February 14th marked the first anniversary of the deadly attack against a free speech debate in Copenhagen, which left one person dead. This individual was killed by an Islamist seemingly intent on killing as many participants as possible, including the Swedish artist Lars Vilks, whose artwork includes a depiction of the prophet Mohammed as a “roundabout dog.” He now lives with round-the-clock security.

Yet rather than strengthening the freedom that was attacked on 14 February 2015, subsequent developments have put freedom of expression under further strain.

Authorities have cracked down on the online “glorification of terrorism”, and have convicted several on such a charge (disproportionately affecting Danish Muslims). Moreover, the previous government decided not to repeal Denmark’s blasphemy law citing the need to prevent the burning of “holy books”, after an expert criminal law council deemed such an action punishable by law. This despite the fact that no one has been charged for blasphemy in more than 45 years (the same government rejected a proposal criminalizing the burning of the Danish flag citing freedom of expression).

Even more disturbing are signs that Danish police and courts have expanded Denmark’s hate speech ban to now include harsh criticism of religion. Blasphemy is covered by article 140 of the Danish penal code, which punishes anyone who publicly “ridicules or insults the dogmas or worship of any lawfully existing religious community in this country.”

No one has been charged since 1971 and the last conviction was in 1946. While the ban on blasphemy remains dormant, Denmark’s ban on “hate speech” is actively enforced. Section 266b of the criminal code criminalizes anyone

who, publicly or with the intention of wider dissemination, makes a statement or imparts other information by which a group of people are threatened, insulted or degraded on account of their race, colour, national or ethnic origin, religion, or sexual inclination.

While the blasphemy ban protects religious dogmas, ridicule, or insults (and thereby indirectly the religious feelings of believers),the hate speech ban protects certain groups- including adherents of religions – from degrading or insulting expressions. As such, these provisions clearly differ. However, two recent developments have severely blurred the lines.

In December 2015 a man uploaded a short clip on Facebook in which he videotaped himself burning a copy of the Koran. The clip was accompanied by the following status update, “Think of your neighbours, it stinks when it burns.” In February 2016 the police preliminarily charged him with violating section 266b. It is difficult to imagine an act more insulting to a religious dogma than burning its sacred book, and his actions were undoubtedly extremely offensive and hurtful to many Muslims. However, desecrating a religious book does not constitute an attack on Muslims as a group. If a charge were to be brought, the proper legal basis would have been the blasphemy ban. This would also have been more logic since the very reason the government decided not to repeal section 140 was to counter the burning of holy books.

However, “reviving” the blasphemy ban would likely have resulted in massive backlash in the public. Furthermore, in 1997 a Danish artist burned a copy of the Bible on a TV news show broadcast by the publicly funded Danish Broadcasting Corporation. The artist was never charged for blasphemy (or hate speech). The decision to preliminarily charge the Koran burner thus seems to indicate not only a lower protection for freedom of expression in general, but also an expansion of section 266b to cover what has previously been understood to constitute blasphemy.

This instance of “scope-creep” seemed to be confirmed by a decision of 11 February 2016 court ruling by the District Court of Elsinore, where a Danish citizen was convicted for violating section 266b. In the fall of 2013 he had made the following comment on a Facebook thread discussing the takeover of a local tenants’ association by members of the islamist organization Hizb-ut-Tahrir:

The ideology of Islam is as abominable, atrocious, oppressive and as misanthropic as Nazism. The massive immigration of Islamists into Denmark is the most destructive thing to happen to Danish society in recent history.

The District Court of Elsinore found that

[T]he statements that the defendant has made should be seen in the societal and historical context of the fall of 2013, and in this context the court views the statements about ‘the ideology of Islam’ as pertaining to Islam generally and not only the extreme part of Islam. In this regard, the court has also emphasized that the quoted statements were written on 29 November 2013 at 17.13 and that at 17.27 on the same day — as pointed out by the defense — the defendant wrote in the same thread that “Islam wants to abuse democracy in order to get rid of democracy. 

