Content Regulation / Censorship, Hate Speech
R. v. Zundel
Closed Mixed Outcome
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The European Court of Human Rights held that a clear and vehement attack on a particular group would suffice to constitute a violation of Article 17 of the European Convention on Human Rights. Norwood, a member of an extreme right-wing political party, placed a poster on his apartment window that called for the removal of all Muslims from Britain. The police removed the poster and Norwood was charged with an aggravated offense under section 5 of the Public Order Act of 1986. The court reasoned that Article 10 on freedom of expression cannot be invoked against Article 17, which states that no person has the right to engage in any activity with the aim of destroying the rights and freedoms of someone else. Specifically, the poster constituted a vehement attack against a religious group, implying that every Muslim was guilty of a grave act of terrorism, which is incompatile with the values proclaimed by the European Convention on Human Rights.
The applicant was a member of the British National Party, an extreme right-wing political party. Between November 2001 and 9 January 2002, the applicant displayed in the window of his first-floor flat a large poster (supplied by the BNP). The poster depicted the Twin Towers in flame, the words “Islam out of Britain – Protect the British People”, and a symbol of a crescent and star in a prohibition sign.
Following a complaint from a member of the public, the police removed the poster. Despite contacting the applicant and inviting him to attend an interview, the applicant refused to attend.
As such, the applicant was charged with an aggravated offense under section 5 of the Public Order Act 1986 of displaying a message with hostility towards a racial or religious group. Following the conviction, the applicant appealed to the High Court, which dismissed his appeal on 3 July 2003. It was held that the poster was “a public expression of attack on all Muslims in this country, urging all who might read it that followers of the Islamic religion here should be removed from it and warning that their presence here was a threat or a danger to the British people.”
The applicant appealed to the European Court of Human Rights (“ECtHR”) claiming a violation of Article 10 ECHR.
The applicant submitted that free speech includes not only the inoffensive but also the irritating, contentious, eccentric, heretical, unwelcome and provocative, provided that it does not tend to provoke violence. It was also submitted that the action criticism of a religion should not to be equated with an attack upon its followers. As the applicant lives in a rural area not greatly afflicted by racial or religious tension, and there was no evidence that a single Muslim had seen the poster.
In reply, the Court referred to Article 17 of the Convention which states:
“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”
The general purpose of Article 17 is to prevent individuals or groups with totalitarian aims from exploiting in their own interests the principles enunciated by the Convention. The ECtHR, found in particular that the freedom of expression guaranteed under Article 10 of the Convention may not be invoked in a sense contrary to Article 17.
Applying this section to the case, the poster in question contained a photograph of the Twin Towers in flame, the words “Islam out of Britain – Protect the British People” and a symbol of a crescent and star in a prohibition sign. The assessment made by the domestic courts was that the words and the images amounted to an attack on all Muslims in the UK. The ECtHR largely agreed with the assessment, and stated that such a general, vehement attack against a religious group, implying the group as a whole was guilty of a grave act of terrorism, is incompatible with the values proclaimed and guaranteed by the Convention, notably tolerance, social peace and non-discrimination. As such, the poster in the applicant’s window constituted an act within the meaning of Article 17 ECHR, which did not enjoy the protection of Articles 10 or 14 ECHR.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
Article 17 is a fundamental right and cannot be ignored. It is a right which gives balance to the more specific rights; an overarching right so that the other rights cannot be invoked for the purposes of self-gain. As such, the existence of Article 17 would provide for the inadmissibility of the Article 10 invocation.
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