, traditions and culturalthinking in making their newsjudgements. No wonder some Mus-lims are confused when their com-plaints over the cartoons are dis-missed as an attack on Europeanideals of freedom of expression.

At the same time in the Arab world,where organised and violent demon-strators laid siege to western em-bassies amidst calls for trade boy-cotts and reprisals against Danishand European media, there were noblushes, apparently, over the factthat Arab newspapers have for yearscarried vicious caricatures portray-ing Jews and Israelis in a mannerthat any civilised person would findshocking and unacceptable. How

does this grotesque contradiction sitwith complaints about cultural sen-sitivity?

In reality, there is a mix of ap-proaches that generally work well

together. Differences and distortionsonly come to the surface when is-sues become instruments of politi-cal in-fighting.

Agreeing on media standards

The meetings in Brussels and Oslodealt with all of this in restrained,professional and balanced discus-sion. There is agreement all round,at national and international level,that discrimination within mediashould be wiped out and that jour-nalism should put populist and dan-gerous ideas under proper scrutiny.We need standards for reportingwhich ensure people get the infor-mation they need, without lashingsof bias and prejudice.

But how? As a modest start, themeeting in Oslo called for a newumbrella group within media to beestablished to co-ordinate actions atnational level to bridge the gulf ofmisunderstanding between culturesthat led to the cartoons controversyin the first place. In Brussels the IFJ(International Federation of Jour-nalists) was asked to continue tobring groups together.

The starting point for this workmust be to raise awareness withinmedia about the issues and to pro-mote changes that will strengthenjournalism by putting the focus onethics and quality. Ethical codeswill not solve all the problems of in-tolerance in media, but they helpjournalists to take responsibility andthey encourage journalists to act ac-cording to their conscience.

Regulating ethics is the collectivebusiness of journalists, not princi-pally of the corporations whichcommission and carry their journal-

“Freedom ofexpression isnot just aboutthe right topublish, it isequally aboutthe right notto publish.”

ism, and especially not of govern-ments. Governments have a legiti-mate role in regulating media struc-tures to try to ensure the diversitynecessary for freedom of expressionto flourish, but journalists’ ethicsare a matter of content, and when itcomes to what news media write orbroadcast, governments have norole to play, beyond the applicationof general law. If the cartoons issueachieved nothing else, it unitedjournalists – from both Europe andaround the Muslim world – in theiropposition to new codes and supra-national rules imposed by govern-ments.

The controversy was proof positivethat editorial judgement, exercisedfreely, is what works best. Ethics,therefore, have to be actively sup-ported, and particularly the prohibi-tion of discrimination on the basisof religion, race or nationality,which is one of the most generalfeatures of professional codesagreed at national and internationallevel. But like all the other skills ofjournalism: it takes training, timeand effort to become good at apply-

ing ethical codes which direct think-ing and permit conscious decision-making.

The Oslo meeting went further andadopted a range of objectives forwork at national and internationallevel, in particular to campaign vig-orously to recruit more people fromdifferent ethnic and cultural groupsinto journalism. To be effective,journalism must be inclusive, ac-

countable and a reflection of thewhole community.

Take the example of Norway, whichis one of the world’s leading democ-racies and renowned for its tradi-tions of decency: only a handful ofjournalists from different social,ethnic or cultural backgrounds workin media. Editors and journalistspledged to do something about this.The argument for internal diversityis not about “do-gooder” journal-ism, but aims to improve efficiency,professionalism and performance.

If these new initiatives gain support,they will provide some lasting bene-fits. In this sense the cartoons row isnot all bad news. It has, at least,opened the eyes of many in westernmedia to their own poor perform-ance and it should reinforce the ef-forts of journalists and others tosupport the movement for progres-sive change throughout the MiddleEast.

Aidan White is General Secretary ofthe International Federation ofJournalists http://www.ifj.org

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“To be effec-tive, journal-ism must beinclusive, ac-countable anda reflection ofthe wholecommunity.”

A free society needs free speechUrsula Owen


In today’s climate, it is perhaps im-portant to reiterate why free expres-sion matters: We are living in aworld where people with widely dif-ferent cultural habits and beliefs, re-

ligious or otherwise, are living inclose proximity. Communicationacross continents can be achievedby the touch of a button; news trav-els thousands of miles in minutes.

In this world, where misunderstand-ings happen easily and people areprone to take offence, the power ofwords (and images) is coming under

the closest scrutiny. And the issue ofoffence, of religious and other sensi-tivities has become paramount and ischallenging the right to free expres-sion. Indeed, I would go so far as tosay that this issue is making free ex-pression a fairly unpopular cause.

No one ever said that free expres-sion was uncomplicated. But those

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of us who believe passionately thatfree expression matters, that it is thebasis of all other human rights, feelsome alarm at the tendencies in theworld today. The story of the Danishcartoons, where some 50 peopledied in confrontations at demonstra-tions worldwide; the jailing of theBritish Holocaust denier David Irv-ing in Austria; the violence of sec-tions of the Sikh community inBritain that forced the closure of aplay written by one of their own;these are just three recent examplesof how the issue of offence threat-ens free speech.

These are complex issues with dif-ferent historical, legal and ethicalroots. One of the great defenders offree speech, Ronald Dworkin, hasrecently stated that there are threemain reasons why free expressionmatters. First, we cannot accept col-lective control of the culture. Thismeans, as George Orwell so elo-quently stated, that we must havethe right to tell people what they donot want to hear. Then there is theessential issue of democratic trans-parency, where a free press – thefourth estate, the watchdog – has aduty and responsibility to hold gov-ernment and other powerful groupsaccountable. And last, and perhapsmost difficult, there is democraticfairness; if we want people to acceptdemocratic procedures and laws thatexpress the will of the majority, theneveryone must have not just a votebut a voice, however much we maydislike what they are saying. This ofcourse puts the censoring of ridiculeout of bounds.

So what are the responsibilities ofthe media in all this, and how has itperformed? Is it part of the problemor part of the solution? The answeris a mixed one. As far as free ex-

pression is concerned, the mediadoes not always probe enough, orreveal what has been left unsaid orcampaign for what it believes in.What happened to the play Behzti(Dishonour) was one of the worstblows to free expression in the UKfor years. Gurpreet Kaur Bhatti, ayoung devout Sikh woman, wrote a

play which raised the possibilitythat principles of equality, compas-sion and modesty are sometimesdiscarded in favour of outward ap-

pearance, wealth and quest forpower.

The play was put on in Birming-ham, but had to be taken off becauseof violence from a section of theSikh community. Bricks werethrown in the theatre foyer, and nei-ther the theatre nor the police couldvouch for the audience’s safety. Theplaywright was forced into hiding,needing police protection. TheBritish government made a weakstatement to the effect that the pro-testors also had a right to freespeech – something that no onewould deny. But they did not havethe right to violence, and no one wasprosecuted for it.

