Digital Rights, Hate Speech, Privacy, Data Protection and Retention
The Gambia v. Facebook
Closed Expands Expression
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The Constitutional Court of Bosnia and Herzegovina (BH) found that judgments of lower courts which held the appellant guilty of the crime of “inciting national, racial or religious hatred, discord, or hostility” for a post on Facebook amounted to a violation of his right to freedom of expression. In support of the national soccer team’s eligibility to play in the World Cup, Midhat Velagić had posted a picture depicting the famous Brazilian statue Christ the Redeemer with two dragons flying towards it and the BH flag in the background with the comment “Let’s go, tear it up.” The lower courts found the post publicly mocked the religious symbol and hence provoked religious hatred and intolerance among Roman Catholics living in BH. On appeal the appellant claimed that the lower courts failed to examine the whole context of the case. He argued that the first-instance courts did not explain why his Facebook post of the edited picture of a famous statue could be understood only as an intentional commission of the criminal offense. The Constitutional Court reasoned that there was no evidence that the Facebook post amounted to the incitement of hatred towards Roman Catholics, since the famous statue is not only the Christian symbol, but the symbol of Rio de Janeiro and Brazil as well.
This case is a mixture of football, hate speech, and ethnic and religious tensions in Bosnia and Herzegovina (BH). It concerns the possible violation of freedom of expression by imposing a criminal sanction for incitement of hatred. The summer of 2016 was unique for BH’s sports history – it was the first time that the national football team participated in the World Cup. The cup was held in Brazil. During the qualifications for the Cup finals in 2015, just hours before the second game of the BH team, which was decisive for qualifying for the Cup finals, Mr. Midhat Velagić, the accused person (the appellant) posted on his Facebook profile a picture he had found on the Internet. The photograph depicted a famous statue – Christ the Redeemer with two dragons flying towards the statue. The dragons’ jaws were wide open and the BH flag covered the background. The appellant put the comment with the picture: “Let’s go, tear it up” (idemo, trgajte). The local online portal (Livno portal) received the picture (and the comment) via email and posted it 15 days after the initial appellant’s post. Also, the portal noted in their post that the author had been a police officer and commented: “Who protects us, a police officer disseminates religious hate on Facebook”. Even though the portal did not mention the appellant’s identity, there had been plenty of negative comments and some of them revealed the appellant’s identity. Afterward, several portals shared the Livno portal’s post.
The prosecutor charged the appellant with the crime of Inciting National, Racial or Religious Hatred, Discord, or Hostility (Art. 162 (2) Criminal Code of Federation of BH) since the statue is a Christian symbol and dragons were attacking Jesus with their open mouths. The photograph was considered to be offensive towards Croats (an ethnic group) living in BH since they are Catholics.
The appellant defended that he had made the post in sports jargon, that it was support for the BH national team and that he had no other intention. He also stated that he had not noticed if the dragons had their mouths open nor whether they were attacking Jesus, nor had he known that it was Jesus (the appellant is Muslim). He said he had seen the image as sporty and claimed that dragons are symbols of the BH national team. Nevertheless, the Livno Municipal Court found the appellant guilty and he was sentenced to one-year’s imprisonment suspended for two years. The Court explained that the appellant had been aware of his actions and publicly had provoked religious hatred and intolerance towards Croats as the members of the Roman Catholic religious group by mocking religious (Christian) symbols. It continued by explaining that the statue of Jesus Christ in Rio de Janeiro had been “a symbol of Christianity in Brazil […] Jesus Christ is a symbol of Christianity, the founder of Christianity and a divine person”[para. 8]. It pointed out that the appellant had publicly mocked the religious symbol, and had provoked religious hatred and intolerance among Roman Catholics living in BH, with the controversial photograph “in which a dragon attacked the statue of Jesus Christ with open mouth and the inscription ‘Let’s go, tear it up’“. Thus, the Court concluded that the defendant’s argument had been “illogical, unconvincing and, apparently, given to avoid criminal liability” [para. 7]. The appellant appealed, but the Livno District Court upheld the judgment. After exhaustion of all remedies, the appellant filed the appellation (a constitutional complaint) to the Constitutional Court of Bosnia and Herzegovina (CCBH).
The Constitutional Court of Bosnia and Herzegovina (CCBH) ruled in favor of the appellant. It found that the interference with the right to freedom of expression was prescribed by law and pursued a legitimate interest [para. 26-29], but it was not necessary in a democratic society.
The appellant argued that he had not breached the law by publishing the image, which had not been edited by him, but by others. The famous statue was the symbol of Rio de Janeiro and Brazil, and the Facebook post had been the sign of support for the national football team. Also, members of the national team are called “dragons”. None of these circumstances were examined by the lower courts. Thus, there was violation of appellant’s freedom of expression.
The lower courts and the prosecutor briefly reiterated their previous arguments and asked the CCBH to find the appellation unsubstantiated.
Assessing the case, the CCBH relied on the ECtHR’s case-law, especially the case of Savva Terentyev v Russia, App. no. 10692/09 (2018) (§ 34). The ECtHR quoted the Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, that had emphasized that “any contextual assessment must include consideration of various factors, including the existence of patterns of tension between religious or racial communities, discrimination against the targeted group, the tone, and content of the speech, the person inciting hatred and the means of disseminating the expression of hate. For example, a statement released by an individual to a small and restricted group of Facebook users does not carry the same weight as a statement published on a mainstream website”. The Special Rapporteur concluded that states had been required by law to prohibit “any promotion of national, racial or religious hatred that constitutes incitement to discrimination, hostility or hatred, but that there is no requirement that such expression necessarily be criminalized […] only serious and extreme examples of incitement to hatred […] should be criminalized” [para. 33].
The Court was very careful in assessing whether the appellant’s post could incite hatred. Specifically, the CCBH concluded that, prima facie, the Facebook post was neutral and it could not conclude that the photograph is such as to incite religious hatred or an attack on religion. Nevertheless, even such neutral emanations of expression can amount to inciting hatred in a relevant context namely, (quoted ECtHR, Sekmadienis Ltd. v. Lithuania, App. n. (2018), § 78) [para. 35]. Still, the lower-instance courts did not provide any arguments of such context, meaning that they failed to state (reasonable) reasons for the appellant’s conviction [para. 36]. There was no contextual analysis, as recommended by the Special Rapporteur and required by the ECtHR.
The crucial shortcomings of the lower-instance courts’ decisions are as follows:
The CCBH considered “that the regular courts did not even try to achieve a fair balance between the protection of religious rights on the one hand and the protection of the appellant’s right to freedom of expression on the other, since the courts’ vague and inadequate explanations of their conclusions gave absolute primacy to the protection of religious sentiments, without regard to interference with the appellant’s freedom of expression” [para. 39].
The CCBH quashed the appealed judgment, did not award the appellant with monetary relief, but ordered the Livno District Court to render a new decision in accordance with Art 10 of ECHR and Art II/3.h) of BH Constitution.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This is the first case before CCBH on alleged Facebook hate speech in which there was a violation of freedom of expression. It shows that contextual analysis is crucial in deciding whether there has been incitement of religious or ethnic hatred, just like in other cases of potential violation of freedom of expression. Unfortunately, the lower-instance courts do not show the required level of understanding of the importance of context for cases of freedom of expression. One element is never enough.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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