This paper was originally published in Communications Law, The Journal of Computer, Media and Telecommunications Law 2019/2, Vol 24, 62-73 (Bloomsburry Professional, Oxford) and is reproduced with permission and thanks.
In early 2018, Judge Ganna Yudkivska, President of the Fourth Section of the European Courtof Human Rights, and judge elected in respect of Ukraine, joined a respectful, but strongly worded dissenting opinion, criticising the majority’s judgment in Sinkova v Ukraine. ((Sinkova v Ukraine (App no 39496) 27 February 2018.)) The Court in Sinkova, by a majority of four votes to three, found that an activist’s conviction, including a suspended three-year prison sentence, for staging a performance-art protest at a war memorial in central Kiev, did not violate the activist’s freedom of expression under Article 10 of the European Convention on Human Rights. ((Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221 (‘ECHR’). For a general introduction on the Court’s case law on Article 10 ECHR, see Dirk Voorhoof, ‘Freedom of Expression, Media and Journalism under the European Human Rights System: Characteristics, Developments, and Challenges,’ Peter Molnár (ed.), Free Speech and Censorship Around the Globe (Central European University Press 2015), 59-104. For an authoritative analysis of the European Court’s case law on the right to protest, see David Mead, The New Law of Peaceful Protest (Hart Publishing 2010); see also, Yaaser Vanderman, ‘The Right to Protest and Direct Action’ (2017) Judicial Review 338; and David Mead, ‘A Seven (or so) Year Hitch: How has the Coalition’s Pledge to Restore the Right to Non-Violent Protest Fared?’ (2018) 29 King’s Law Journal 242.)) The dissenting opinion ominously warned that the majority’s judgment gave rise to a ‘real risk of eroding the right of individuals to voice their opinions and protest through peaceful, albeit controversial, means’, pointing to ‘inconsistency’ with the Court’s case law, and a disregard for the principle that criminal penalties are likely to have a ‘chilling effect on satirical forms of expression relating to topical issues’. ((Sinkova, supra n 1 (Joint partly dissenting opinion of Judges Yudkivska, Motoc and Paczolay). ))
The finding of no violation of Article 10 by the Sinkova majority does indeed stand out, given that in the subsequent 12 months alone, the Court has delivered a series of judgments finding violations of Article 10 over convictions for engaging in expressive conduct, including: activists burning an effigy of the Spanish King, ((Stern Taulats and Roura Capellera v Spain (App nos 51168/15 and 51186/15) 13 March 2018.)) Pussy Riot performing from the altar of a Moscow cathedral, ((Mariya Alekhina and Others v Russia (App no 38004/14) 17 July 2018. For a discussion of the domestic court trial, and a life-history interview with one of the applicants, see Alexander Kondakov, ‘The Feminist Citizen- Subject: It’s not About Choice, It’s About Changing It All’ (2017) 25 Feminist Legal Studies 47. See also Sofia Galani, ‘Case Comment: Pussy Riot’ (2018) European Human Rights Law Review 625.)) and an activist erecting large wooden genitalia outside a prosecutor’s office. ((Mătăsaru v the Republic of Moldova (App no 69714/16 and 71685/16) 15 January 2019.)) The purpose of this article is to discuss the Court’s recent case law on expressive conduct under Article 10, and in particular to assess in what circumstances, if any, domestic courts may impose prison sentences, even if suspended, on activists engaging in peaceful, but provocative and offensive expression.
Mead has noted that historically, the European Court only afforded ‘limited protection’ to ‘direct action or any form of protest that causes more than merely incidental obstruction’. ((David Mead, The New Law of Peaceful Protest (Hart Publishing 2010), 61. See, for example, Chorherr v. Austria (App no 13308/97) 25 August 1993 (no violation of Article 10 where applicant was arrested for wearing a rucksack which hoisted a large banner half a meter above his head, reading ‘Austria does not need interceptor fighter planes’, at an official military ceremony). More recently, the Court has been taking a contrast approach: see, for example, Açik v Turkey (Appl.no. 31451/03) 13 January 2009 (violation of Article 10 where students were arrested for shouting slogans and raising banners at the opening ceremony of Istanbul University.))
