Handyside vs United Kingdom

INTRODUCTION

In Handyside v. United Kingdom, it was held that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress. It is guaranteed by the Universal Declaration of Human Rights, and by international conventions, such as the European Convention on Human Rights.

Freedom of expression is revered in liberal, democratic societies for a variety of reasons; it enables the discovery of truth, it is crucial to the working of a democratic society and it is an aspect of human autonomy. However, it is not an absolute right; rather, it is subject to restrictions in specific circumstances.

On the other hand, the potential of offence related to religious belief is immense, particularly in a plural society. The notion of symbols and figures as ‘sacred’ in religion makes them special objects of veneration, and acts which treat them disrespectfully are especially offensive to the sensibilities of religious followers.

However, this essay takes the stance that as with all human rights norms, the interpretation and application at local, national and international levels varies; indeed, even at a local level there can be profound differences of opinion. This is particularly true in the context of this essay, as (due to state sovereignty) states parties are afforded a wide ‘margin of appreciation’ in determining judgements involving religious sensitivity. This results in a non-uniform application of international human rights, and in some instances protectoral favour toward majority religions.

This essay is divided into two main sections – section one discusses laws governing the rights to freedom of artistic expression, and the protection afforded to the sensibilities of religious believers. Provisions contained in international human rights law, case law rulings, and examples of the UK’s domestic legislation borne from international human rights provisions are discussed.

The second section briefly presents two highly controversial cases – which aid to illustrate the issues discussed in section one. The two cases discussed are Salman Rushdie’s The Satanic Verses, and the furore in response to Geert Wilders short film Fitna.

FREEDOM OF EXPRESSION

THE UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948)

The Universal Declaration of Human Rights (Universal Declaration hereinafter) was the first human rights instrument to recognise the principle of freedom of expression. Art. 19 relates to freedom of expression, and provides that:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

EUROPEAN CONVENTION ON HUMAN RIGHTS (1950)

Art. 10(1) of the European Convention echoes Art. 19 of the Universal Declaration, however, it adds that “[T]his article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.” For example, in Müller v. Switzerland, the European Court acknowledged that Art. 10(1) clearly included freedom of artistic expression, notably, the right to take part in the public exchange of cultural and social information and ideas of all kind. Nonetheless, it also stressed that artists who promote their work are not immune from the possibility of restrictions.

Art.10 (2) of the European Convention also provides for circumstances, in which restrictions to freedom of expression may be upheld:

“… subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Whilst this extensive list is one of the most obvious features of the European Convention provision, Barendt proffers that it is not intended to remove the rights granted under Art. 10(1); rather, the balancing starts with a presupposition in favour of freedom of expression, and the exceptions to which must be narrowly interpreted. Additionally, the European Court indicated that Art. 10(2) did not grant states parties unlimited power of appreciation; the Court would make the final judgment on whether a restriction was permissible. This is illustrated by the requirement that any violation to Art. 10(1) is deemed ‘necessary in a democratic society’. Therefore, the Court must be satisfied that there is a ‘pressing social need’ for the restriction, that the restriction in question corresponds to that need, and that it is a strictly proportionate response to the legitimate aim pursued.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (1966)

The ICCPR is a descendent of the Universal Declaration. Art. 19(2) of the ICCPR provides that everyone has the “freedom to seek, receive and impart information and ideas of all kinds… orally, in writing or in print, in the form of art, or through any other media of his choice”. However, once again these provisions are balanced against competing rights, including ‘national security’, ‘public order’, ‘public health’ and ‘morals’.

An example of limitations imposed in order to protect ‘national security’, are two principal offences under the Terrorism Act 2006 (UK), which provides that the encouragement and glorification of terrorism constitute criminal acts. These offences are intended to stamp out extreme speech by Imams/Muslim leaders encouraging or celebrating atrocities such as 9/11 or the London bombings. However, Barendt argues that they infringe freedom of speech with little justification.

