Tuesday, September 22, 2020

The limitations of Freedom of Expression: lessons from Charlie Hebdo!

“Those who cannot remember the past are condemned to repeat it,” so says George Santayana. This week the French satirical magazine whose Paris offices were attacked by Islamic extremists in 2015 reprinted caricatures of the Prophet Mohammed cited by the gunmen who opened fire on its editorial staff.

The January 2015 attacks against Charlie Hebdo and, two days later, a kosher supermarket, touched off a wave of killings claimed by Islamic State across Europe. Seventeen people died – 12 of them at the editorial offices – along with all three attackers, the paper said the drawings “belong to history, and history cannot be rewritten nor erased”. Yesterday, in an impassioned speech during the court proceedings, the Charlie Hebdo lawyer, Richard Malka had this to say: “This is the spirit of Charlie Hebdo refusing to let go our freedoms. If we do that we will have betrayed our children.”

Freedom of expression is regarded internationally as a human right that must prevail in any system that claims to uphold democratic values. “It is an indispensable tool, and indeed one of the cornerstones of a democratic society. This freedom can meaningfully be enjoyed if there is in existence an accessible forum for the free exchange of ideas and information.

This role is to a large extent played by the press, whether print or electronic, which does so by promoting debate on public issues, providing information to the public, thereby enabling the general populace to make informed decisions, and generally to influence political choices, says Bugalo Maripe, Lecturer, Law Department, University of Botswana in an article titled: “Freezing the press: Freedom of expression and statutory limitations in Botswana.” Freedom of expression is guaranteed under section 12(1) of the Botswana Constitution.

There is authority from around the world that stipulates that rights cannot be limited    in such a way that would make the right itself nugatory. For example, in Chimakure v Attorney-General of Zimbabwe80, the Zimbabwe Constitutional Court remarked that “[to] control the manner of exercising a right should not signify its denial or invalidation.” The Human Rights Committee also noted that “when a State party imposes restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself.”

This article therefore takes a helicopter view of the ramifications of allowing the tenet of freedom of expression to have free reign here and elsewhere in the world. While the role of the media is acknowledged, it must be mentioned that the free flow of information and free speech generally, are not absolute. “They are hedged in by limitations and restrictions that are usually brought to bear in the context of constitutional provisions and legislative enactments,” explains Maripe.  I have selected a raft of instances that maybe used as precedents to cases that involve religious matters as they pertain to media and publishing.

Journalist’s conviction for defamation of a Christian community in a daily newspaper: The applicant, a journalist, sociologist and historian, wrote an article in a daily newspaper on Pope John Paul II’s encyclical “The Splendour of Truth”. An association called the “General Alliance against Racism and for Respect for French and Christian Identity” complained that the article defamed the Christian community. The courts allowed the civil claim lodged by the association, finding that some passages in the article undermined the honour and character of Christians and, more specifically, the Catholic community. The journalist was found guilty of publicly defaming a group of persons on the basis of their religion. He was ordered to pay the association one French franc in damages and 10,000 French francs in expenses, and to publish a statement concerning his conviction in a national newspaper.

Still, in another case, the British Board of Film Classification refused to grant distribution certificate for video work containing erotic scenes involving St Theresa of Avila and Christ Wingrove. Nigel Wingrove, was a film director, who wrote the shooting script for, and directed the making of a video work entitled Visions of Ecstasy. Its running time is approximately eighteen minutes, and it contains no dialogue, only music and moving images. According to the Wingrove, the idea for the film was derived from the life and writings of St Teresa of Avila, the sixteenth-century Carmelite nun and founder of many convents, who experienced powerful ecstatic visions of Jesus Christ. Visions of Ecstasy was submitted to the British Board of Film Classification (“the Board”), in order that it might lawfully be sold, hired out or otherwise supplied to the general public or a section thereof. The Board rejected the application for its blasphemous content, in accordance with the relevant provisions of domestic law.

Elsewhere in Slovakia, a weekly magazine published an article in which the writer criticised a Slovakian Archbishop for his proposal to have withdrawn the distribution of a film on the grounds of its profanatory and blasphemous nature. The article contained strong imagery of sexual connotation. He also alluded to the Archbishop’s alleged cooperation with the secret police of the former communist regime. Finally, he invited the members of the Catholic Church to leave their church if they considered themselves to be decent and alleged that the representative of the church was an ogre. Upon the complaint of two associations, criminal proceedings were brought against the writer and he was convicted of the offence of defamation of nation, race and belief and sentenced to a fine or to one month’s imprisonment. The Archbishop, who first joined the proceedings as an aggrieved person, publicly pardoned the writer and withdrew from the case. The courts concluded that the writer had defamed the highest representative of the Roman Catholic Church in Slovakia and had disparaged a group of citizens for their Catholic faith.

A publisher was convicted for having published a novel considered an abusive attack on the Prophet of Islam.The owner and managing director of a publishing company, published 2,000 copies of a book which addressed theological and philosophical issues in a novelistic style. The Istanbul public prosecutor charged the applicant with insulting “God, the Religion, the Prophet and the Holy Book” through the publication. The court of first instance sentenced the publisher to two years’ imprisonment and payment of a fine, and immediately commuted the prison sentence to a small fine.

The European Court of Human Rights noted that the case concerned not only comments that offend or shock, or a “provocative” opinion, but also an abusive attack on the Prophet of Islam. It considered that, notwithstanding the fact that there was a certain tolerance of criticism of religious doctrine within Turkish society, which was deeply attached to the principle of secularity, believers might legitimately feel themselves to be the object of unwarranted and offensive attacks through the following passages: “Some of these words were, moreover, inspired in a surge of exultation, in Aisha’s arms.”

According to the Venice Commission, on its Report on the relationship between freedom of expression and freedom of religion: the issue of regulation and prosecution of blasphemy, religious insult and incitement to religious hatred, Adopted by the Venice commission at its 76th plenary session, It was found that “the Commission does not consider it necessary or desirable to create an offence of religious insult (that is, insult to religious feelings)”without the element of incitement to hatred as an essential component. Neither does the Commission consider it essential to impose criminal sanctions for an insult based on belonging to a particular religionIf a statement or work of art does not qualify as incitement to hatred, then it should not be the object of criminal sanctions. It is true that penalising insult to religious feelings could give a powerful signal to everyone, both potential victims and potential perpetrators, that gratuitously offensive statements and publications are not tolerated in an effective democracy.

Balancing the Right to Free Speech against Other Protected Rights

Recognizing the importance of protecting freedom of speech, the European Convention on Human Rights provides that any limitation of freedom of expression must be prescribed by law, “necessary in a democratic society,” and aimed at certain enumerated objectives, one of which could be the prevention of disorder or crime. A determination as to whether a restriction on freedom of expression is necessary “requires the existence of a pressing social need, and . . . the restrictions should be no more than is proportionate.” Feelings or even outrage, in the absence of intimidation, however, was held by the European Court of Human Rights as insufficient for limiting freedom of expression: “To hold otherwise would mean that freedom of speech and opinion is subjected to the heckler’s veto.” 

For many years to come, the Charlie Hebdo case will remain a constant reminder of the way we tread in as far as the tenets of freedom of expressed are stretched. In as far as the same freedoms apply to other religions.

*John Churu is a journalist and can be contacted on [email protected] 


Read this week's paper

The Telegraph September 23

Digital edition of The Telegraph, September 23, 2020.