Content Regulation / Censorship, Hate Speech, Political Expression
Gündüz v. Turkey
Closed Contracts Expression
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The United Nations Human Rights Committee (UNHRC) held that the statements made by a French professor that argued against the existence of gas chambers in Nazi death camps constituted hate speech. Robert Faurisson, a French author and professor of literature at Sorbonne University, doubted the existence of gas chambers for extermination purposes at Auschwitz and in other Nazi concentration camps during World War II. Faurisson contested the 1990 Gayssot Act, which made it an offense to contest the existence of the category of crimes against humanity, by claiming that it restricted his right to freedom of expression. The UNHRC upheld the Gayssot Act because it intended to serve the struggle against racism and anti-Semitism, which the committee argued is a legitimate purpose to restrict the right to freedom of expression.
Aware of the historical significance of the Holocaust, the applicant sought proof of the methods of killings, in particular killings by gas asphyxiation. While he did not contest the use of gas for purposes of disinfection, he doubted the existence of gas chambers for extermination purposes at Auschwitz and in other Nazi concentration camps. His opinions were rejected by numerous academic journals.
On 13 July 1990, the French legislature passed the “Gayssot Act,” which amends the law on the Freedom of the Press of 1881 by adding an that makes it an offense to contest the existence of the category of crimes against humanity as defined in the London Charter of 8 August 1945, on the basis of which Nazi leaders were tried and convicted by the International Military Tribunal at Nuremberg in 1945-1946.
Applicant contested the Act as an impermissible restriction on his freedom of expression.
In the examination of credits by the Commission, the HRC found that “Any restriction on the right to freedom of expression must cumulatively meet the following conditions: it must be provided by law, it must address one of the aims set out in paragraph 3 (a) and (b) of Article 19, and must be necessary to achieve a legitimate purpose.” (Para 9.4)
Though the applicant contested the Gayssot Act, it was deemed that the Act was sufficient. Therefore the it was Prescribed by Law. (Para 9.5)
With regard to paragraph 3(a) and (b) of Article 19, General Comment 10 stated that it may relate to the interests of other persons or to those of the community as a whole. Since the statements made by the author, read in their full context, were of a nature as to raise or strengthen anti-semitic feelings, the restriction served the respect of the Jewish community to live free from fear of an atmosphere of anti-semitism. The Committee therefore concludes that the restriction of the author’s freedom of expression was permissible under article 19, paragraph 3 (a), of the Covenant. (Para 9.6)
Lastly the Committee needs to consider whether the restriction of the author’s freedom of expression was necessary to achieve a legitimate purpose. The Committee noted the State party’s argument contending that the introduction of the Gayssot Act was intended to serve the struggle against racism and anti-semitism. It also noted the statement of a member of the French Government, the then Minister of Justice, which characterized the denial of the existence of the Holocaust as the principal vehicle for anti-semitism. In the absence in the material before it of any argument undermining the validity of the State party’s position as to the necessity of the restriction, the Committee is satisfied that the restriction of the applicant’s freedom of expression was necessary within the meaning of article 19, paragraph 3, of the Covenant. (Para 9.7)
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The statements made were of a nature that could raise or strengthen anti-Semitic feeling. The restriction was therefore necessary to respect the right of the Jewish Community to live free from fear of anti-Semitism. Accordingly, the restriction was permissible under Article 19(3). The restriction was also necessary to serve the struggle against racism since holocaust denial was one of the principle contemporary vehicles for anti-Semitism.
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