A wide range of voices was heard inthe media over this event, in myview a real turning point, a sym-bolic moment which will have givenother groups the idea that violenceis legitimate in trying to silence peo-ple they do not want to hear. Butonly one newspaper published anypart of the play, and then only a verysmall extract.

I saw no interviews with any Sikhswho committed the violence, orwith those who had been consultedover the play, or with the actors.And I believe the event was so im-portant that the media should havecampaigned for this play to be puton, in safety, with police protection.Campaigning is an honorable tradi-tion for the media, and this caseneeded it.

As for the media and the Danishcartoons, a lot has already been saidabout this and I do not plan to repeatit. Certainly both sides had theirown agenda. Some argued that re-peating the publication four monthsafter the cartoons first appeared was

“If we wantpeople to ac-cept demo-cratic proce-dures andlaws that ex-press the willof the major-ity, theneveryonemust have notjust a vote buta voice, how-ever much wemay dislikewhat they aresaying.”

provocative, that the media has a re-sponsibility to consider the likelyresults of publication.

Some argued that though there mustbe a right to publish it is not neces-sarily always the right thing to do(this was the position of the Britishmedia). Others felt that free expres-sion must be asserted against threatsof violence, regardless of results. Itis also generally accepted that thewave of rioting four months afterthe cartoons’ publication was politi-cally orchestrated.

In the media, many voices were ab-sent. The editors who chose to pub-lish cartoons were not interviewedat any length. Only the Danish me-dia, of course, and the French daily

Le Monde seriously interviewed thecartoonists, some of whom hadsome interesting things to say (‘I al-ways knew this was a provocativeact by our newspaper’ said one).

Le Monde also quoted the Arabpress based in London, papers suchas al-Quds al-Arabi, Asharq al-Awsat, some of them Saudi backed,which all repudiated the violentthreats accompanying some of theprotests. Otherwise there were fewvoices from moderate Muslims inthe media at all, who when theycould speak, on the one hand repu-diated the fuss but also expressedtheir sense of not being heard.

Democracy is a messy business, butit’s what we must fight for, and for

the freedom of speech that goeswith it.

Hans Magnus Enzensburger oncesaid “with democracy all the dirtcomes out”. The fact is that it is anoccupational hazard of living in ademocracy that one might be of-fended. It is not a democracy if, inpassing laws, a government has pre-vented anyone from stating his con-victions about what those lawsshould be. Democracy is a messybusiness, but it is what we must fightfor, and for the freedom of speechthat goes with it.

Ursula Owen is the editor-in-chiefof Index on Censorship.http://www.indexonline.org

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Dangerous diversions:balancing rights requires an even scaleBy European Network against Racism (ENAR)


Freedom of speech is a crucial ele-ment of European democracies,however there is a danger that re-cently it has been used to distract at-tention from the imperative of fight-ing racism and promoting integra-tion and diversity. While the right tofreedom of speech must be con-stantly debated, it faces no immedi-ate threat of being dramatically un-dermined, however everyday mil-lions of ethnic and religious minori-ties across Europe face the conse-quences of racial hatred and incite-ment.

Hate speech or incitement directedagainst members of ethnic minority

communities is one of the mostovert and abusive forms of racism inEurope today. Arguing that thismanifestation is somehow linked to

rational debate fundamentally failsto recognise the nature of 21st cen-tury racism.

ENAR welcomes the contributionthat this edition of Equal Voices canmake to an important debate but wewould need many more volumes tophilosophise about the implicationsof freedom of speech in contempo-rary European societies. Howeverinteresting this debate may be, itdraws attention away from the realchallenges facing European soci-eties, not least the racism and hateexperienced by religious and ethnicminority communities every day. Inthe words of Roma activist ValeriuNicolae: “Whether the majority ofthe population denies, ignores, ac-

“You (Gypsies) are thescum of all societies.Damned be the peoplewho brought you to Eu-rope and those who didn’tkill you in time”, corre-spondence received byValeriu Nicolae (Euro-pean Roma InformationOffice), September 2005.”

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cepts or supports them, such materi-als have the power to incite, and…to justify violence” (Index on Cen-sorship, December 2005, p. 9).

Freedom of speech has never beendefined as an absolute right and inEuropean societies it has often beenrestricted for much lesser reasonsthan hate speech. The logic of free-dom of speech is based on everyonehaving a ‘voice’, but when it comesto hate speech the voice of vulnera-ble communities is silenced. Hatespeech undermines free expression:not only are ethnic minority com-munities often in vulnerable situa-tions and unable to ‘respond’, buthate speech and incitement is delib-erately intended to cause harm tothese communities. Hate speechdoes not occur in a vacuum, it is ei-

ther directly targeted at ethnic mi-nority communities or contributesto a context in which their rights areundermined. Most racists are not in-terested in climbing to the top of asolidarity hill in order to get theirabusive opinions off their chest.

International law permits limited re-strictions on the right to freedom of

expression in order to protect vari-ous interests, including the rights of

others. Article 19 of the Interna-tional Covenant on Civil and Politi-cal Rights (ICCPR) provides athree-part test to ensure that restric-tions, when they are introduced, donot undermine the general right. Ac-cording to this test restrictionsshould be: provided by law; safe-guard a legitimate interest; and nec-essary to secure this interest (pro-portionality).

It is clear that prohibiting hatespeech easily passes the tests of pro-tecting a legitimate interest and pro-portionality. There is no greater le-gitimate interest than the humanrights of an individual, in this casemembers of ethnic minority com-munities. This issue is specificallyaddressed in Article 4 of the Interna-tional Convention on the Elimina-

“Deliver to your municipal-ity the head of a n****rand receive a voucher forthe value of 20 Euros”,Graffiti documented by anENAR member, ENAR EUShadow Report 2004.

International law permits limited restrictions on the right to freedom of expression in order to protect various interests, including the rights of others.


tion of All forms of Racial Discrim-ination (ICERD). However, despitea long-standing commitment toICERD, in some European coun-tries combating hate crime is notprovided for in law. Consequentlythe right to freedom from racial ha-tred is unevenly protected across theEuropean Union. Similar to thethree-part test in the ICCPR, Article10(2) of the European Conventionon Human Rights recognises thatfreedom of expression may be lim-ited, in particular for the protectionof the rights of others.

Freedom of speech is not an end initself, but a means to a free society.It is a tool to which everyone shouldhave access in order to promote un-derstanding and dialogue in an in-clusive and diverse Europe. As suchany debate on the right to freedomof speech must be placed in a widercontext, and should not divert atten-tion away from efforts to protectother human rights, such as the rightto live free from fear.

