Freedom of expression

Freedom of expression is an idiosyncratic and eccentric right as it overlaps with others’ rights and it is very controversial for several reasons. Based upon the legal authorities, a rigorous attempt is made through this piece of work to unleash the knots made about this right and to elucidate the obscurity as to whether freedom of expression allows blasphemous material related to any religion be legally made published. Time would fail me where I to attempt to cover all the legal landscape on this topic. The simple answer to this question, however, is that freedom of expression does not permit blasphemy of the Prophet (SAW) or of any religion.

Freedom of expression is articulated in Article 10 of European Convention of Human Rights (ECHR) as a right to hold an opinion and to receive and impart information and idea without interference by public authority. This right, in essence, carries with it some duties and responsibilities, which includes formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interest 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 disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Lord Goff of Chieveley in A-G v Guardian Newspapers (No 2) [1990] 1 AC 109 at 283, [1988] 3 All ER 545 at 659 found that there is no inconsistency between freedom of speech under common law and Article 10 of ECHR as both of them contain restrictions, and conditions. In other words, both common law and Article 10 of ECHR are unanimous on the point that freedom of speech is a qualified right and not an absolute one. It follows that this right has inherently some limitations and restrictions with it that allows the state to interfere in its exercise. For the same reason, the myth that the state is unable to interfere in the exercise of freedom of expression is entirely refutable and baseless.

It is true that freedom of expression protects not only information and ideas which are favourable but also those which would offend, shock, or disturb the state or any particular sector or group; (Oberschlick v Austria (No.2) (1997) 25 EHRR 357). Nevertheless, if exercise of such right falls under restrictions enumerated by Article 10 of ECHR, then, the state may interfere in such exercise.

For instance, there is another right under Article 9 of ECHR which protects ‘beliefs’ named as freedom of religion. Sometimes freedom of expression which is essentially protection of ‘opinion’ and ‘ideas’ overlaps with freedom of Religion. If whilst exercising freedom of expression anyone becomes gratuitously offensive, blasphemous and incites disrespect and hatred for others belief/religion, the state has a positive obligation to ensure that religious right is protected. Thus, in case of freedom of expression, if it encroaches on the right of freedom of religion, the right of religion prevails as it overlaps with right of others.

Both common law and Article 10 of ECHR are unanimous on the point that freedom of speech is a qualified right and not an absolute one. It follows that this right has inherently some limitations and restrictions with it that allows the state to interfere in its exercise

It is pertinent to mention here that the boundaries on freedom of expression have been drawn in the Article 10 itself through terms “for protection of rights for others”, “reputation of others” and “ necessary in the democratic society”. “Protections of rights of others” includes “ right of religion” as such freedom of religion can elevate upon right of expression.

In Otto Preminger Institut v Austria, it was held that banning of films which would potentially be offensive to Christians was justified as pursuing the legitimate aim of “protecting the religious rights of others” guaranteed by the ECHR. It follows that blasphemous material to some religion can be justifiably banned as it interferes with rights of others i.e. protection of religion.

Similarly, in Otto E F A Remer v Germany, a conviction for incitement to race hatred by publishing materials denying gassing of Jews in Nazi Germany was held to be an interference with the applicant’s rights under Article 10 of the convention, but was necessary in a democratic society for the protection of the rights and reputations of others. It implies that any freedom of expression on cost of racial hatred and damaging reputation of any particular religion or followers could be interfered being necessary in a democratic society for protection of others’ rights and reputation.

A distinction must be drawn in context of freedom of expression between reporting facts, and making tawdry allegations about an individual’s private life. (see Mosley v United Kingdom (2011) 31 BHRC 409 at [114], [2012] 1 FCR 99). Freedom of expression is narrowly interpreted in this kind of situation as per Ferdinand v MGN Ltd[2011] EWHC 2454 (QB) at [62], 175 CL & J 599, [2011] All ER (D) 04 (Oct). A balance is struck between private life of an individual under Article 8 and freedom of expression under Article 10 of ECHR. Again for the same reason that Article 10 freedom of expression can be lawfully interfered for “protection of rights of others” as “respect for private life” is a right of others under Article 8 of ECHR.

InKokkinakis v Greece(1993) 17 EHRR 397, ECtHR, at [33] a Jehovah’s Witness was arrested over 60 times for violating Greek anti-proselytising laws, and the European Court of Human Rights allowed Greece to stifle proselytising against the Greek Orthodox Church because ‘in democratic societies, in which several religions coexist within a society, it may be necessary to place restrictions on freedom of expression in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected’. It thus appears that freedom of expression was restricted for broader interest of coexistence of different beliefs in a democratic society.

Moreover, Article 17 of ECHR makes it express, clear and obvious that no article of ECHR should be abused. This happens where an individual relies upon a human right to undermine other human rights. For instance, an individual relies upon Article 10 freedom of expression in order to undermines others right of private life or right of religion. Such abuse of Article 10 of ECHR is not permitted in pursuance of Article 17 of ECHR. Therefore, as a matter of law, no one can blaspheme any religious leader raising the slogan of freedom of expression as that would be an abuse of the Article 10 of ECHR.

In light of above, it can be construed comfortably that the law on freedom of expression, despite with all its fundamental importance, can be interfered justifiably if such exercise falls under restrictions articulated in Article 10 of ECHR. Accordingly, no one has right to blaspheme any leader of any religion on the name of freedom of expression as that is not only restricted under Article 10 but also it would amount to abuse of the Article 10, which is forbidden in pursuance of Article 17 of ECHR.

The author is a freelance writer

Published in Daily Times, February 22nd 2019.

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