Indeed, Chase deduces that the language of Art. 19 allows space for expression which does not conform to a state or a community’s norms – otherwise the right would become redundant. However, limitation in accordance to ‘morals’ – which is perhaps most relevant in the sphere of this essay – presents room for differing interpretation by state parties; indeed, the Siracusa Principles recognize that ‘public morality varies over time and from one culture to another’. Therefore, a margin of discretion is afforded to states parties; nevertheless, limitation on grounds of morals must demonstrate that ‘the limitation in question is essential to the maintenance of respect for fundamental values of the community’.

FREEDOM OF RELIGION

Significantly, in addition to recognizing the principle of freedom of expression – exercised by artists who vilify or criticise religion – international human rights law also recognises the right to freedom of religion, under which religious groups argue the state has a duty to protect their faith from being vilified. For example, Art. 9(1) of the European Convention stipulates that “[E]veryone has the right to freedom of thought, conscience and religion …”. Additionally, freedom of religion is guaranteed under Art. 18 of the Universal Declaration, and Art. 18 of the ICCPR.

The right to freedom of religion constitutes one of the foundations of a ‘democratic society’ within the paradigm of human rights instruments; moreover, the ICCPR Committee has noted that it is also a protected right for non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. However, the scope of Art. 9 of the European Convention does not extend to all deeply held beliefs, as illustrated by Pretty v. United Kingdom where the Court observed that not all convictions or opinions constituted beliefs. Furthermore, the applicant’s claims did not involve a manifestation of religion or belief, ‘in worship, teaching, practice and observance’ – as laid out in Art. 9(1) of the European Convention.

Conversely, as Cumper proffers these two principles, as incorporated into international human rights law, appear contradictory in nature. However, Jones argues that the right to hold and pursue one’s own belief, does not, by design impose any limit upon what others may say about, or do with the beliefs individuals hold. For example, in Otto-Preminger Institut v. Austria the European Court held that members of a religious group “… cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs…”.

Furthermore, in Handyside v. United Kingdom, the European Court held that broadmindness, tolerance and pluralism are traits of a democratic society, and that accordingly Art. 10(2) covers ‘information’ or ‘ideas’ that shocks, offends, or disturbs the state or any sector of the population. Certainly, in democratic, pluralistic societies striking a balance between various religious groups within the same population can prove problematic. In Kokkinakis v Greece, it was held that:

“In democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected”.

BLASPHEMY LAW

This seems to legitimise domestic state laws, which aim to protect religious belief, or more accurately, the sensibilities of religious believers. Indeed, some legal systems attempt to regulate speech or other actions to achieve the former. For example, English common law developed an offence of blasphemous libel, which dates back to the seventeenth century. However, in its modern form the law seeks to protect the sensibilities of believers rather than the religion itself. Nevertheless, the scope of blasphemy as covered under the common law offence has sparked controversy as it only protects Christianity, which, has arguably resulted in discrimination as it affords protection to the majority faith, but none to Muslims, Buddhists and Hindus. Moreover, the organisation Liberty regards the UK’s blasphemy law as largely obsolete due to the last successful prosecution dating back to the late 1970s.

Arguably, blasphemy laws conflict with the freedom of expression guaranteed to artists, the international human rights instruments have granted states parties with a generous ‘margin of appreciation’ in passing and applying such laws. Indeed, in Handyside v. United Kingdom, it was held that the state, as opposed to the international judge, is regarded as better placed to assess the measures required to protect morals. Therefore, it is in the discretion of the state to decide whether to operate blasphemy laws, and to choose which religions to protect. However, by extending it to all citizens’, complications such as what legally constitutes a religion would come to the fore, therefore, repealing the legislation seems the only viable option.

INCITEMENT TO RELIGIOUS HATRED

Although the Jewish and Sikh religions are not covered by the law of blasphemy, members of their community may be protected by the law prohibiting incitement to religious hatred – which was introduced by amending the provisions to Part 3 of the Public Order Act 1986 (UK). However, the Racial and Religious Hatred Act 2006 (UK) creates offences involving stirring up hatred against persons defined by reference to religious belief (or lack of). Such acts can be via written material; publishing or distributing written material; public performance of a play; distributing, showing or playing a recording, and broadcasting or including programme in programme service.

