Content Regulation / Censorship, Freedom of Association and Assembly / Protests, Hate Speech, Political Expression
Brandenburg v. Ohio
Closed Mixed Outcome
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The European Court of Human Rights held that an application to overturn a criminal conviction for public insult against a group of people because of their ethnicity was inadmissible. A French political leader had made comments at a political rally about the dangers of Roma’s immigration in France and was found guilty by the French courts and sentenced to pay a fine of 5,000 euros and damages of around 6,000 euros. The Court accepted that the analysis carried out by the national courts was based on relevant and sufficient grounds, and found that the criminal conviction was a necessary state interference in a democratic society, having regard to respect for the reputation and rights of others. The Court held that the comments fell outside the scope of speech protected by Article 10 of the European Convention of Human Rights and so the application was inadmissible.
On September 22, 2012, Jean-Marie Le Pen, founder and then honorary president of the Front National, a French political party, gave a speech at a summer school on the subject of immigration in France. On this occasion, he criticized the low rate of deportation of the Roma and mentioned that they “have never been able or willing to integrate into European societies, some of which they have lived alongside for five centuries, and who say: ‘We’re like birds, we fly naturally’”. In French, the last phrase was a play on word that used the verb “voler” which can be interpreted in English either as flying or stealing. In that context, there was an ambiguity as to whether it meant “to fly” in reference to the Roma as a population without borders or “to steal” in reference to a population of thieves.
A video of the speech was subsequently posted on the Front National’s website.
The Mouvement contre le racisme et pour l’amitié entre les peuples (MRAP – Movement against racism and for friendship between peoples) lodged a complaint, leading to charges against Le Pen of “public insult against a group of people on the grounds of their ethnicity” under articles 29 and 33 of the Law of the 29th July 1881 on press freedom.
In 2013, the Paris Correctional Court found Le Pen guilty and fined him 5,000 euros. Le Pen raised two main arguments in relation to his freedom of expression: that his freedom of political expression and the use of humor through wordplay shielded him from the offense, and that the meaning of the word “voler” was related to the Roma movement and not to their characteristics as thieves. He maintained that the comments in question did not contain any outrageous expression or any term of contempt or invective exceeding the limits of freedom of expression. The Court concluded that, based on the context and an objective analysis of the remarks, Le Pen was aware that he was using terms of contempt, invective, or outrageous expression. The Court held that although the right to humor can normally be used to remove the outrageous nature of the remarks, in this specific case, humour was not used to put distance with the remarks, and that combined with the subject of the speech (the dangers of immigration), Le Pen had an intent to stigmatize.
In 2014, the Paris Court of Appeal upheld the lower court’s decision, pointing out that the humor in this case did not make the comments a joke or satire, and that the remarks could only be understood in their outrageous sense: Roma are thieves. The Court of Appeal noted that it was only as an accomplice that Le Pen could be found guilty because in French press law, the publisher, the Front National, was the main author of the comments.
In 2016, the Court de Cassation upheld the decision on appeal, endorsing the analysis carried out by the Criminal Court and the Court of Appeal.
Le Pen appealed to the European Court of Human Rights. Article 10 of the European Convention on Human Rights protects the right to freedom of expression.
The Court delivered a unanimous decision. The central question for the Court’s determination was whether Le Pen’s criminal conviction infringed his right to freedom of expression under Article 10.
The Court applied the three-step test of whether the interference in the right was prescribed by law, whether it served a legitimate purpose, and whether the interference was necessary in a democratic society. The last step required the Court to ask whether the grounds invoked by the national authorities to justify the interference were “relevant and sufficient” and whether the measure was “proportionate to the legitimate aims pursued”. The Court noted that its role is only to review the national decisions and ascertain whether they were made reasonably and in good faith and referred to its case of Chauvy and others v. France, App. No. 64915/01 (2004) in discussing how to exercise that supervisory jurisdiction,
The Court accepted that there was an interference by the public authorities of Le Pen’s right, and that the interference was lawful and for the legitimate purpose of safeguarding the reputation and rights of others.
With reference to a previous case involving Le Pen, the Court stressed that “remarks capable of arousing a feeling of rejection and hostility towards a community fall outside the protection guaranteed by Article 10”. The Court reiterated what the national courts had said, that an analysis into the necessity of the interference in the right must be contextual and particularized. The Court noted that States have a fairly wide margin of appreciation when assessing the need for interference with freedom of expression.
The Court recognized the importance of freedom of expression in a political context, especially for comments made in the context of a debate of general interest relating to immigration policies which must be considered to benefit freedom of expression. But it also acknowledged the legitimate limitation of expression for the protection of the reputation and rights of others, especially in cases of racial discrimination, given the disadvantages caused to such groups. With reference to its case of Soulas v. France, the Court stated that the proportionality of the interference needed to be assessed in light of the sanctions imposed, and noted that Le Pen had been fined 5,000 euros, whereas the maximum penalty was 22,500 euros and six months’ imprisonment. Accordingly, the Court held that the state interference was proportionate.
The Court accepted the French courts’ analysis and that Le Pen had intended to stigmatize the Roma. Accordingly, the interference in Le Pen’s right was based on relevant and sufficient grounds and was necessary in a democratic society. It found that Le Pen’s application was manifestly ill-founded, and his comments fell outside of the protection of Article 10.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court balanced the right to freedom of expression with the rights of others and found that statements intended to incite hostility were not protected by 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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