Religious Sensitivities in Pluralist Societies & Freedom of Expression:

1. Religious Sensitivities in Pluralist Societies & Freedom of Expression: Conceptualizing the Limits of Extreme Speech Jeroen Temperman, Erasmus University Rotterdam

2. Counter-Defamation Approach Seeks to shift the emphasis from protection of the rights of individuals to protection of religions per se; Introduces grounds for limitation of human rights that are not –and should not become- recognized by international human rights law. Jeroen Temperman, Erasmus University Rotterdam

3. European Court HR & Religious Defamation Three objectionable trends: Development of abstract notion of a ‘right not to be insulted in one’s religious feelings’ ECtHR fails to realize that there is no conflict between FoE & FoRB in abstracto: actual (rare) clashes need to be substantiated; proper, critical balance must be struck ECtHR sanctions discriminatory laws Jeroen Temperman, Erasmus University Rotterdam

4. (i) A ‘right not to be insulted in one’s religious feelings’? “the right of citizens not to be offended in their religious feelings by publications”(Gay News) “the respect for the religious feelings of believers as guaranteed in Article 9 [of the European Convention on Human Rights]” (Otto Preminger) “the right of citizens not to be insulted in their religious feelings” (Otto Preminger) “the right of citizens not to be insulted in their religious feelings” (Wingrove) “[need to] to ensure respect for the religious doctrines and beliefs of others” (Murphy) Jeroen Temperman, Erasmus University Rotterdam

5. (ii) conflict between FoE & FoRB in abstracto? E.g.: İ.A. v. Turkey: Freedom of expression (publisher) restricted on the basis of existing ground for limitation (“right of others to respect for their freedom of thought, conscience and religion”); however, no inquiry whatsoever into the Q as to whether the two rights indeed conflict in this particular case Balancing rights without a legal necessity to do so might actually lead to infringements Jeroen Temperman, Erasmus University Rotterdam

6. (iii) ECtHR sanctions discriminatory laws E.g. Wingrove & Gay News: “It is true that the English law of blasphemy only extends to the Christian faith. … The uncontested fact that the law of blasphemy does not treat on an equal footing the different religions practised in the United Kingdom does not detract from the legitimacy of the aim pursued in the present context” Jeroen Temperman, Erasmus University Rotterdam

7. Way Forward: Re-Conceptualizing the Abuse of Right Doctrine No equivalent of Art. 20(2) ICCPR in the European Convention Article 17 ECHR: Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction on any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention. Caveats/suggestions: This approach does not cover all hate speech cases Abuse of rights concern to be incorporated into consideration of the merits, not as admissibility issue

8. Article 20(2) International Covenant on Civil and Political Rights “Any advocacy of…religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” Jeroen Temperman, Erasmus University Rotterdam

9. Human Rights Committee & Article 20(2) ICCPR Decisive factors: the actual speech (not subjective reaction by targeted group): element of incitement or not? the reaction or potential reaction by third persons vis-à-vis the group targeted by the speech/publication: fundamental rights of others threatened or not? E.g. Human Rights Committee, Malcolm Ross v. Canada (2000)

10. Religious Hate Speech Legislation (Religious) Hate Speech Bills, e.g. UK, Australia, Switzerland Generic Penal Code provisions on incitement, e.g. Brazil, Canada, Croatia, Denmark, Finland, Germany, India, Netherlands, New Zealand, Serbia, Sweden ‘Denial laws’; e.g. Austria, Belgium, France De facto application of defamation laws to counter religious hate speech (e.g. Iceland, Norway): important role judge Purely a matter of jurisprudence: liberal democracies with no hate speech legislation (e.g. USA): ‘clear and present danger’, ‘imminent action’ doctrine Regulations tackling specific forms of religious hate speech

11. Way forward Further conceptualization of the state duty (art. 20(2) ICCPR) to prohibit religious hate speech; more particularly: To conceptualize the prohibition of ‘religious hate speech’ as a notion of international law; To identify legal benchmarks and factors that help determine the phenomenon religious hate speech; To identify state obligations emanating from the internationally codified religious hate speech prohibition; To consider safeguards against governmental abuse of hate speech legislation. Jeroen Temperman, Erasmus University Rotterdam

12. Conceptualization of ‘Religion Hate Speech’ Prohibition Scope: Hate speech vis-à-vis a specific religious group; Religion-inspired hate speech. Jeroen Temperman, Erasmus University Rotterdam

13. Draft-GC on Art. 19 & 20 ICCPR State obligations under 20(2): Legislative action required Ex post facto punishment and/or early warning system? Definition of key terms: Advocacy: “By advocacy is meant public forms of expression that are intended to elicit action or response” Hatred: “By hatred is meant intense emotions of opprobrium, enmity and detestation towards a target group” Incitement: “Incitement refers to the need for the advocacy to be likely to trigger imminent acts of discrimination, hostility or violence. It would be sufficient that the incitement relate to any one of the three outcomes: discrimination, hostility or violence”. Relation to Art. 19:, Restrictions based on 20(2) require also to comply with system of 19(3) Relation to religious defamation/blasphemy bills: To be repealed (para. 48)

14. Example (Geert Wilders case): Art. 137d Dutch Penal Code “Any person who publicly, orally or in writing or image, incites to hatred or discrimination against persons…on account of their religion or belief…may be punished with imprisonment of maximally one year or a third category fine.”