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