So, what does the recent contro-versy concerning the publication ofcartoons of Mohammed in Denmarktell us about the state of freedom ofspeech in the European Union? Inreality, very little. In 2005 when thecartoons were first published manyof ENAR’s members across Europewere shocked by such a blatantlyprovocative action. Others recog-nised this incident as one more in aseries of worrying developments inwhich a number of EU memberStates have moved away from com-mitments to diversity and equality.

The controversy does draw attentionto the fact that social boundaries areconstantly evolving as power rela-tions and what is acceptable and un-acceptable change. While Europe

must now respond to increasing lev-els of diversity in the twenty-firstcentury, the fact that social bound-

aries are constantly re-negotiated isnot a new phenomenon and itshould not come as a surprise toanyone.

Given Europe’s particular historicaland social context, holocaust denialhas provided a context for this on-going discussion during recentdecades. Holocaust denial is illegalin a number of European countries,as their governments hold that it ismotivated by an anti-Semitic andanti-democratic agenda.

Responding to the cartoons contro-versy, Commission President Barrosoacknowledged that: “Freedom ofspeech has limits, as well. These mustbe respected. They are defined and en-forced by the law and legal systems ofthe Member States of the EuropeanUnion. It is self evidently unaccept-able to go outside the law” (15 Febru-ary 2006, emphasis added).

However his analysis is more of anoptimistic forecast than a reality.Since 2001 the European Union hasfailed to agree an instrument thatwould provide for criminal harmon-isation of hate speech across the Eu-

ropean Union. The failure of the Eu-ropean Union to adopt the Frame-work Decision on Racism andXenophobia raises serious questionsabout the commitment of Europeangovernments to fight racism andprotect the rights of ethnic minoritycommunities.

Europe must create the conditionsfor full and active participation ofethnic minority communities. Anti-discrimination protections are es-sential, but must be complementedby action that protects minoritiesagainst incitement to hatred andracist crimes.

Increasing demographic, cultural,religious and ethnic complexityposes challenges for European soci-eties. As outlined in the Constitu-tional Treaty, Europe is committedto the values of respect for humandignity, freedom, democracy, equal-ity, the rule of law and respect forhuman rights, including the rights ofpersons belonging to minorities. Itwas never suggested that this wouldbe easy, but Europe must rise to thechallenge it has set itself.

Europe is changing, racism ischanging, and we need to recognisethat meeting the challenge we haveset will require practical action, ac-tion that may not always be com-fortable. It may seem self evidentbut defining integration as a two-way process means just that: rightsand responsibilities for both the ma-jority and minority populations.This is about much more thanwords. In practice it will meanchange and accommodation at alllevels of society.

The challenge for Europe is not tosomehow find a delicate balance be-tween lofty liberal ideals and rela-

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“Freedom ofspeech is notan end in it-self, but ameans to afree society.”

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tivist multiculturalism. The challengeis to realise the values that Europe isbased on in everyday practice. Eu-rope has chosen its path, it is not aneasy one, and diversions such as therecent debate over the cartoon contro-versy do not make it any easier.

Freedom of speech is a very seriousissue for all democracies. However,it is nonsensical to build a frame-work for integration and inclusion,while picking away at its founda-tions by failing to respect, and rea-sonably accommodate, diversity.

Wherever one stands on the difficultand complicated debate surroundingfreedom of speech, there is no doubtthat the recent controversy damagedthe bigger project: fostering inte-grated societies.

The real debate is not about limitingrights, but rather how best to protectthe rights of everyone living in theEuropean Union. The real danger isnot the so-called ‘clash of civilisa-tions’ but rather failing to addressracism and exclusion in Europe.

ENAR is a network of some 600 Eu-ropean NGOs working to combatracism in all EU Member States. Itsestablishment was a major outcomeof the 1997 European Year againstRacism. ENAR is determined tofight racism, xenophobia, anti-Semitism and Islamophobia, to pro-mote equality of treatment betweenEU citizens and third country na-tionals, and to link local/regional/national initiatives with Europeaninitiatives.More information on: http://www.enar-eu.org

Punishing Religious Defamation andHolocaust Denial: Is There a DoubleStandard?By Abraham Cooper and Harold Brackman*


The raging global controversy overthe Danish cartoons caricaturing theProphet Mohammed has caused Eu-ropeans to consider as a way to de-fuse future tensions the appropriate-ness of restrictions on free expres-sion, designed to protect religionsfrom insult and injury. There is a re-lated debate about whether a “dou-ble standard” exists where ‘Holo-caust Denial’ is punished but words

or images offensive to religiouscommunities are not. The SimonWiesenthal Center is a global hu-man rights NGO, dedicated to thelegacy of the Nazi Holocaust and topromoting individual freedom andminority rights, that has had to grap-ple with issues of this kind since itsinception in 1977. Based on our ex-perience, we will offer a perspectiveon the value and limits of “hatespeech” laws in the age of the Inter-net as well as the rationale for pre-serving existing legislation punish-ing Holocaust Denial.

Punishing “Religious Defama-

tion”

Can an open democratic societyever rightly punish religiousdefamation? We believe that rightsand responsibilities must be bal-anced in a democratic polity. Inter-national and European human rightslaws recognize governments shouldstrike a balance between guarantee-ing free expression and protectingminorities against harmful treat-ment. For example, Article 26 of theUN’s International Convention onCivil and Political Rights (1966) de-

“We who live beneath a sky still streaked with the smoke of crematoriums have paid a high price to find out that evil is really evil.”

Francois Mauriac

clares that “the law shall prohibitany discrimination and guarantee toall persons equal and effective pro-tection against discrimination onany ground such as race, colour,sex, language, religion, political orother opinion, national or social ori-gin, property, birth or other status.”

In the United States, the FirstAmendment of the Bill of Rights en-shrines the right to free speech, yetcivil rights laws punish prejudicialverbal or written expression in thecontext of protecting minority rightsto housing and employment opportu-nities. The U.S. Supreme Court hasalso articulated the “fighting words”doctrine allowing punishment forwords “which by their very utteranceinflict injury or tend to incite an im-mediate breach of the peace.” In ad-dition to lewd, obscene, and libelousspeech, “fighting words” include ut-terances that threaten harm against orinstill fear in racial and religious mi-norities. Spray-painting epithets des-ecrating mosques, churches, or syna-gogues are punishable in many juris-dictions, not only as acts of vandal-ism, but as “hate crimes” with en-hanced penalties because of bias mo-tivation.

