Content Regulation / Censorship, Hate Speech, National Security
Government of Kazakhstan v. Respublika
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The Moscow City Court upheld the decisions of two lower courts, which held that a humorous, digitally manipulated image of Jesus Christ was offensive to the religious feelings of Christians and contained elements of extremism. The case arose after Russia’s state-controlled media and information watchdog, the Roskomnadzor, sent a warning to an online portal, SIBFM, giving it notice that an image hosted on its site had to be taken down within 10 days because it incited extremism. The image in question was of three men in a typical Russian household setting with their faces being replaced by cut-outs of the faces of Jesus Christ, Vladimir Putin, and Alexander Pushkin.
On December 24, 2014, SIBFM, an online news portal for the Novosibirsk region, published an article entitled “Novosibirsk civil society assembled against the monopoly of the Orthodox Church on morality and spirituality.” The article contained an image referred to as “Burn, burn, my candle.” The image placed cut-outs of the faces of Jesus Christ, Vladimir Putin, and Alexander Pushkin over bodies of three men in a typical Russian household setting.
On March 27, 2015, Roskomnadzor, Russia’s state-controlled media and information watchdog, sent a warning to SIBFM stating that under Article 8 of the Federal Law 114 “On prevention of extremism” the image had to be taken down within 10 days because it incited extremism. SIBFM contested the warning.
On September 21, 2015, the first instance Tagansk Regional Court dismissed SIMBFM’s complaint and declared that “[t]he image is nothing but a mockery of the sacred, and thus a mockery of the Christian faith and the feelings of every Christian.” SIBMFM appealed, arguing that there was no evidence that the image had been used by anyone for extremist purposes.
On March 2, 2016, the Judicial Collegiate for Administrative Cases of Moscow City Courts upheld the lower instance decision. The appellate body cited the Russian Supreme Court’s Resolution No 16 “On the application of the ‘Law on Mass Media’ by courts”, which stated that courts should take into account the whole context in which the information was published, including the purpose, the genre and the style of an article, and if the article could be considered a political opinion or a discussion of a public interest matter. It then proceeded to explain that:
SIBMF appealed to the Moscow City Court.
The Moscow City Court (Moscow Court) upheld the decisions of the first instance court and the Judicial Collegiate. First, the Moscow Court outlined relevant national laws. It declared that Article 28 of the Russian Constitution guaranteed the right to freedom of religion and conscience to everyone. It also reiterated that Article 29 of the Russian Constitution prohibited any propaganda or agitation inciting social, racial, national or religious hatred, or propaganda of social, racial, national, religious or linguistic supremacy.
The Court then listed definitions of extremist activities pursuant to the Federal Law No. 114-FZ “On Combatting Extremism”. These were namely;
The Court then reviewed the decisions of the first two tribunals. The Moscow Court noted that the warning complied with Article 8 of the Federal Law of the Russian Federation on Countering Extremist Activity. The Moscow Court agreed that the caricature portrayal of Jesus Christ mocked Christianity, and offended the feelings of believers. It highlighted that the lower tribunals were correct in reaching their decisions based on the opinions of experts, and stated that the Moscow Court had no jurisdiction to overturn the lower tribunals’ findings of fact.
The Moscow Court also reviewed the rights guaranteed under the European Convention on Human Rights (ECHR). First, it looked to Article 9 of the ECHR to conclude that limitations on freedom of religion must be prescribed by law and necessary in a democratic society to achieve a legitimate purpose. It was also articulated that Article 10 of the ECHR permitted restrictions or limitations on the right to freedom of expression for the purpose of protecting, among other things, national security and morality. The Moscow Court observed that the Russian Constitution reflected the language of the ECHR and also prohibited any propaganda or incitement of social, racial, national, or religious hatred. The Moscow Court reasoned that the obligation to protect public order ‘is incompatible with the implementation of activities bearing the signs of extremism’. On this basis, the Court upheld the lower courts’ decisions.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision is worrisome because it broadly declares that any caricature of Jesus Christ offends the feelings of Christians and thus could be considered extremist. Such a sweeping generalization has broad implications on freedom of expression, particularly artistic expression and satire. In its decision, the Moscow City Court failed to properly consider whether the warning against SIBFM was necessary in a democratic society, and did not analyse whether the measure was proportionate. Furthermore, the Moscow City Court failed to balance the right to freedom of expression against the right to freedom of religion. Instead, the Moscow Court relied on the presumption that the image posed a risk to public order, without giving any weight to the contribution such an image makes to public debates of general interest.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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