The Religious and Racial Hatred Act extends upon the blasphemy law by offering protection to all faiths, however, one of the key criticisms is the scope of the terminology ‘religious hatred’. Under this law, criticism of a certain religion or its tenets does not constitute an offence per se; rather, it must be provided that such criticisms are made via means of threatening words or behaviour and with the intention of stirring up religious hatred. However, the key issue is differentiating between religious hatred and criticisms of religion, as protected under free speech provisions. The Explanatory Notes provides that:

“[T]he offences of stirring up religious hatred are not intended to limit or restrict discussion, criticism or expressions of antipathy, dislike, ridicule or insult or abuse of particular religions or belief systems or lack of religion…”.

Therefore, the above statement adheres to the protection afforded to freedom of expression as laid out in the human rights conventions (discussed above). Thus, criminalising incitement to religious hatred proves problematic, as there are no common standards to assess whether speech directed at a particular religious group is abusive or insulting. Indeed, wider inferences remain such as the classic dichotomy between speech and action – however, this is beyond the scope of this essay.

Furthermore, the interpretation given to ‘religious belief, or lack of religious belief’ within the milieu of the Act is a broad one, and includes not only the widely recognised religions in the UK, but also new and emerging religions. Nevertheless, despite the interpretive material provided by the Explanatory Notes, it is clear that the courts have discretion in determining which groups will be granted protection under the legislation. Therefore, determining popular culture from religion may prove problematic. For example, in the 2001 census 390,000 British people indicated their allegiance to the ‘Jedi Knight’ faith. Furthermore, fears have been expressed that sinister cults will be protected under the new offences, such as Satanists and pagans. Finally, there are fears that the legislation will curtail freedom of expression, illustrated by Salam Rushdie who claimed that the measures would ‘sacrifice freedom of speech in order to placate Muslim voters’.

The next two sections discuss two high-profile cases, which aim to illustrate both sides of the debate.

THE RUSHDIE AFFAIR

Salman Rushdie published The Satanic Verses in 1988, which is partially inspired by the life of the Prophet Muhammad. The publication of Salman Rushdie’s book led to worldwide protests.

Indeed, all Islamic countries banned the novel as it offended their fundamental beliefs. Additionally, worldwide protests were staged, resulting in five people being killed during a protest in Islamabad. Pivotally, Imam Khomeni, the spiritual leader of Iran, issued a Fatwa (decree) for the execution of Salman Rushdie, which was met with bewilderment and disgust in Western democracies.

In England, Muslims from Bradford staged protests, and burnt copies of the novel, demanding an apology from Rushdie; however, they did not get one, and proceeded to demand that the publisher Penguin withdrew the book. The Archbishop of Canterbury at the time (Dr. Robert Runcie) condemned the novel, However, the predominant perspective, (particularly among secularists), defended the author’s right to freedoms of speech and thought. Muslims consider secularists as spiritually barren. Secularists view Muslims as intolerant, self-righteous, behind the times, and having little or no respect for universal human rights that guarantee individuals the freedom of literary and artistic expression.

A group of Muslim leaders in the UK took legal action against Salman Rushdie and the publishers, under Blasphemy laws. However, the judgement favoured Rushdie and his publishers, as blasphemy laws only protect the Church of England. The Chief Rabbi of England argued at the time, that there must be laws that protect other religions against any behaviour which was “likely to incite revulsion or violence, by holding religious beliefs to scurrilous contempt …”.

GEERT WILDERS AFFAIR

Geert Wilders is a Dutch parliamentarian and leader of the Freedom Party (PVV). Fitna (2008) is a short film by Wilders, which shows selected quotes from the Quran, interspersed with media clips and newspaper cuttings, showing or describing acts of violence by Muslims. Consequently, the film insinuates that Islam encourages – amongst other things – acts of terrorism, anti-Semitism, violence against women, violence and subjugation of non-believers.

Some of the content in Fitna has been protested by agencies such as the Dutch anti-discrimination group, Nederland Bekent Kleur (The Netherlands Shows Its Colors). On August 15, 2007, a representative of the Prosecutors’ Office in Amsterdam declared that dozens of reports against Wilders had been filed and they were taken seriously.