Laws punishing religious defama-tion are justifiable, but must becarefully drawn and circumspectlyenforced. The UK’s new Racial andReligious Hatred Bill is designedappropriately to protect religiouspractice against intimidation,threats, and menacing words but notmerely against abusive and insult-ing language. The law should be en-forced in a way respectful of com-mon law protections of free speech.For example, it is one thing for abigot to spout derision of Islam orChristianity from a street corner. Heought to be allowed to speak his

piece unless he disrupts traffic andbecomes a public nuisance. It is an-other thing for him to aggressivelyharangue citizens enroute to prayer.Under those circumstances, prose-cution under an “incitement of reli-gious hatred” statute may be verymuch in order. Such laws should

also be enforced to protect the rightsof easily identifiable believerswhether Orthodox Muslims, Jews,Sikhs, or Hindus to walk freelydown the streets, and be part of pub-lic life, without being verbally as-saulted by bigots. But beware:strongly worded legislation does notautomatically provide enhancedprotection of individual rights orcommunities. Witness Article 282of the Russian Federation’s criminalcode. While it provides punishmentfor inciting ethnic and religious ha-tred, there are critics who chargethat the Putin government is admin-istering it in a politically biased andcapricious way.

The Limits of Legislation

Further, advocates of laws punishing“religious defamation” must under-stand that the legitimate scope ofsuch legislation is limited. Westerndemocracies even those that nomi-

nally retain established churches(such as the Anglican Church)essen-tially reject a theocratic union of reli-gion and state. Muslims or other reli-gious believers who want to punishinsults to their religious symbols willbe disappointed by secular laws thatare designed to protect free religiouspractice not punish blasphemy. TheLaw cannot privilege the symbols ofone religion over another, and it mustprotect freedom not only of believersbut also of atheists who do not be-lieve. The freedom to dissent trumpsthe dictates of religious orthodoxy.Muslim communities in Europe can-not expect democratic governmentsto punish Muslim dissenters forheresy or apostasy. As U.S. SupremeCourt Justice Oliver WendellHolmes, Jr., put it, there can be noreal freedom unless we grant “free-dom for the thought that we hate.”European intellectuals since Voltairehave raised the battle cry of“Écrasez l’infâme!” against organ-ized religion. We may disagree, yetwe must to continue to defend theirright to be wrong.

What about the offensive Danishcartoons? Satirizing religionwhether Christianity, Judaism, or Is-lam is not a “crime” justifying in-fringement on freedom of the pressand freedom to dissent even whenthat freedom is being abused. Theproper remedy is for indignant citi-zens to avail themselves of all legalmeans to express their anger includ-ing public protest and economicleverage.

Punishing Holocaust Denial

In addition to Israel, eleven Euro-pean countries Austria, Belgium,the Czech Republic, France, Ger-many, Lithuania, Poland, Romania,

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“Rights andresponsibili-ties must bebalanced in ademocraticpolity.”

Slovakia, Spain and Switzerlandpunish Holocaust Denial. Except forSpain, with its fascist legacy, andSwitzerland, with its own-check-ered history as a World War II neu-tral, all the countries on the list wereabsorbed by, occupied by, or alliedwith Nazi Germany. They also allsaw their Jewish minorities devas-tated or annihilated during the Holo-caust.

If one agrees with those in the UnitedStates who are called “First Amend-ment absolutists” who insist restric-tions on free expression are never jus-tified, then Holocaust Denial laws areanathema everywhere. However, adifferent conclusion follows if onebelieves that within the broad param-eters of universal human rights pro-tections countries have the right tomake laws regulating speech that re-flect their own distinctive traditionsand historic obligations.

Holocaust Denial laws are on thebooks in countries where Nazi, Nazipuppet governments, and allied fas-cist states, practiced genocide andcrimes against humanity againstJews, gypsies, and other minoritiesas statecraft, often with enthusiasticpopular backing. It was understoodthat post-WWII nations emergingfrom the grip of Nazi Germany hadto demonstrate to their victimizedneighbors that they were new demo-cratic societies committed to re-nouncing the Nazi past. In Ger-many, this included the prosecutionof war criminals, an anti-totalitarianreeducation of the population, andpunishment of any renewed publicembrace of Nazism. Anti-Nazistatutes punishing Holocaust Denialwere part of the price such societiespaid to be accepted back into thefamily of civilized nations. In coun-tries where potent neo-Nazi move-

ments continue to use HolocaustDenial as a code word for justifyingnew genocides, European govern-ments balk at treating as ‘protectedspeech’ the toxic libel that the Nazi“Final Solution” was a “myth.”

This does not mean that laws pun-ishing Holocaust Denial are justi-fied, everywhere and for all time.Professor Deborah Lipstadt, whoconvinced a UK court that it was ac-curate for her to denounce DavidIrving as a Holocaust Denier, isskeptical about the value of the Aus-trian law that jailed Irving for deny-ing the Holocaust in a speech he de-livered in Vienna. She is right thatsuch laws do not automatically stopHolocaust Denial. The proliferationof Holocaust Denial websites dra-matically underscores the limita-tions of any national laws, or eveninternational conventions, to elimi-nate or punish any form of hatespeech.

Yet the democratically elected gov-ernments of Austria and Germanystill see the criminalizing of the de-nial of the Nazi genocide as an ap-propriate gesture to the millions ofinnocents mass murdered by theThird Reich and a needed strategyto forestall resurgence of Neo-Nazimovements within their borders.Apparently, they and other Euro-peans agree with Dr. Judea Pearl, fa-ther of slain journalist Daniel Pearl,who said he believes religious andnational symbols are best protectedby “rules of civility, not law, withthe exception of Holocaust-relatedsymbols, whose abuse implies li-cense to repeat, namely incitementto genocide.” There may yet comea time when civil liberties and re-spect for minority rights are sodeeply rooted in the lands wheregenocidal fascism once ruled that

Holocaust Denial laws will nolonger be required for democraciesto defend themselves against thosewhose goal is completing Hitler’sdemonic mission. On that day in-stead of punishing Holocaust Denialit will be sufficient for all to em-brace the 1998 Declaration of theStockholm International Forum onthe Holocaust and join with the 20nations that currently belong to theTask Force for International Coop-eration on Holocaust Education, Re-membrance, and Research (ITF).What a tragedy that, to date, not asingle Arab or Muslim state hasjoined the ITF!

So, Is There “A Double Stan-

dard”?

As recent headlines attest, the Mus-lim Cartoon Jihad complete withtorched diplomatic compounds andChristian churches, beheading ofwestern “infidels,” and jailing ofMuslim independent journalists alsoinvolves Tehran’s leveraging ofHolocaust Denial and Jew-hatred toassert a claim to leadership of the1.2 billion strong Arab and Muslimworld. Tehran is sponsoring a Car-toon Exposition of its own picturingsatanic Danish “Zionist agents”with Stars of David on their sleevesas those responsible for mocking theProphet. It’s inviting a rogue’sgallery of Holocaust Deniers fromaround the world for an upcoming‘scientific’ conference on the Holo-caust. It wants to send a “HistoricalTruth Squad” to Auschwitz to provethat the Holocaust never happened.

