Freedom of Expression and Religious Defamation Laws

The international law norm of freedom of expression is enshrined in a number of international human rights instruments including, inter alia, Article 19(2) of International Covenant on Civil and Political Rights (“ICCPR) [1] . However, the right is not absolute and may be restricted in narrowly defined circumstances [2] . While these instruments provide for certain grounds for restricting the freedom of expression, the State parties’ margin of appreciation [3] has led to much debate on the justification of limitations to this right. This paper seeks to bring out the relationship between religious defamation laws and the right to freedom of expression, through an analysis of the relevant provisions of and cases decided under ICCPR.

1. Restrictions on the right to freedom of expression

The right to hold opinions without interference is an absolute right, as observed by the Human Rights Committee [4] . It is only in the expression of opinion that special duties and responsibilities arise, and therefore restrictions may apply. These duties and responsibilities, addressed in Article 19(3) of ICCPR, relate to “the interests of other persons or to those of the community as a whole” [5] . Article 19(3) permits restrictions subject to a three-part test: the restriction must be (i) “provided by law,” and (ii) “necessary” for (iii) “respect of the rights or reputations of others” or for “the protection of national security or of public order (ordre public), or of public health or morals.” Any restrictions imposed by State on the freedom of expression must fulfill this three-part test [6] . This is reflected in the following statement of the Human Rights Committee:

“[W]hen a State party imposes certain restrictions on the exercise of freedom of expression, these may not put in jeopardy the right itself. Paragraph 3 [of ICCPR Article 19] lays down conditions and it is only subject to these conditions that restrictions may be imposed: the restrictions must be “provided by law”; they may only be imposed for one of the purposes set out in subparagraphs (a) and (b) of paragraph 3; and they must be justified as being “necessary” for that State party for one of those purposes.” [7]

The same approach has been adopted by the European Court of Human Rights (the “ECHR”). In particular, the ECHR has confirmed that when assessing a particular restriction, it is not faced “with a choice between two conflicting principles” but rather is faced “with a principle of freedom of expression that is subject to a number of exceptions which must be narrowly interpreted.” [8]

2. Religious defamation laws

The right to freedom of expression can be restricted when an exercise of the right is likely to result in discrimination, hostility or violence arising from incitement of religious hatred. This restriction is expressly set out in Article 20(2) of the ICCPR, which states that “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” [9] Laws prohibiting religious defamation, while enacted to protect the right to freedom of belief and religion guaranteed in Article 18 of ICCPR, are in effect a restriction on the right to freedom of expression. The Human Rights Committee and ECHR have adopted this approach [10] and considered in this sense, religious defamation laws are governed both under Article 20 and Article 19(3) of ICCPR.

2.1 Religious defamation laws – the threshold of Article 20

Laws restricting freedom of expression on the ground of prohibiting religious defamation are permissible under Article 20 of ICCPR. The first test that a religious defamation law has to pass is the threshold of Article 20(2). As explained by the U.N. Special Rapporteur on freedom of religion or belief, Asma Jahangir, and the U.N. Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related tolerance, Doudou Diène:

“[T]he threshold of the acts that are referred to in [ICCPR] article 20 is relatively high because they have to constitute advocacy of national, racial or religious hatred. Accordingly, the Special Rapporteur is of the opinion that expressions should only be prohibited under article 20 if they constitute incitement to imminent acts of violence or discrimination against a specific individual or group” [11] .

The purpose of Article 20 is to protect individuals from violence and not to protect the religion from violence [12] . Therefore, only expressions which would give rise to imminent violence, discrimination and hostility should be restricted. Religious defamation laws, if sufficiently narrowly drafted, may pass the tests of ICCPR Articles 19 and 20, but most of them do not. [13] As noted by the Special Rapporteur on Freedom of Religion or Belief:

[G]roups of atheists and non-theists have recently voiced their deep concerns about the present exercise to combat “defamation of religions” at the international level. These atheist and non-theist groups argue that the very concept of “defamation of religions” is flawed, since it is individuals – both believers and non-believers alike – who have rights, not religions.” [14]

Here again, the question of what is the threshold is difficult to ascertain. It would be reasonable to assume that ‘discrimination’ has the lowest threshold of these, and that “states must show that the harm of discrimination cannot be ameliorated by means other than the suppression of protected speech”. [15] The question of what will give rise to incitement of hostility and violence is harder to ascertain. Clarke suggests that “Where certain parts of the population have previously responded violently to perceived criticism … there will be a genuine threat of riots and violence”. [16] Nowak, on the other hand, argues that Nowak has argued, Article 20(2) “does not require States parties to prohibit advocacy of hatred in private that instigates non-violent acts of racial or religious discrimination” [17] .

