Friday, August 19, 2022

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Article Index

3. The European Union

The EU has undertaken to develop shared values and legal regulation for speech among its member states. Under the EU's Charter of Fundamental Rights, [e]veryone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority EU member nations, however, have previously enacted laws limiting certain forms of hate speech, and, notwithstanding the language in its Charter of Fundamental Rights, the EU has adopted legislation which requires its members to criminalize publicly inciting to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic The EU addresses any tension between these provisions by asserting that [r]acism and xenophobia are direct violations of the principles of liberty, democracy, respect for human rights and fundamental freedoms and the rule of

Article 10 of the Council of Europe's Convention for the Protection of Human Rights and Fundamental Freedoms (commonly known as the European Convention on Human Rights) guarantees the right to freedom of expression ... includ[ing the] freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of The Convention allows certain limitations on expression, however, among them restrictions designed to preserve public safety, prevent disorder or crime, or protect others' reputations or rights. In addition, under the Convention, no person, group, or State may 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

The European Court of Human Rights (ECHR), which hears cases relating to claims that the Convention has been violated, has made a number of determinations about the extent to which member countries can limit expression. Although the ECHR has no set definition of hate speech, it has considered cases dealing with traditional hate speech categories ranging from racist speech to speech critical of religious and political groups to speech dealing with Holocaust complicity and denial. Its case law has established some basic principles and guidelines for the extent to which freedom of speech is protected in such potentially offensive cases.


According to the ECHR, political criticism generally deserves protection for its role in maintaining democracy, and the ECHR takes into account context and the actual likelihood of a threat or violence when judging a speech restriction. But its analysis also parallels Germany's in distinguishing between facts and opinion. In Garaudy v France, the ECHR turned down a Holocaust-denier's appeal claiming that French law violated his Article 10 right to expression. It noted that

[t]here can be no doubt that denying the reality of clearly established historical facts, such as the Holocaust, as the applicant does ... does not constitute historical research akin to a quest for the truth. The aim and the result of that approach are completely different, the real purpose being to rehabilitate the National-Socialist regime and, as a consequence, accuse the victims themselves of falsifying history. Denying crimes against humanity is therefore one of the most serious forms of racial defamation of Jews and of incitement to hatred of them.

Both the EU and the ECHR work from foundation documents asserting freedom of expression and speech. At the same time, however, both bodies are willing to curtail these freedoms when they cross a line into hatred or presenting topics in ways that might lead to hatred. As a group of states, then, Europe has embraced an approach to speech that privileges dignity and an agreed truth over debate when violence or offense may result.