. Lord Pearson of Rannoch and Baroness Cox of Queensbury, members of the House of Lords invited Wilders to a 12 February 2009 showing of Fitna in the Palace of Westminster. Two days before the showing, Home Secretary Jacqui Smith banned Wilders from entering the territory of the United Kingdom, labelling him an ‘undesirable person’. Entry was denied under EU law, and reportedly supported under regulation 19 of the Immigration (European Economic Area) Regulations 2006, an EU law that allows a member state to refuse entry to individuals if they are regarded as constituting a threat to public policy, security or health. A Home Office spokesperson elaborated that:

“The Government opposes extremism in all its forms … and that was the driving force behind tighter rules on exclusions for unacceptable behaviour that the Home Secretary announced in October last year”.

According to Wilders himself, it is not himself who is on trial, but his ‘freedom of speech’ and that at stake are traditional European freedoms – in an interview with Israel National Radio, Wilders held that he was:

“[F]ighting for one thing: the preservation of our culture, which is based on Christianity, Judaism and humanism – and not on Islam… While Islamization of our society grows, the political elite looks in the other direction and ignores the real problem, namely, the impending loss of our freedom. I am fighting not against Moslems, but against the influx of a totalitarian ideology called Islam.”

Wilders called Prime Minister Gordon Brown “[t]he biggest coward in Europe” and remarked, “[O]f course I will come back”. Wilders had previously visited the United Kingdom in December 2008 without any issues. Lord Pearson did not support Wilders’ decision to defy the government. However, in response to the ban, both Pearson and Cox accused the government of ‘appeasing’ militant Islam.

However, Ban Ki-moon announced that free speech should respect religious sensibilities. When the Dutch right-wing politician Geert Wilders released his provocative film ‘Fitna’, the secretary-general praised the Netherlands government for seeking to ban it, describing the film as ‘offensively anti-Islamic’ and declaring that ‘The right of free expression is not at stake here’.

Recently, Mr Wilders went on trial on politically loaded charges of inciting hatred and discrimination toward Islam. The forthcoming outcome of the trial will reveal just how far Europe’s multicultural enforcers are willing to go to silence free speech in order to appease the continent’s increasingly restive and ‘radicalized’ Muslim populations. In his remarks from the trial, Wilders offers a powerful statement about the stakes involved:

“Wilders: Mister Speaker, judges of the court: … Freedom was never the property of a small group, but was always the heritage of us all … It is not only a right, but also the duty of free people to speak against every ideology that threatens freedom. Thomas Jefferson, the third President of the United States was right: The price of freedom is eternal vigilance … This trial is obviously about the freedom of speech. … We are all blessed by it nothing less than freedom itself”.

Notably, in accordance to Art. 71 of the Dutch Constitution, Wilders has immunity for anything he says in the Dutch parliament. However, Wilders enjoys no protection for anti-Islamic comments made in the media. This became clear in 2007-2010, when protests against alleged insults and incitement to hatred resulted in the (now pending) criminal prosecution of Wilders by the district attorney in Amsterdam.

CONCLUSION

The balance between religious sensitivity and freedom of expression afforded to artists  has sparked controversy throughout history. Harmonising diametrically opposed views – commonplace in the age of pluralistic societies – continues to prove challenging in present times.

In an attempt to mediate between religious sensitivity, and artists who may present their religions in an unwholesome light, international human rights law has guaranteed freedom of religion, in addition to freedom of expression. However, the two concepts do not appear fully compatible, and in certain circumstances, states parties must make a choice as to which holds precedent. It seems in most cases that religious sensibilities are left wanting in the face of freedom of expression. However, this is not always the case; although, there is no clear pattern in court rulings (nor in the legal instruments) regarding what constitutes ‘blasphemy’, or more importantly, when expression becomes something more sinister.

Whilst it is acknowledged that religion is a very personal and important aspect in many individual’s lives – in a plural society, religious believers must acknowledge that many people do not share their views, which gives them little cause to refrain from ‘blasphemy’. Yet, by only choosing to protect some religions by law, the situation is inflamed even further.

Finally, in terms of legal protection of the religious sensibilities ‘the strength of their own belief is the best armour against mockers and blasphemers’.