Content Regulation / Censorship
Loughran v. Century Newspapers Ltd
Closed Contracts Expression
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The European Court of Human Rights rejected a case filed by a German blogger who argued that his conviction for posting a picture of Heinrich Himmler wearing a swastika armband in a blog post violated his right to freedom of expression. The German courts convicted the blogger for having used symbols of an unconstitutional organization. In their judgments, they found that the blogger had not clearly distanced himself from Nazi ideology in the posts. The blogger maintained that his blog post was intended to protest against the treatment of his daughter by the employment office, and to contribute to the debate on discrimination and institutional racism. The Court found that the national courts had provided relevant and sufficient reasons for interfering with Mr. Nix’s right to freedom of expression. Moreover, it held that German history was a weighty factor when considering whether convictions for using Nazi symbols is “necessary in a democratic society”.
The case concerned Hans Bukhard Nix, a blogger based in Germany. He blogs on matters concerning economics, politics, and society. In February 2014, he had been convicted for using symbols of unconstitutional organizations for having published a picture of Angela Merkel in Nazi uniform.
In March 2014, his daughter, who was an eighteen-year-old German-Nepalese national, was asked by the employment office to fill out a questionnaire to indicate whether she would opt to continue schooling after the summer or whether she would commence vocational training or tertiary studies. She was also asked to provide a copy of her latest school report. The letter also stated that, should she wish to pursue vocational training, she should register with the employment office.
Between March and May 2014, Mr. Nix published six posts on his blog about the interaction between the employment office and his daughter. These posts reproduced correspondence that Mr. Nix had with the employment office, which made it clear that Mr. Nix took issue with the employment office’s interference with his daughter’s education. At least two of the posts alluded to Mr. Nix’s view that “the employment office intended to push his daughter, in a racist and discriminatory manner, into becoming part of the cheap labour force.” [para. 6] None of the blog posts contained clearly visible links to the others. They also did not refer to the fact that Mr. Nix was on social welfare benefits, or that his daughter was a German-Nepalese national.
The post relevant to the present case was page in length, and contained a picture of the former SS chief Heinrich Himmler. Heinrich Himmler was shown in SS uniform, with the badge of the Nazi party (including a swastika) on his front pocket and a swastika armband. Next to the picture, Mr. Nix posted a quote from Himmler concerning the schooling of children in Eastern Europe during the occupation of Nazi Germany, the statement was to the effect that parents who wanted to offer their children good education had to send a request to the SS and the police leadership. Underneath the picture and quotation, Mr. Nix named the employee of the employment office and called into question their desire to counsel his daughter. He mentioned that he had previously asked for support from the employment office but was ignored. Parts of the post were written in vulgar and offensive language.
Around the time of these events, the media was reporting the complaints of parents who received social welfare benefits that their children were being unduly pushed towards vocational training by the employment office and that children with a migrant background were being discriminated against.
In January 2015, the Munich District Court convicted Mr Nix for having used symbols of unconstitutional organizations in the above-mentioned post because he had displayed a picture of former SS chief Heinrich Himmler in SS uniform. He was also convicted of libel for his statement calling the employment officer “slimy staff member”. He received a cumulative sentence of five months’ imprisonment which was suspended. On appeal, the Munich Regional Court upheld the conviction, but it reduced the cumulative sentence to 140 day-fines of EUR 10 each. The Munich District Court reasoned that Mr. Nix “used the picture as an eye-catching device, which was exactly what the provision sanctioning the use of symbols of unconstitutional organisations was intended to prevent, as it was meant to pre-empt anyone becoming used to certain symbols by banning them from all means of communication”. [para. 17] The Munich Regional Court did, however, narrow its findings by excluding the swastika on Himmler’s badge from the conviction for using symbols of unconstitutional organizations, since an objective observer could not see it as a swastika without additional knowledge.
Mr. Nix appealed the decision and, while awaiting judgment, the prosecution authorities discontinued the libel proceedings. The Court of Appeal upheld Mr. Nix’s conviction for using symbols of unconstitutional organisations (in so far as they related to the swastika on Himmler’s armband) and confirmed the sentence of 120 day-fines of EUR 10 each. The Court of Appeal reasoned that he had not clearly distanced himself from Nazi ideology in his blog post. In December 2015, the Federal Constitutional Court refused to admit his constitutional complaint.
Mr. Nix brought the case before the European Court of Human Rights complaining that his criminal conviction for the offence of using symbols of unconstitutional organizations, namely the picture of Himmler in SS uniform wearing a swastika armband, violated his right to freedom of expression under Article 10 of the European Convention on Human Rights. He argued that the requirement under the relevant criminal law that he clearly distance himself from Nazi ideology in order to avoid criminal liability constituted an interference with freedom of expression that was unnecessary in a democratic society. In this regard, he argued that a milder but similar measure would be to sanction only such use that constituted propaganda for the relevant organization or ideology. He further argued that the domestic courts had not taken all of the circumstances of the blog post into account, isolated the contents of the blog post from its context, and failed to take into account the fact that the post was contributing to a discussion of general public interest about discrimination and institutional racism.