The UN Resolutions on ‘Combating defamation of religions’ [18] which have been adopted since 2005, however, are hard to reconcile with Article 20(2) of ICCPR. Paragraph 10 and 14 of the Resolution reflect Articles 19(3) and 20 of ICCPR. However, the Resolutions replace the existing objective criterion, of limitations on speech where there is an intent to incite hatred or violence against religious believers, with a subjective criterion that considers whether the religion or its believers feel offended by the speech. Parts of the resolution were introduced at the behest of certain countries which use this to justify their harsh blasphemy laws [19] . In an attempt to protect the integrity of certain (and not necessarily all) religions, the Human Rights Council (and the General Assembly) has been trampling the freedom of expression. The Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance agrees with this view in stating that

“[T]he focus of the debate on racism and religion should be shifted away from defamation of religions to incitement to racial and religious hatred. … [W]hile defamation of religions is a sociological concept, incitement to racial and religious hatred is a legal concept that can be dealt with under international instruments; in the framework of human rights, incitement to racial and religious hatred is prohibited by the ICCPR, ICERD and the Durban Declaration and Programme of Action, and by many national constitutions.” [20]

Thus, pursuant to Article 20(2), a State law may prohibit propaganda of “religious hatred” only when it “constitutes incitement to discrimination, hostility or violence.”

2.2 Religious defamation laws – The interplay of Articles 19 and 20

States enacting religious defamation laws categorize it as their obligation under Article 20 of ICCPR. The fact that a restriction is claimed to be required under article 20 is of course relevant, but it would still have to fulfill the three-part test laid down in Article 19(3) [21] . The coherence between Articles 19 and 20 have been highlighted by academics as well as the Human Rights Committee. For instance, as Tarlach McGonagle writes:

“[I]t is rarely disputed that Articles 19 and 20, ICCPR, are closely related. Indeed, during the drafting of the ICCPR, the draft article that ultimately became Article 20 was realigned so that it would immediately follow Article 19, thereby emphasising the contiguity of the two articles. Indeed, one leading commentator has even referred to Article 20 as being practically a fourth paragraph to Article 19 and has to be read in close connection with the preceding article24″. It is also noteworthy that Article 20, unlike other substantive articles in the ICCPR, does not set out a right as such. Instead, it sets out further restrictions on other rights, most notably the right to freedom of expression.” [22]

Various Human Rights Committee views support this position. For instance, in Malcolm Ross v. Canada [23] , the Committee rejected Canada’s argument that a “[…] State party therefore cannot be in violation of articles 18 or 19 by taking measures to comply with article 20. It is submitted that freedom of religion and expression under the Covenant must be interpreted as not including the advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence” [24] . The Committee held that Article 20 was merely relevant but not overarching in such circumstances. It observed that the “restrictions on expression which may fall within the scope of article 20 must also be permissible under article 19(3), which lays down requirements for determining whether restrictions on expression are permissible” [25] .

The Human Rights Committee has confirmed this in its General Comment 11 where it stated that the required prohibitions in Article 20 “are fully compatible with the right of freedom of expression as contained in article 19, the exercise of which carries with it special duties and responsibilities”. [26] This reflects the conclusion that any law seeking to implement the provisions of Article 20(2) ICCPR must not overstep the limits on restrictions to freedom of expression set out in Article 19(3). The narrower and more taxing threshold of Article 20 should certainly not contradict the limitations of Article 19(3) [27] .

The main implication is that religious defamation laws have to fulfill the three-part test of Article 19(3). In addition to restricting freedom of expression only when it incites “discrimination, hostility or violence”, these laws must fulfill the following requirements:

Be provided for by law

Pursue one of the legitimate aims contained in Article 19(3). For this purpose, the aims contained in Article 19 should be considered as being exclusive, not permitting any aim other than those listed therein.

The restriction must be ‘necessary’ to attain one of these aims and “[t]he necessity for any restriction [on the right to freedom of expression] must be convincingly established.” [28]

3. Drafting of Religious defamation laws – Balancing Article 19 and Article 20

The need to balance rights and to prevent people from exercising their rights to the detriment of the rights of others is recognized in Article 5 of the ICCPR. This implies that there is no formal hierarchy among fundamental rights. The right to freedom of expression implies that it should be possible to debate and criticize, even harshly about various beliefs and opinions, including religious ones, as long as this does not amounts to advocacy inciting hostility, discrimination or violence [29] . Therefore restrictions on the right to freedom of expression must be “formulated in a way that makes clear that its sole purpose is to protect individuals holding specific beliefs or opinions, whether of a religious nature or not from hostility, discrimination or violence, rather than to protect belief systems, religions, or institutions as such from criticism” [30] .

