In Defence of Offence: Freedom of Expression, Offensive Speech and, the Approach of the European Court of Human Rights

Author:Aoife O'Reilly
Position:LLB (Law and Political Science) (Dubl), LLM (LSE), Graduate Diploma in Law (UHUD) Candidate
Pages:234-260
© 2016 Aoife O’Reilly and Dublin University Law Society
IN DEFENCE OF OFFENCE:
FREEDOM OF EXPRESSION, OFFENSIVE SPEECH,
AND THE APPROACH OF THE
EUROPEAN COURT OF HUMAN RIGHTS
AOIFE O’REILLY*
Introduction
The debate on free speech and the right to give offence has been reignited
in recent times, due in no small part to two incidents interpreted as egregious
attacks on a most revered civil liberty. The first (and in hindsight more
trivial) incident was a cyber-attack on Sony Pictures, allegedly in response
to the planned release of The Interview, a comedy about a fictional CIA
mission to assassinate North Korean Dictator Kim Jong-un. The attack led
to the leaking of internal emails and upcoming movies, with acts of violence
threatened if the film was released.1 The second was the killing of 12 people
in the offices of French satirical magazine Charlie Hebdo, apparently
motivated by revenge for its publication of cartoons satirising the Prophet
Mohammad.2 In both cases, the content expressed was arguably distasteful,
and given the reaction to the Danish cartoon scandal in 2005, there can be
no doubt that the French publication offended Muslim sensibilities.3 The
overwhelming response to both incidents was a renewed and vigorous
support for free speech. However, the right to offensive expression has
never been beyond restriction in Europe, and the European Court of Human
Rights (ECtHR) has often balked at the prospect of overturning state
determinations that particular speech is too offensive.
* LLB (Law and Political Science) (Dubl), LLM (LSE), Graduate Diploma in Law (UHUD)
Candidate. The author would like to thank Dr Andrew Scott for his helpful comments on an
earlier draft of this article.
1Keith Stuart, “Sony CEO calls Interview hack the most “vicious” attack in recent history,”
The Guardian, 6 January 2015 ceo-
interview-hack-vicious-attack> (visited 1 May 2015).
2Kim Willsher, Jon Henley, Julian Borger, Sandra Laville and Helen Davidson, “Hunt for
Charlie Hebdo suspects continues in rural France” The Guardian, 9 January 2015
(visited
1 May 2015).
3 Ian Cram, “The Danish Cartoons, Offensive Expression, and Democratic Legitimacy” in Ivan
Hare and James Weinstein ed., Extreme Speech and Democracy (OUP 2009), at 311-12.
2016] In Defence of Offence
235
This article explores a number of issues that arise with offensive speech,
focusing on ECtHR jurisprudence. Section 1 examines the traditional
justifications for freedom of expression and the extent to which they support
the protection of offensive speech. Section 2 then moves to investigate the
approach of the ECtHR to such speech, analysing in particular the strong
rhetoric espoused on the apparent right “to shock, offend and disturb.”
Given the robust protection afforded by the Court to religious sensitivities,
Section 3 considers whether it is appropriate to insulate religious feelings
from offence and probes the case law in this area. Section 4 contemplates
the manner in which offence-based regulation privileges members of the
majority culture in society, before Section 5 concludes with an appraisal of
arguments that such regulation should actually protect vulnerable cultural
minorities from being subjected to offensive speech.
I. Justifications for Free Speech
Freedom of expression is one of the pillars of democracy, afforded an
enviable position on a particularly high pedestal within many fundamental
rights frameworks. The First Amendment to the US Constitution, for
example, provides very strong protection for speech, with the US Supreme
Court explicitly stating that only speech that “is directed to inciting or
producing imminent lawless action and is likely to incite or produce such
action” can be curtailed.4 The International Covenant on Civil and Political
Rights also provides robust free speech guarantees, according individuals
the freedom “to seek, receive and impart information and ideas of all
kinds.”5 This right is subject only to restrictions deemed necessary to ensure
respect for the rights and reputations of others and for protecting national
security, public order and public health or morals,6 and where the speech
can be considered propaganda for war or “advocacy of national, racial or
religious hatred that constitutes incitement to discrimination, hostility or
violence.”7
While the European Convention permits the restriction of free speech
under Article 10, in theory any interference must be “convincingly
established” and based on “relevant and sufficient” grounds.8 Freedom of
expression enjoys robust respect due to assumptions about its many utilities.
4 Brandenburg v Ohio 395 US 444 (1969), at 448.
5 International Covenant on Civil and Political Rights, Article 19(2)
6 International Covenant on Civil and Political Rights, Article 19(3)
7 International Covenant on Civil and Political Rights, Article 20
8 Pedersen and Baadsgaard v Denmark (2006) 42 EHRR 24

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