Why the fixation on Holocaust De-nial? Because deconstructing col-lective memory of the Shoah is thefirst building block for a new geno-cide against Israel and the Jews.

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Furthermore, in antisemitism ex-tremists know they tap the well-springs of the world’s most potentand durable ideology of hate. Noother noxious ideology has the pro-tean quality that has made Jews,since their emancipation from me-dieval ghettoes, the all-purposescapegoat for the world’s discon-tents against capitalism, socialism,democracy, liberalism, secularism,globalization, and every other trendassociated with Modernity.

So when demonstrators screamagainst Western double standards forpunishing Holocaust Deniers likeDavid Irving while not penalizingDanish cartoonists, they are not de-fending free speech or religiousequality both of which are denied toChristians and Jews almost every-where in the Arab and Muslim world.Instead, they are demanding that theworld accept that they have soleclaim to global “victim status,” andthat the Jews together with Euro-peans and Americans are the villainsresponsible for Modernity’s sinsagainst them. Just as the appeal ofHitler’s antisemitism extended be-yond the German heartland to the dis-located, disaffected European massesof an earlier age, Iranian PresidentAhmadinejad’s Holocaust Denial at-tempts to rally Muslims from Londonand Paris to Malaysia and Indonesia.Imported from Europe and America,it is re-exported in the form of state-craft, websites, and as ideological“blowback” meant to destabilize theWestern world.

Still, the charge emanating fromIran and elsewhere of a western“double standard” that punishesHolocaust Denial but not religiousdefamation needs to be answeredexplicitly. First, let it be admittedthat there is much in the history of

the Western world for which apolo-gies are in order. Germany has maderestitution to Holocaust Survivors,and has apologized to French andPoles for World War II atrocities.The Vatican has apologized for thedeicide accusation against Jews aswell as for sanctioning the Atlanticslave trade. President Bill Clintonexpressed “regret and contrition”for American slavery, while the U.S.has made restitution payments to in-

digenous peoples as well as to thevictims of Japanese-American In-ternment. The government of theUK has apologized to Sikhs andMaoris, though not yet to the Irish.And the list goes on.

But there is no “double standard” re-garding the punishment of HolocaustDenial for which apology is needed.Firstly, the charge of inconsistencymisstates the legal situation in muchof Europe. Denmark, where the car-toons caricaturing the Prophet origi-nally appeared, has no laws againsteither Holocaust Denial or religiousdefamation. Great Britain, on theother hand, has recently approvedlegislation punishing “incitement toreligious hatred” which is being en-forced against those who use “threat-ening words” against Muslims or Is-lam; but it rejected some time agolegislation punishing Holocaust De-nial, choosing instead educational ap-

proaches including the commemora-tion of an official Holocaust Remem-brance Day.

Second, laws criminalizing Holo-caust Denial are an attempt to pro-tect both Jewish minorities and thewider democratic order from thethreat of resurgent movements witha history of practicing genocide.They do not protect Jews or Judaismor Israel against criticism, satire,ridicule, or even defamation. Toconfirm this, all one needs to do isto look at recent cartoons, from oneend of Europe to the other, depictingAriel Sharon as a monster devour-ing Palestinian children or inscrib-ing a swastika within the Star ofDavid to criticize Israel. The Jewishcommunity has quite rightlyprotested against such cartoons as aviolation of decency and civility,but it has not called for criminallyprosecuting the cartoonists.

By the same token, Muslims in Eu-rope, the U.S., and the Middle Easthave every right to exercise theirrights to protest the Danish cartoonsand to peacefully pressure for re-dress. But their neighbors have theright to challenge them to live up tostandards of moral consistency anduniversal human rights. The AfghanCourt that threatened a Muslim withdeath for converting to Christianityviolated these standards. So did theMuslim newspaper in Belgium thatresponded to the Danish cartoonswith its own cartoon showing AnneFrank in bed with Adolph Hitler.The road to Tolerance is a two waystreet.

Rabbi Abraham Cooper is associatedean of the Simon Wiesenthal CenterDr. Harold Brackman, a historian isa consultant to the Wiesenthal Center

“The road toTolerance is atwo waystreet. ”

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Freedom of speech is undisputed as afundamental value in Europe. With-out it, democracy would be unthink-able, and any state-imposed restric-tions from above would tend to in-cline towards dictatorial structures.At the same time, there are fewphrases recently which have suchnegative connotations as ‘preacher ofhate’. Hate speech can by no meansautomatically expect to be simplynoted down under the heading of‘freedom of speech’. Just as freedomof speech is valued positively, so ishate speech valued negatively.

Legislation and ethical code

Legislation in European countrieshas responded to this apparent con-tradiction in different ways, becausesocial peace and the bonds that holdsociety together should be protected.In this respect clauses have beenadopted, with differing emphases,which represent a safeguard againstinfluences that are dangerous to thepublic, for instance inflammatory orderogatory expressions of opinion.Germany and Austria have rightfullytaken special precautions intended toprevent the revival of, or move to-wards, the ideas of the Hitler period.

Blasphemy clauses are applicable toreligion. Every faith is not automati-cally protected in every land. Theconcept of a ‘state church’ can stillbe found in legal texts which exclu-sively confer special protection to themajority religion.

In many places, journalists haveadopted their own ethical code ofconduct. This does not mean thatself-censorship should be imposedon press freedom, but it does meanthat self-control in the sense of a fairand well-balanced journalismshould be remembered.

Responsibility is therefore a keyconcept in the exercise of freedomof speech. Concepts like ‘accordingto good manners’ or ‘not offendingagainst decency’, which have alsobeen inserted into legal texts, showthat ultimately we are venturing intoa field which cannot be grasped ju-ridically in every last detail. Socialconsensus has undergone a change,as we can observe in the case ofblasphemy clauses. As far as Chris-tianity is concerned, the ‘painthreshold’ here has become signifi-cantly higher in recent decades.

United in diversity – Muslims

in Europe

A new situation has come about,however, due to the increasing plu-

ralism of European societies. Thisrelates to inner social diversity aswell as to diversity resulting frommigration. A collective feeling thatsuch or such a thing is, in a mannerof speaking, ‘out of the question’seems more compatible with homo-geneity than with diversity. Themotto of the European Union,‘United in diversity’, gives positiveexpression to the underlying chal-lenge here, because it assumes thatthere is a consensus to be reached inessential points regarding living to-gether. A readiness for dialogue is aprecondition for this.