The European Court of Human Rights (Court) found unanimously that the application was inadmissible because it was manifestly ill-founded. The Court began by noting that the right to freedom of expression, as guaranteed by Article 10 of the European Convention of Human Rights (Convention), applied to the Internet as a means of communication and that the publication of photographs on an Internet website was also protected under the right.
The Court first acknowledged that Mr Nix’s conviction for having displayed a picture of Himmler with a swastika armband in his blog post amounted to an interference with his right to freedom of expression. Then, it went on to analyse whether this interference was prescribed by law, in pursuit of a legitimate aim, and necessary in a democratic society. On the first two parts of this test, the Court noted that Mr. Nix’s conviction had a legal basis (Article 86a of the Criminal Code) and that it pursued the legitimate aim of the prevention of disorder. It noted that the relevant law that was imposed was aimed at preventing the revival of prohibited organizations or the unconstitutional ideas pursued by them, the maintenance of political peace, and the banning of symbols of unconstitutional organizations in German political life.
As for whether the interference was “necessary in a democratic society”, the Court pointed out that it had always been very sensitive to the historical context of Member States when reviewing whether there exists a pressing social need for an interference with rights under the Convention. The Court went on to say that, “[i]n the light of their historical role and experience, States which have experienced the Nazi horrors may be regarded as having a special moral responsibility to distance themselves from the mass atrocities perpetrated by the Nazis”. [para. 47] Furthermore, it considered that the “legislature’s choice to criminally sanction the use of Nazi symbols, to ban the use of such symbols from German political life, to maintain political peace (also taking into account the perception of foreign observers), and to prevent the revival of Nazism must be seen against this background.” [para. 47]
The Court noted that, under German law, no criminal liability arose where the use of symbols of unconstitutional organisations was meant to serve civil education, to combat unconstitutional movements, to promote art or science, research or teaching, to report on current or historical events, or serve similar purposes. Moreover, the Court observed that the German Courts restricted the scope of these exceptions to uses that did not contravene the provision’s purpose, including where it was obvious and clear that the person using the symbol is opposed to the ideology behind it. The Court considered that “exemption from criminal liability where opposition to the ideology embodied by the used symbol is ‘obvious and clear’ constitutes an important safeguard for the right to freedom of expression.” [para. 48]
Turning to the facts of the present case, the Court determined that the symbol used in the blog post could not have had any other meaning than that of Nazi ideology. The Court also noted that Mr. Nix must have been aware of the relevant law, not least because he had been convicted of the same offence for publishing photographs of Angela Merkel in Nazi uniform.
The Court also accepted that Mr. Nix did not intend to spread totalitarian propaganda, to incite violence, or to utter hate speech, and that the expression had not resulted in intimidation. It also noted that, by posting the blog post, he may have intended to contribute to a debate of general interest on discrimination by the employment office. With regard to whether the domestic courts should have examined the other blog posts of Mr. Nix on the issue, the Court noted that the relevant post did not contain any reference or visible link to the other posts. Therefore, it was not immediately understandable for a reader of the post that it was (meant to be) part of a series of posts that may have been intended to contribute to a public debate. Under these circumstances, the Court was unwilling to criticize the domestic courts for looking at the post in isolation.
The Court also took into account that the post did not mention the daughter’s ethnicity, nor did it talk about discrimination or racism. Furthermore, there was no link drawn in the text between the conduct of the staff member at the employment office and the policy of the Nazi party. In light of this, the Court considered that the domestic courts could not be reproached for not finding any connection with the text and the policies which the Nazi symbols stood for, nor could it be reproached for concluding that Mr. Nix had used the picture as an “eye-catching device”. It added that this “gratuitous use of symbols was exactly what the provision sanctioning the use of symbols of unconstitutional organisations was intended to prevent, as it was meant to pre-empt anyone becoming used to certain symbols by banning them from all means of communication”. [para. 54] The Court held it had no reasons to depart from the assessment of the domestic courts that Mr. Nix had not clearly and obviously rejected Nazi ideology in his blog post. It also noted that the sentence had been reduced from a prison sentence to a fine.
The Court concluded by reiterating that the historical experience of Germany was a weighty factor to be taken into account when considering cases involving Nazi symbols, and whether there exists a pressing social need for interfering with an individual’s right to freedom of expression in this context. The Court concluded that the domestic courts had adduced relevant and sufficient reasons and did not overstep their margin of appreciation in the present case. Therefore, the interference was found to be proportionate to the legitimate aim pursued and “necessary in a democratic society”.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This decision contracts expression by upholding the conviction of an individual for publishing a Nazi symbol even though the publication did not amount to incitement and did not intimidate anyone. In doing so, the European Court of Human Rights seemed to endorse the German law that required an individual to clearly distance themselves from Nazi ideology when they publish a Nazi symbol (even where that publication is not endorsing, or in favour of, Nazi ideology). The European Court of Human Rights was careful to respect the specific historical experience of countries like Germany that had suffered from the horrors of the Nazi regime. It was this historical context that was instrumental in the European Court of Human Rights’ decision to dismiss the case, finding no violation of the right to freedom of expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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