European Court of Human Rights finds hate speech not protected by freedom of expression

Belkacem v Belgium (2017) ECHR 253

Summary

The European Court of Human Rights ('ECHR') has found that a conviction for the incitement of hatred, violence and discrimination under Belgian law did not breach the applicant’s right to the freedom of expression, as protected by Article 10 of the European Convention of Human Rights.

In videos published on YouTube, the applicant called for viewers to overpower non-Muslims, teach non-Muslims a lesson and join extremist groups.

The ECHR found against the applicant, stating that his attempt to rely on his right to freedom of expression was for ends which were manifestly contrary to the spirit of the Convention. In those circumstances, he could not rely on that right.  The ECHR also affirmed a Contracting State’s ability to oppose political movements based on religious fundamentalism. 

The ECHR's decision provides an example of how freedom of religion and freedom of speech can be balanced with the protection of people from hate speech.

Facts

The applicant, Mr Fouad Belkacem, a Belgian national, was the leader and spokesperson for “Sharia4Belgium”, a radical Salafist organisation. Part of Sharia4Belgium’s activities included the production of YouTube videos in which Belkacem urged Muslims to “fight” and “dominate” non-Muslims, whom he called “animals”. He also identified certain politicians by name and made similar comments about them specifically.

In 2012, Belkacem was prosecuted for his conduct under Belgian laws aimed at combating discrimination. Belkacem argued that he did not intend to incite hatred, violence or discrimination and was simply disseminating his opinions. Belkacem relied on Article 10 of the European Convention of Human Rights, which states:

Article 10 – Freedom of expression

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers …

The Antwerp Criminal Court found that Belkacem had intended to incite hatred, violence or discrimination, as evidenced by the aggressive tone of the messages and the fact that he had continued to upload new videos to YouTube even after he was summonsed to appear before the court. The court also found that Belkacem’s actions constituted a danger to public safety. He was sentenced to two years imprisonment and was fined 550 euros.

Belkacem unsuccessfully appealed this decision in both the Antwerp Criminal Court and the Court of Appeal, before appealing on points of law to the Court of Cassation, Belgium’s highest judicial body. The Court of Cassation found that Belkacem was not simply expressing his views, but rather, he had unquestionably incited others to discriminate against non-Muslims on the basis of their faith and that he had done so knowingly and intentionally.

Belkacem appealed to the ECHR on 29 April 2014. The ECHR specifically noted that the question it was required to consider was whether the laws under which Belkacem had been convicted were compatible with the Convention; not whether the individual elements had been established. In order to determine compatibility, however, it was necessary for the ECHR to be satisfied that the Belgian courts had properly assessed the facts.

Decision

The ECHR made the following findings:

• The remarks Belkacem had made in the YouTube videos were of a markedly hateful nature.
• Belkacem’s statements were incompatible with the values of tolerance, social peace, and non-discrimination, which underlie the Convention.
• Belkacem had attempted to use Article 10 in a manner that was contrary to its real purpose and for ends which were inherently contrary to the spirit of the Convention.
• A Contracting State is entitled to oppose religious fundamentalism as affirmed in an earlier decision of the Court of Human Rights where it was held that the act of defending Sharia Law, while calling for violence to establish it, could be regarded as hate speech.

The ECHR affirmed the “overriding and essential nature of freedom of expression in a democratic society”, but also noted this is not an unfettered freedom and that there are limits which exclude certain statements from the protection of Article 10. The ECHR then considered the potential limitations that could be imposed on Article 10 by Article 17 of the Convention, which states:

Nothing in the Convention may be interpreted as implying for any State, group or individual any right to engage in any activity or to perform any act aimed at the destruction of the rights or freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

In dismissing the appeal, the ECHR concluded that, in light of all the circumstances including Article 17 of the Convention, Belkacem was not able to rely on Article 10.

Commentary

Tension between the principles of freedom of speech and the need to protect people from hate speech exists far beyond the European Union, particularly given the prevalence of social media platforms such as YouTube, Facebook and Twitter.   

This decision confirms that, in Europe at least, hate speech cannot hide behind a veil of freedom of speech, as demonstrated by the ECHR’s application of the interplay between Articles 10 and 17 of the Convention in this case. Importantly, the Court has affirmed a purposive interpretation of the Convention to be read as a whole with its underlying principles to guide European judicial bodies.

Closer to home, the tension between free political speech and hate speech is omnipresent. In Victoria, the leader of the far-right United Patriots Front is currently facing charges of religious vilification under the Racial and Religious Tolerance Act 2001 (VIC) for appearing in traditional Islamic garb and staging a mock beheading in front of the Bendigo City Council offices in October 2015. The trial, which began in Melbourne on 4 September 2017, is expected to test the validity of Victorian racial and religious anti-hate speech laws. It is possible that similar arguments to those made by the applicant in Belkacem v Belgium will be advanced in that trial, namely that the laws in question are invalid as they infringe upon the implied freedom of political communication.

Although the decision of the ECHR is not legally binding outside the European Union, it does provide an example of how the courts attempt to balance freedom of religion and speech with the protection of people from hate speech.

A summary of the decision in English can be found here.

Gemma Thomas is a Senior Associate, Chris Morrow is a lawyer and Hector Sharp is a graduate at Norton Rose Fulbright.