Similarly, the international human rights organisation Article 19 has also noted that the international and regional jurisprudence on peaceful direct action is ‘limited’. ((Article 19, The Right to Protest Principles:Background Paper (2016), 20. <https://www.article19.org/data/files/medialibrary/38581/Protest-Background-paper-Final-April-2016.pdf>)) And yet, we live in an ‘age of protest’, ((Ibid, 4.)) and as Clooney and Webb have commented, many governments are using public order laws, such as hooliganism laws, to criminalise expression ‘that is insulting to the ruling authorities’. ((Amal Clooney and Philippa Webb, ‘The Right to Insult in International Law’ (2017) 48 Columbia Human Rights Law Review 1, 10.)) Indeed, UN Special Rapporteur on the rights to freedom of peaceful assembly and of association recently reported that in several European countries, there is ‘politically motivated repression of activists’, ((Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, A/HRC/38/34, 26 July 2018,  < http://undocs.org/A/HRC/38/34>. See also, Maina Kiai, United Nations Special Rapporteur on the rights to freedom of peaceful assembly and of association, The right to freedom of peaceful assembly (2017) http://freeassembly.net/wp-content/uploads/2018/01/FOAA-Online-The-Right-to-Freedom-of-Peaceful-Assembly-update-Nov-2017.pdf. )) ‘repression of peaceful protestors in the context of occupation’, (( Ibid, .)) and the use of ‘public order laws to suppress freedom of peaceful assembly’. ((Ibid, .)) This was also echoed in the 2019 report of the UN Special Rapporteur on freedom of religion or belief, that public order laws were being used to ‘restrict the freedom to express views deemed offensive to religious or belief communities’. ((Report of the Special Rapporteur on freedom of religion or belief, A/HRC/40/58, 5 March 2019,  <https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session40/Documents/A_HRC_40_58.docx>))
In contrast, there has been considerable case law and scholarship in the US on expressive conduct under the First Amendment, ((See, eg, Chris Chung, ‘Baking a Cake: How to Draw the Line between Protected Expressive Conduct and Something You Do’ (2018) 32 Notre Dame Journal of Law, Ethics & Public Policy 377; Daniel J. Hay, ‘Baptizing O’Brien: Towards Intermediate Protection of Religiously Motivated Expressive Conduct’ (2015) 68 Vanderbilt Law Review 177; Kristie LaSalle, ‘The Other 99% of the Expressive Conduct Doctrine: The Occupy Wall Street Movement and the Importance of Recognizing the Contribution of Conduct to Speech’ (2012) Texas Journal on Civil Liberties & Civil Rights 1.)) where the Supreme Court has recognised a ‘wide array of conduct that can qualify as expressive’, including burning the American flag, wearing a military uniform, wearing a black armband, conducting a silent sit-in, and refusing to salute the American flag. ((See Masterpiece Cakeshop, Ltd v Colorado Civil Rights Commission, 584 US (2018) (Thomas J, concurring, 4.), and the case law cited therein.)) In the case of Snyder v Phelps et al, the Supreme Court found that peaceful picketing near a military funeral with signs strongly opposing homosexuality was protected under the First Amendment, although the conduct of the protesters and the content of their signs was considered as being hurtful, outrageous and inflicting emotional distress amongst the participants of the funeral and the family of the deceased soldier. ((Snyder v. Phelps et al, 562 US 443 (2011).)) The Supreme Court reiterated that ‘[s]peech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and – as it did here – inflict great pain’, but ‘[a]s a Nation we have chosen a different course – to protect even hurtful speech on public issues to ensure that we do not stifle public debate’. ((Ibid, 459-460.))
This article will analyse how the European Court of Human Rights, has recently ((This analysis focusses on some recent judgments. Compare also with Fratanoló v Hungary (App no 29459/10) 3 November 2011; Fáber v. Hungary (App no 40721/08) 24 July 2012; and Schwabe and MG v Germany (App nos 8080/08 and 8577/08) 1 December 2011.)) been confronting similar issues, and how it is developing its expressive conduct jurisprudence under the right to freedom of expression as guaranteed by Article 10 ECHR.