On that basis, the court found that such statements “as a whole” constituted “generalizing claims that are insulting and degrading towards the adherents of Islam.” The court explicitly rejected the defendant’s claim that his remarks were solely aimed at the extreme elements of Islam rather than Islam as a religion and at Islamists rather than Muslims as a group. However, whether the defendant’s disparaging remarks were aimed against Islam as such or only that religion’s extremist interpretation really should not matter. Section 266b does not protect religious doctrines or religious feelings, but expressions aimed at religious believers as a group. Several people have been convicted for accusing Muslims of being rapists, terrorists etc., and whether one is in favour of section 266b or not, those are the kinds of hateful statements aimed at a particular group that this provision is supposed to criminalize.

By equating degrading and insulting comments aimed at Islam, with anti-Muslim hate speech, the Court in Elsinore has in fact expanded the Danish hate speech ban to cover blasphemy. This marks the clearest departure in some 70 years during which pure criticism of religion, no matter how harsh, was thought to be protected by freedom of expression. Because the defendant was merely fined some 300 dollars, he will need special permission to appeal, increasing the likelihood that the decision will create precedent and encourage further prosecutions of criticism of religion.

However, this ruling is not only relevant for Denmark. The conflation of blasphemy and hate speech goes to the heart of the debate at the UN between (primarily) democracies on the one hand and Muslim states of the Organization of Islamic Cooperation on the other. In 2011 the annual and highly divisive OIC resolutions on “Defamation of Religion” (an attempt to create a global blasphemy ban under international human rights law) were ended by the passing of Resolution 16/18 at the Human Rights Council. The resolution is essentially a compromise brokered by the United States and the OIC and protects individuals, rather than religions, from religious discrimination and intolerance, as well as promoting “open, constructive and respectful debate.” Yet, OIC member states have since attempted to interpret the obligation to prohibit certain forms of hate speech in Article 20 (2) of the ICCPR, so broad as to include criticism and mockery of religion. At the Human Rights Council’s 22nd Session in 2013, Pakistan’s representative made the following statement on behalf of the OIC:

Negative stereotyping or defamation of religions is a contemporary manifestation of religious hatred, discrimination and xenophobia. While the freedom of expression is sacrosanct, it must not be exploited to incite hatred against any religion.

In May 2015 at the OIC’s 42^nd session of the Council of Foreign Ministers in Kuwait, a resolution was passed expressing

the need to follow a priority-level common policy aimed at banning the defamation of Islam under the pretext of freedom of expression, particularly through the media outlets and the internet.

And during Denmark’s recent Universal Periodic Review at the Human Rights Council numerous OIC states demanded tougher action against “islamophobia” and anti-muslim hate speech.

Pakistan recommended that

rampant hate speech on the social media should be monitored and addressed, especially that is addressed at Muslims and refugees in public and political debates and manifests in islamophobia; … The Government should raise awareness in public, regarding the limits and responsibility of freedom of expression, in accordance with international standards urging to take concrete legal and practical measures to combat incitement to religious hatred and intolerance.

Iran went on to recommend the Danish government

take concrete measures to put an end to Islamophobia and hate speech regarding Muslims, which continues to be widespread in public and political debate. 

Whereas Saudi Arabia had the following proposal:

that effective measures be taken to encourage tolerance and to combat stereotypes against minorities in particular Muslims to promulgate legislation which makes a distinction between the freedom of expression and hate speech.  

Undoubtedly these states will have been encouraged by the actions of the Danish police and the District Court of Elsinore. However, the fates Asia Bibi on death row for blasphemy in Pakistan, Raif Badawi serving 10 years for insulting Islam in Saudia Arabia, and Ayatollah Kazemeini  Boroujerdi serving a lengthy prison sentence in Iran for “waging war against God”, show that criticism of religion is an essential human right for all, including devout religious believers of all faiths. It is therefore to be hoped that the Danish police will drop the charges against the Koran burner, and that the decision by the District Court of Elsinore be appealed and reversed.