Europe and free speech: A race to the bottom?

This is to affirm that freedom of expression must not surrender to religious feelings that in some instances cause extremists to believe murder is justified.

Unfortunately, however, there are significantly more negative developments than positive ones. In fact whether dealing with terrorism, extremism, racism, or privacy concerns, the European default solution seems to involve chipping away at freedom of expression.

Unlike Norway and Iceland, Denmark has decided to uphold its blasphemy ban, citing among other reasons fear of violent backlash from extremists at home and abroad. This is hardly the most heroic response considering that 14 February Copenhagen attacks were aimed specifically at a debate on blasphemy and a prominent “blasphemer”.

The attacks against Charlie Hebdo prompted the magazine’s managing editor to declare that it would no longer depict and publish the prophet Muhammed. While that decision is certainly understandable given the level of risk, this step would most likely never have been taken place had Charlie Hebdo not been forced to pay the ultimate price for its previous publicist’s courage.

As such, the French magazine has adopted the same editorial stance that just about every other major Western print media had already accepted prior to the attack; a stance where depictions of the Prophet form a red line not to be crossed out of fear of violent retaliation.

On that basis, one might ask whether the Kouachi brothers did not indeed fully achieve their goal by both “avenging” the prophet and forcing the hitherto provocative and fearless Charlie Hebdo to submit and change its editorial line in accordance with the Jihadist’s veto.

However it is not only islamists that seek to protect religion from offense. The Austrian prosecution service recently announced an investigation into whether Dutch politician Geert Wilders violated Austria’s law against denigration of religion and hate speech.

This action was made in response to a speech on Austrian soil made by Wilders in March. In it, as he has done so many times before, the prominent politician compared the Koran with Mein Kampf and, (ironically but characteristically for Wilder’s lack of principles), insisted that the former book be banned.

Hate speech and Holocaust denial

While a significant part of the European debate on free speech revolves around the issue of Islam and blasphemy, this is by no means the only area where free speech is undermined on the continent.

In Ukraine, which European politicians hope will form a democratic alternative to an increasingly authoritarian Russia, the government has not only banned Communist symbols and outlawed the denial of communist crimes, but has also prohibited a number of communist parties from participating in its upcoming local elections. This is hardly the hallmark of an emerging liberal democracy.

While David Cameron, on 7 January, wowed “never to give up free speech”, it has become clear that his government’s plan to tackle extremism promises just the opposite. Although details are few, Cameron and his Secretary of Home Affairs Theresa May have unveiled plans that would allow ministers to administratively subject non-violent extremists to censorship-like regimes. Such action would ban those individuals from speaking publicly and in the media.

The fear of terrorism has also seen other countries blur the line between free speech and the promotion of terrorism. In June, a notorious Danish islamist was sentenced to four years imprisonment for the “glorification” and “advancement of terrorism”.

Some of the reasons for his conviction even included the fact that he posted pictures of and verses from the Quran on Facebook. Clamping down on “glorification” or "apologie" of terrorism has also become the norm in France where dozens of persons were charged with this crime in the immediate aftermath of the Charlie Hebdo attack.

Britain’s former Prime Minister Tony Blair was recently appointed chairman of the ‘European Council for Tolerance and Reconciliation’. He has vowed to campaign extensively against resurging European antisemitism.

While antisemitism, just as terrorism, is a real problem, Blair’s strategy is built on the essentially illiberal idea of furthering existing bans against hate speech and criminalising Holocaust denial. If those are the policy recommendations of a former British prime minister, then who can blame the Ukrainians for following the same path?

Unfortunately, most of these measures are in line with case law from European courts, which attach very little weight to freedom of expression when the speech in question is deemed “gratuitously offensive” or “hateful”.

A race to the bottom

Just as the right to private life and data protection has been promoted at the expense of free speech by judges in Strasbourg and Luxembourg.

In June the European Court of Human Rights decided that a web portal could be held accountable for user comments if it doesn’t delete ”hate speech” promptly and by itself, thereby inviting online news outlets to adopt “pre-emptive” censorship or drop online comments altogether.

The European Court of Justice’s decision on the “right to be forgotten” has seen thousands of European citizens demand that links to unfavourable content deemed “irrelevant” be removed. As a consequence, links to news stories from mainstream media have recently disappeared online, with no publicity or clear criterion for the determination of continued relevance.

These non-exhaustive examples covering a wide range of areas demonstrate how the European approach to freedom of expression has created legal and cultural space for politicians and social movements where the banning of undesirable or disagreeable symbols and speech becomes a goal in itself.

A European race to the bottom for the protection of free speech.

Jacob Mchangama is the founder and executive director of Justitia, a Copenhagen-based think-tank focusing on human rights and the rule of law and the co-founder and co-director of The Freedom Rights Project @jmchangama.