Racial Vilification and the Balancing of Freedom of Expression with Freedom from Discrimination
Adan v Denmark, UN Doc CERD/C/77/D/43/2008 (21 September 2010)
The Petitioner, Saada Adan, filed a complaint against Denmark with the UN Committee on the Elimination of Racial Discrimination (CERD) alleging violations of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in relation to comments made in political discussion on a radio programme by a politician, Søren Espersen.
CERD considered Denmark in breach of its obligations under the ICERD, specifically arts 2(1)(d), 4 and 6, on the basis of failure to effectively prohibit acts of discrimination and dissemination of discriminatory ideas and a failure to provide effective protections and remedies to those aggrieved.
Facts
Background
In January 2003, a Danish daily newspaper published a letter to the editor written by Danish Peoples’ Party (DPP) member and sitting Member of Parliament, Pia Kjærsgaard, on the controversial topic of female genital mutilation. Ms Kjærsgaard stated:
why should the Danish-Somali Association have any influence on legislation concerning a crime mainly committed by Somalis? And is it the intention that the Somalis are to assess whether the prohibition against female mutilation violates their rights or infringes their culture? To me, this corresponds to asking the association of paedophiles whether they have any objections to a prohibition against child sex or asking rapists whether they have any objections to an increase in the sentence for rape
On 23 August 2006, Mr Espersen, a fellow sitting DPP Member of Parliament, appeared on a Danish radio programme. In the context of the discussion, he agreed with Ms Kjærsgaard’s January 2003 comments, stating:
Why should we then ask the Somalis about what they think about it when the majority of Somalis do it as something quite natural? I totally agree with her. Most precisely said.
Ms Adan, a Somali national living in Denmark, found Mr Espersen’s remarks to be offensive on two fronts, submitting that:
- there is no evidence that Somali parents in Denmark carry out the procedure against their daughters; and
- his endorsement of Ms Kjærsgaard’s comments validated and reinforced her offensive original statement.
Procedural History
In accordance with s 266(b) of the Danish Criminal Code, which prohibits public statements that threaten, insult or degrade others by reason of their ‘race, colour, national or ethnic origin, religion or sexual orientation’, Ms Adan filed a complaint with the Copenhagen Metropolitan Police.
On 14 May 2007, the complaint was dismissed with the Regional Prosecutor’s approval on the basis that Mr Espersen’s comments occurred in the course of political discussion and mentioned a ‘factual circumstance – the tradition for female genital mutilation amongst some Somali people’.
With the help of counsel (the Documentation and Advisory Centre on Racial Discrimination (DRC)), Ms Adan appealed the dismissal to the Director of Public Persecutions. Ms Adan argued that the 14 May 2007 decision made no reference to Somalis as victims of the discriminatory statements, but rather only mentioned ‘Muslims’ (a group of whom had submitted their own complaint to the Copenhagen Metropolitan Police), and sought to have the complaint returned to the Regional Prosecutor for further consideration.
On 16 January 2007 the appeal was dismissed, the Director of Public Persecutions stating that neither Ms Adan nor her counsel had standing to appeal as she was not considered to have an individual legal interest in the criminal case against Mr Espersen. On this basis of disentitlement to a remedy, Ms Adan lodged a communication with CERD on 15 July 2008.
Decision
Articles 2(1)(d), 4 and 6 of ICERD essentially require States parties to take positive action to condemn, prohibit and eradicate all forms of racial discrimination and provide effective protection and remedies to all – whether committed by individuals or collectives on either another race or ethnicity, or group of people belonging to another race or ethnicity.
Section 266(b) of the Criminal Code criminalised Mr Espersen’s statements, however the State’s failure to properly investigate Ms Adan’s complaint made the provision quite hollow practically, even in light of the additional guidelines on investigation of s 266(b) complaints issued by the Director of Public Persecutions post-Gelle v Denmark (a decision which concerned the publication of Ms Kjærsgaard’s original statements, involved very similar factual circumstances and unfolded procedurally in a very similar manner).
Denmark submitted that the Prosecutor’s assessment of Ms Adan’s complaint was ‘thorough and adequate’, concluding that the comments ‘did not exceed the particularly extensive freedom of expression enjoyed by politicians on controversial social issues’. While CERD agreed that the practice of the tradition in question is indeed a controversial issue,
the fact that statements were made in the context of political debate does not absolve the State party from its obligation to investigate whether or not such statements amounted to racial discrimination…exercise of the right of freedom of expression carries special duties and responsibilities, in particular the obligation not to disseminate racist ideas.
CERD considered the State’s action fell short of that required under the Convention, as ‘it does not suffice…merely to declare acts of racial discrimination punishable on paper…[these laws] must also be effectively implemented by the competent national tribunals and other State institutions.’ CERD considered that the failure to properly investigate Ms Adan’s complaint violated arts 2(1)(d), 4 and 6 of the ICERD.
CERD recommended that Denmark:
- provide Ms Adan with adequate compensation for the moral injury resultant from the State party’s breaches of ICERD;
- ensure that existing legislation be effectively applied; and
- widely disseminate the Committee’s opinion.
Relevance to the Victorian Charter
Under s 15 of the Charter, freedom of expression is guaranteed, but only insofar as it does not infringe on the rights of others, including the right to equality and non-discrimination before the law (s 8) and the right of reputation (s 14). Further, the right to freedom of expression is qualified by s 15(3), which provides that ‘special duties and responsibilities are attached to the right of freedom of expression’, which may be subject to lawful restrictions to ‘respect the rights and reputation of others’.
Currently, violations of the Charter are not freestanding actions; absent a concurrent offence for which an action may be brought to the court, judicial remedy for such a violation is not available. This is contrasted to the situation in Denmark, where publication of the discriminatory material is of itself an offence. Furthermore, rights under the Charter are only enforceable against a public authority. While the conduct of Members of Parliament would generally be caught by this definition, the conduct of private entities, for example the head of an organisation advocating racial violence, would likely not be.
This case illustrates the potential vulnerability of rights under a Charter model such as Victoria’s. Sufficient investigation and enforcement mechanisms must exist to ensure the delicate balance between competing rights.
Liz Austin is a volunteer with the Human Rights Law Resource Centre