The UN High Commissioner for Human Rights has underlined this problem stating that there is no common understanding as to the meaning of the term “defamation of religion,” and that the various State laws apply to conduct as varied as contempt, ridicule, outrage and disrespect, which could certainly intrude on freedom of expression [31] . These laws, in addition to fulfilling the requirements of Article 19(3) and the threshold of Article 20(2), have to be enforced equally to individuals practicing all religions and not selectively. Further it must be addressed to protecting individuals and not any particular religion, for doing so would be discriminatory. However, the absence of a framework to decide the threshold under Article 20(2) should not deter States from fulfilling their obligation to prevent the exercise of the right to freedom of expression from inciting discrimination, hostility or violence. In fulfilling this obligation, States should be guided by Article 20’s requirement of prohibiting ‘by law’, which is also a requirement under Article 19(3), and the due process guarantees which are reflected in such a requirement. Religious defamation laws will not pass the tests of Articles 18(3), 19(3) and 20 unless they establish a link between religious defamation and incitement to discrimination, hostility and violence [32] .

SELECT BIBLIOGRAPHY

BOOKS AND COMMENTARY

Catarina Krause and Martin Scheinin, ‘International Protection of Human Rights: A Textbook’, Finland, Abo Akademi (2009)

Karl Josef Partsch, “Freedom of Conscience and Expression, and Political Freedoms”, in Louis Henkin, Ed., ‘The International Bill of Rights: The Covenant on Civil and Political Rights’, New York, Columbia University Press (1981)

Manfred Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary, Kehl/Strasbourg/ Arlington, NP Engel Publisher (1993)

JOURNAL ARTICLES

D McGoldrick and T O’Donnell, ‘Hate-speech laws: consistency with national and international human rights law’, 18 Legal Studies 454 (1998).

Robert Post, ‘Religion and Freedom of Speech: Portraits of Muhammad’, 14.1 Constellations 83 (2007)

Ben Clarke, ‘Freedom of Speech and Criticism of Religion: What are the Limits?’ 14(2) Murdoch University E Law Journal 104 (2007)

WORKING AND CONFERENCE PAPERS

Human Rights First Working Paper on Incitement Laws and Religious Defamation Laws available at www.humanrightsfirst.org (last visited on April 2, 2010)

Submissions of Dr. Agnes Callamard (Executive Director, Article 19) and Ms. Nazila Ghanea (University of Oxford) in the Expert Meeting on the Links between Articles 19 and 20 of the ICCPR held under the auspices of the OHCHR in October 2008, Geneva, available at www.ohchr.org (last visited on April 2, 2010)

INTERNATIONAL AND REGIONAL CONVENTIONS

International Covenant on Civil and Political Rights, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976

European Convention on Human Rights, ETS 5/ 213 UNTS 221, entered into force on March 9, 1953

American Convention on Human Rights, OAS Treaty Series No. 36/1144 UNTS 123, entered into force on July 18, 1978

African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5, entered into force October 21, 1986

JURISPRUDENCE

Handyside v. United Kingdom, ECHR No. 5493/72

Faurisson v. France (550/1993), ICCPR, A/52/40 vol. II (8 November 1996)

Malcolm Ross v. Canada (736/1997), ICCPR, A/56/40 vol. II (18 October 2000) 69

The Sunday Times v. United Kingdom, 1 EHRR 737, April 26, 1976

Case of Otto-Preminger-Institut v. Austria, ECHR No. 13470/87

UNITED NATIONS DOCUMENTS

U.N. Resolution 60/150, Combating defamation of religions, January 20, 2006, U.N. Doc. A/RES/60/150 and subsequent U.N. Resolutions on the same topic (Resolution 61/164, February 21, 2007; Resolution 62/154, March 6, 2008)’ Resolution 63/171, Decmber 18, 2008)

Human Rights Committee, General Comment 10 on Article 19, U.N. Doc. HRI/GEN/1/Rev.1 at 11 (1994)

Human Rights Committee, General Comment 11 on Article 20, U.N. Doc. HRI/GEN/1/Rev.1 at 12 (1994)

Human Rights Committee, General Comment no. 22 on Article 18, UN doc. HRI/GEN/1/Rev.9 (vol. 1) (1993)

Report of the Special Rapporteur on freedom of religion or belief and the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, U.N. Doc. A/HRC/2/3 (September 20, 2006)

Interim Report of the Special Rapporteur on freedom of religion or belief, U.N. Doc. A/62/280 (August 20, 2007)

Report of UNHCHR on the Implementation of Human Rights Council Resolution 7/19 Entitled “Combating Defamation of Religions,” U.N. Doc. A/HRC/9/7 (September 12, 2008), para 67