Muslims in Europe have expressedtheir position repeatedly and clearly.The concluding statement of thefirst European Conference of Imamsin Graz in 2003 declared that Mus-lim identity is compatible with val-ues of democracy, the rule of law,pluralism, and human rights. Thisnaturally includes freedom ofspeech, a topic which the first Aus-trian Conference of Imams in April2005 dealt with decisively. With themurder of Theo van Gogh still freshin people’s minds, freedom was de-scribed as mankind’s most impor-tant possession apart from life itself,and violence as a reaction to unpop-ular opinions was condemned. Thedeclaration reads as follows: “Noone should fear for their life becauseof their own opinion, and no oneshould be discriminated against or

Freedom of speech and hate speech:Should there be limits to freedom ofspeech or not – and, if so, which?By Carla Amina Baghajti

“Truly, good and evil are not the same. Requite evil with good and he who was your enemy will become your dearest friend.”

(Koran 41:34)

be hindered in the practice of theirreligion or world view. Differencesin point of view and opinion are tobe respected by Muslims as beingwilled by God. All forms of com-pulsion in religion shall therefore berejected.”

Both declarations met with a verypositive response and were greatlyapproved. They were however feltto be in contrast to the reality ofcountries in the Muslim world.Muslims in Europe are painfullyaware of this fact and feel continu-ally exposed to pressure to justifythemselves. It is therefore importantto stress that the absence of freespeech in this or that country ofMuslim character (by no means inall!) is not the result of Islam, but isdue to the lack of democracy in theprevailing systems of those coun-tries. It would be a false conclusion

to analyse this as a symptom of Is-lam. At the same time it is extremelyimportant to engage in a dialoguethat incorporates theology, in orderto emphasise the ethical guidelinesof Islam both inwardly and out-wardly. In this way there could bean increased incentive among Mus-lims to participate, in the sense of acommon good. In addition, thiscould create an outward-looking re-lationship of trust that is essentialfor living and prospering together.

Powerful arguments can be found inIslam for the significance of freespeech in connection with the re-sponsibility to get along well withone another. As with every action,intention is the deciding factor, andit should encourage self-reflection.“Wisdom and good speech” form apair. Moral courage is required, forit says in the Hadith that injustice

can be found in the course of one’sown actions or speech, but is likelyto be found at least in the heart(freedom of opinion). “The greatestJihad* is a true word spoken againsta tyrant.” There are many instanceswhich point out the far-reachingconsequences of thoughtlessspeech, perhaps that born of emo-tion, and which therefore advisekeeping silent, if nothing construc-tive can be said. The description ofParadise includes the message thatin Paradise there is no “empty chat-ter”. The Koran warns against in-sulting that which could be holy toothers, since this could, in conse-quence, lead to an attack on one’sown values. God is described as let-ting every community regard itsown way as beautiful, and “compe-tition in good works” is advised. “Agood word is like a good tree,whose roots are firm and whose

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Responsibility is key in applying freedom of speech.


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branches reach up to heaven”, statesthe Sura Ibrahim, verse 24.

The most recent statement of opin-ion on this topic, which was made atthe second European Conference ofImams in Vienna in 2006, refers in-

directly to the discussion about thecaricatures of the Prophet Muham-mad, which were commissioned asa deliberate provocation. The state-ment of opinion affirms free speechand press freedom as a “general andindispensable good” and does notdemand additional legal provisionsin order to protect the religious feel-ings of Muslims. However, the ne-cessity of dialogue is also stressed,in order to achieve a social con-sciousness that recognises and re-spects these feelings.

Some considerations for the futureand for further discussion:

� Freedom of speech and freedomof religion should not be playedoff against each other. They areclosely connected as pillars ofour understanding of humanrights.

� Since, regarded historically,freedom of speech had to begained in Europe by a struggle

from below against thoseabove, as an instrument withwhich to criticise openly thosein power it sometimes has re-course to polemic. In light ofthis, blasphemy must be consid-ered as depending upon the casein question. If a minority is de-liberately provoked by the rul-ing majority through blas-phemy, then, as an action fromabove against those below, it isanything but emancipating. In-deed, this is discrimination.

� Wherever there are areas whichcan be perceived as “doublestandards”, these should bedone away with. This concerns,for example, the legal system, ifMuslims, unlike members ofthe majority, can find no basisthat offers decisive protectionfor their religion. Even if suchlegal provisions would, ideally,not be applied, they would stillgive a substantial impetus toraising awareness of religiousdiversity, in the sense of a de-sired social consensus.

� Quite apart from the legality ofthe situation, it would be unfairto expect Muslims to put upwith possible abuse of their reli-gion without protest. The insultis doubly hurtful when the para-doxical situation arises that themost coarse offences take place,but the right to protest againstthem is morally denied. If in-sults towards the Islamic reli-gion continue without anyoneprotesting, then as a result thethreshold of hostility towardsIslam is lowered, often withoutanyone noticing.

� A knowledge offensive aboutIslam could help to dispelclichés, simplifications, preju-dices and projections (with keyissues being the role of women

and the question of the divisionbetween the state and religion).

� On the basis of these broadenedhorizons, a “culture of respect”should be constructively pro-moted as an additional stage inour concept of tolerance. Al-ready Goethe wrote that tolera-tion is ultimately a kind of in-sult. In appreciating what theidea of tolerance has achievedin terms of intellectual progressin Europe, it should be remem-bered that tolerance is rooted ina hierarchical procedure and apatronising approach to theother that begins with an as-sumption of one’s own intellec-tual superiority. An honest dia-logue can, however, only takeplace when it is eye to eye, onequal ground, in openness to-wards that which is new. More-over, understanding should notbe confused with the adoptionof the other person’s point ofview.

� If one tends to define oneself interms of the negative demarca-tion of that which is “foreign”,then this tendency does not onlyreveal inner weakness; it is al-most an invitation to depict this“other” in the worst possiblelight. This motive for hatespeech should be carefully ob-served. What is problematicabout hate speech is that itcould be perceived by the recip-ient as justified and even “true”.

� Absolute claims are exclusiveand therefore dangerous. It isprecisely religions, with theirideas of prophecy, which aretraditionally suspected of arro-gantly claiming to be in solepossession of the truth. Mis-sionary zeal and the narrow-mindedness associated with itshould however be criticised

“Muslims inEurope arecontinuallyexposed topressure tojustify them-selves.”

with Europe’s inner diversity, per-haps this is the key to understand-ing why it proves all the more diffi-cult to deal with a diversity that islabelled – justifiably or not – as“foreign”?

If we take stock of dealings with di-versity throughout European his-tory, the result is not exactly posi-tive. It was precisely religious di-versity which people tried for along time to manage through terri-torial divisions. This failed.We shall need patience, combinedwith the readiness to develop. Thisis because the tasks which oneseeks to impose on Muslims arealso one’s own tasks. Integration

once again appears to be a two-waystreet.

Carla Amina Baghajati is thespokesperson of the Islamic faithcommunity in Austria.

* In Islam, Jihad means the individualstriving to lead a life that is pleasing toGod, for example by not cheating or ly-ing, or by not indulging in vice. In orderto distinguish between peaceful Jihadand armed Jihad, nowadays the termsgreater and lesser Jihad are used. Ac-cording to the current definition, thegreater Jihad is an individual or collec-tive striving which has nothing to dowith war. Only in the case of self-de-fence is the lesser Jihad warlike.

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Distorted. Inflammatory.The image of African people in the mediaA critical review of the treatment of overtand concealed racism at local levelBy Dieter Schindlauer

African people as a group are seldom mentioned in the Eu-ropean debate on the freedom of speech and opinion. Theissue arises mainly in connection with the following ques-tion: is there a right to balanced, non-pejorative reportingabout an ethnic group or a group defined by skin colour?

just as much when they comefrom a side that declares itselfto be against religion. It is evenremarkable that understandingof such a danger often hardlyever exists, because it is easy toconsider oneself to be abovesomething that one ascribes toreligion alone, in order to claima superior merit. It is nothingnew that radical criticism of re-ligion in Europe should repeat-edly choose Islam as a wel-come substitute target – thinkof Voltaire and his play aboutthe Prophet Muhammad.

� Politics and the media, as pow-erful agents and trend-setters,are called upon to act with spe-cial responsibility: to keep theirdistance from populist slogans,and not to aim to be as easy aspossible to understand. Theparticipation of minorities as aliving mirror of society must beensured.

� In the end, the theme of “free-dom of speech” should not beconsidered separately fromphenomena that are visible inthese times of increasing socialpressure and insecurity. In a“dog-eat-dog society”, work-place bullying and aggressiverhetoric are unfortunately partof everyday reality, and theyspoil the general climate. A cul-ture of dialogue is therefore notonly relevant to the debate onintegration: it concerns every-body.

The responsible use of freedom ofspeech is also linked to the maturityof the individual. It is a major chal-lenge to be ready to think, in re-sponse to a globalised world, interms of networks and with regardto the most diverse impulses. If it isalready difficult to come to terms

The views expressed in this articleare those of the author and do notnecessarily reflect the opinion ofthe EUMC.

It is only in the last few years thatAfricans, and indeed dark-skinnedpeople in general, have come to be avisible and permanent element of thepopulation of large European cities –

not only in the traditional multiethnicmetropolises of London, Paris andAmsterdam, but also in Rome,Berlin, Lisbon and Vienna, as wellas, slowly but surely, in Prague andWarsaw too. Encounters with peopleof African origin are increasingly be-coming a matter of daily experiencein public spaces. Yet there is as yethardly any sense, among the major-

ity white population, that these en-counters are a part of normal life.This is borne out by the images of‘blacks’ conveyed by the mainstreammedia. There is no question of nor-mality here. ‘Normal’ Europeans re-main white and continue to belong tothe majority community, while dark-skinned people are still perceived as‘abnormal’. In general, personswhose skin colour is black are as-signed, or conceded, one of twoplaces by the media. On the one hand,they feature – predominantly – in thecontext of criminal activity or ofother negative-sounding manifesta-tions, as embodied in the dangerousnewly coined phrase ‘abuse of asy-lum’; while, on the other, they areportrayed in exotic terms stemmingfrom stereotypes about African peo-ple – involving, for instance, untamed‘savagery’, carefree exuberance andunbridled sexuality.

The stereotype of the African

as criminal – a media con-

struct

Again and again, for example, gen-eral articles about drug-related crimeare illustrated with pictures ofAfrican people, thus reinforcing themisconception that drugs and blackskin are indissolubly linked. Thereare only a small number of moresensitive media organs that refrain,in their crime reporting, from men-tioning the origin and, in the case ofblack perpetrators, the skin colour ofthe suspects. As a result, skin colouris mentioned in the media only if it is‘different’ – that is, black. Henceblack-skinned people feature almostexclusively in connection withcrime. Inevitably, then, media con-sumers cannot fail to gain the im-pression that all Africans do is com-mit crimes. Reports about black

criminals convey messages such as“It wasn’t one of us”, or suggest thatthe crime rate would fall if therewere no more Africans in the coun-try. In this way, Africans come to beseen as an ongoing problem, thecorollary being the constant questionof whether one might perhaps bebetter off without them (the others).

The connections between thesemanifestations are sufficiently fa-miliar from studies conducted bycommunication specialists. Butwhat are their legal consequences?Is there a right to balanced, non-pe-jorative reporting about an ethnicgroup or a group defined by skincolour? Such a right cannot readilybe deduced from the present state of

international law or indeed of vari-ous national legislations. It is hardlypossible to compel private mediaentities by law to abstain from usingthe mechanisms described aboveand to work actively to encourage‘normalisation’ in relation to per-sons whose skin colour is black. Atany rate, the fundamental right tofreedom of expression after all in-cludes the right not to say some-thing. For this reason, at least with

regard to the private media sectorthere can be no right to reportsabout the concerns of people ofAfrican origin.

However, the situation is differentin the case of State-owned or State-controlled media. If it is realisedand acknowledged that existingracist stereotypes are being repro-duced by one-sided reporting andthat the division into ‘us’ and ‘them’(the ‘others’) is being maintained byconsistent disregard of the blackpopulation in the media, it is per-fectly possible for the State to im-pose an obligation to counteractthese phenomena, based for exam-ple on the United Nations conven-tion on the elimination of racial dis-

crimination. Television stations op-erated under public law have a gen-eral educational remit and are in ad-dition required to provide for eth-nic-minority programming. Yet therelevant slots are not very signifi-cant. The State also has a duty to in-fluence the private media sector inthis direction by non-legal means,for instance by awareness-raisingcampaigns or the provision of train-ing for journalists.

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ISSUE 18June 2006

Racist Graffiti: “Nigger go home you drugdealing monkeys”

Photo:Copyright:ZARA

The mechanisms described aboveare far removed from being suscep-tible to legal interpretation as ‘in-citement to racial hatred’ or prohib-ited forms of ‘hate speech’. Never-theless, it seems to me that – pre-cisely because of their subtle andpervasive action – they are ofteneven more dangerous than crude, di-rect hostility. They also demonstratethe limits of the law as a means ofcombating racism. So creative ef-forts using other approaches willneed to be made and reinforced.

Racist graffiti: concrete expe-

rience at local level

A different picture is presented by thewidespread phenomenon of racistgraffiti in the public environment. Ishould like to give a brief account ofrelevant experience in Austria. Racistgraffiti are so widely disseminated inAustrian cities – especially Vienna –and hence so conspicuous a fact ofeveryday life that NGOs are devotingmore and more attention to them.Countless examples can be foundthroughout the city, especially onwalls and on parts of the public trans-port infrastructure. A high proportionof these daubings are aimed directlyand extremely crudely at persons ofAfrican origin. They range from‘Fuck nigger’ via ‘Niggers go home’to ‘Kill niggers’. Although such ven-omous phrases constitute the criminaloffence of ‘incitement’ and can giverise to prosecution, the city is full ofthem. And it seems virtually impossi-ble to track down the perpetrators.

This is certainly not merely an Aus-trian but a Europe-wide phenome-non. Although it is often clear that theprotection of freedom of opiniondoes not extend to such manifesta-tions and that a criminal act has been

committed (usually damage to prop-erty or incitement), many graffiti nev-ertheless persist in the urban land-scape for very long periods. Publicinstitutions and public transport oper-ators do their best to get rid of thesedaubings promptly, whereas most pri-vate householders are not prepared topay for their removal. Unlike, say,Berliners, Austrian residents are un-der no legal obligation to do so. TheCity Council of Leicester, in the

United Kingdom, has adopted an in-teresting approach to this problem: itremoves racist and sexist graffiti freeof charge. In the Zurich model, on theother hand, homeowners remain re-sponsible for removal but can insureagainst graffiti on favourable terms. Itought, however, to be clear that theremoval of inflammatory graffiti isincumbent on the State. Such mani-

festations constitute criminal actsboth in their commission and in theirresults. If inflammatory graffiti arenot removed as quickly as possible,their baleful effect persists untram-melled and the breaking of the law isperpetuated. Yet all States party to theUnited Nations convention on theelimination of racial discriminationare required actively to eliminatesuch tokens of racial hatred. This isall the more necessary because the ef-fect of such pervasive public incite-ment is to create an extremely hostileand humiliating climate for membersof the targeted minority, while at thesame time inevitably arousing the im-pression among the majority popula-tion that even totally unacceptableand in fact illegal statements can beleft openly on display and go uncon-tradicted.

Austrian NGOs are currently ob-serving with great concern the trialsof certain individuals who at-tempted to paint over racist graffitiand were then prosecuted for caus-ing damage to property. Ought anarea of undamaged concrete reallyto be more important in law thanprotection from incitement and ex-clusion?

Mag. Dieter Schindlauer is a lawyerand Chair of ZARA [the AustrianCentre for Civil Courage and Anti-Racism] and President of the Aus-trian Legal Action Association forEnforcing the Rights of Victims ofDiscrimination. Consultant to theLudwig Boltzmann Institute of Hu-man Rights. Austrian member of theEuropean Commission’s independ-ent expert monitoring group on thetransposition of anti-discriminationdirectives. Adviser to internationalorganisations and European gov-ernmental and non-governmentalorganisations. Diversity trainer.

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ISSUE 18June 2006

“If inflamma-tory graffitiare not removed asquickly as possible, theirbaleful effectpersists untrammelledand the breaking ofthe law is per-petuated.”

• "Decade of Roma Inclusion2005-2015", under the auspices of theWorld Bank and others

• European Commission’s: Com-munication on the FundamentalRights Agency. Website: http://ec.eu-ropa.eu/justice_home/fsj/rights/fsj_rights_agency_en.htm

• 2007 - European Year of EqualOpportunities for All

• EUMC presentation in the Euro-pean Parliament (on invitation of theSocialist Group): "Racism and xeno-phobia in the EU". Brussels, 30 August2006.

• Inter-Agency Meeting (EUMC,ECRI, OSCE/ODIHR, UN CERD, UNOHCHR): "Combating Racism, RacialDiscrimination, Xenophobia and Re-lated Intolerance". Vienna, 11 Septem-ber 2006.

• Meeting of Government LiaisonContacts of the EUMC. Vienna, 14-15September.

• EUMC & EU Presidency side-event at OSCE Human Dimension Im-plementation Meeting: "Combating Is-lamophobia - Experiences of the EUand its Member States". Warsaw, 12October 2006

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Members Deputy Members

Belgium: Eliane Deproost Jozef De Witte

Czech Republic: Petr Uhl Jirí Kopal

Denmark: Niels Johan Petersen nomination pending

Germany: Claudia Roth Claus Henning Schapper

Estonia: Tanel Mätlik Michael Gallagher

Greece: Spyridon Flogaitis Nikolaos Frangakis

Spain: Rosa Aparicio Gómez Lorenzo Cachón Rodríguez

France: Guy Braibant Jean-Marie Coulon

Ireland: Anastasia Crickley Rory O'Donnel

Italy: Beniamino Caravita di Toritto Massimiliano Monnanni

Cyprus: Eliana Nicolaou Aristos Tsiartas

Latvia: Ilze Brands Kehris Gita Feldhune

Lithuania: Arvydas Virgilijus Matulionis Šarunas Liekis

Luxemburg: Victor Weitzel Anne Henniqui

Hungary: András Kádár Katalin Pécsi

Malta: Duncan Borg Myatt Claire Zarb

The Netherlands: Jenny E. Goldschmidt Gilbert R. Wawoe

Austria: Helmut Strobl Peter J. Scheer

Poland: Piotr Mochnaczewski Danuta Glowacka-Mazur

Portugal: Rui Pedro Pena Pires nomination pending

Slovenia: Vera Klopcic Tatjana Strojan

Slovakia: Miroslav Kusy Tibor Pichler

Finland: Mikko Puumalainen Kristina Stenman

Sweden: Hans Ytterberg Anna-Karin Johansson

United Kingdom: Naina Patel nomination pending

Council Of Europe: Gün Kut Maja Sersic

European Parliament: Chafia Mentalecheta Richard Séréro

European Commission: Francisco Fonseca Morillo Stefan Olsson

OBSERVERS

Bulgaria: Emil Konstantinov

Croatia: Josip Kregar

Romania: Monica Vlad

Turkey: Ioanna Kuçuradi

Chairperson: Anastasia Crickley Ireland

Vice Chairperson: Ilze Brands Kehris Latvia

Member: Helmut Strobl Austria

Member: Francisco Fonseca Morillo European Commission

Member: Gün Kut Council Of Europe

EQUAL VOICES

Next Issue: Autumn [email protected] http://eumc.europa.eu

EUMC Management Board 2004 - 2007

EUMC Executive Board 2004 - 2007

EUMC NoticeboardMeetings and Conferences

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the right to offend and the right not to be offended

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