Freedom of Expression


           A.         Introduction:  Purpose and context of the report[1]

           1.         Hate speech, or speech designed to intimidate, oppress or incite hatred or violence against a person or group based on their race, religion, nationality, gender, sexual orientation, disability or other group characteristic, knows no boundaries of time or place. From Nazi Germany to the Ku Klux Klan in the United States to Bosnia in the 1990s to the 1994 genocide in Rwanda, hate speech has been deployed to harass, persecute and justify the deprivation of human rights, and at its most extreme, to rationalize murder. In the wake of the German Holocaust, and with the rise of the Internet and other modern media helping to facilitate the dissemination of hate speech, many governments and inter-governmental bodies have attempted to limit the harmful effects of this type of expression. These efforts, however, naturally collide with the right to freedom of expression guaranteed by numerous treaties, national constitutions and domestic laws.

           2.         In the Americas, the American Convention on Human Rights provides for a broad measure of freedom of expression under Article 13 by guaranteeing the right to “seek, receive and impart information and ideas of all kinds” through any medium.[2] Article 13 protects this freedom by banning prior censorship and indirect restrictions and by allowing for subsequent imposition of liability in only a small, finite set of exceptions, such as those designed to protect national security, public order and the rights and reputations of others. The Inter-American Commission on Human Rights and the Inter-American Court of Human Rights have further refined this freedom through their jurisprudence of recent decades.

3.         This broad mantle of freedom of expression, however, is not absolute. The American Convention–like many international and regional covenants–declares hate speech to be outside the protections of Article 13 and it requires States parties to outlaw this form of expression. Paragraph 5 of Article 13 provides:

Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered offenses punishable by law.[3]

 4.         The Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights at the Organization of American States has also made declarations on this area of expression. In a joint statement with the United Nations’ Special Rapporteur on Freedom of Opinion and Expression and the Organization for Security and Cooperation in Europe (OSCE) Representative on Freedom of the Media, the Special Rapporteur recognized that expression that incites or promotes “racial hatred, discrimination, violence and intolerance” is harmful, and that crimes against humanity are often accompanied or preceded by these forms of expression. The Joint Statement noted that laws governing hate speech, given their interference with freedom of expression, should be “provided by law, serve a legitimate aim as set out international law and be necessary to achieve that aim.” It further noted that hate speech, in accordance with international and regional law, should, at a minimum conform to the following guidelines

 ·         no one should be penalised for statements which are true;

 ·         no one should be penalized for the dissemination of hate speech unless it has been shown that they did so with the intention of inciting discrimination, hostility or violence;

·         the right of journalists to decide how best to communicate information and ideas to the public should be respected, particularly when they are reporting on racism and intolerance

 ·         no one should be subject to prior censorship; and

 ·         any imposition of sanctions by courts should be in strict conformity with the principle of proportionality[4]

 5.         The basic outlines of hate speech under Article 13(5), unlike the similar provisions found in international treaties and domestic law, have yet to be interpreted or developed in depth by the Inter-American Court or Inter-American Commission. Given the lack of Inter-American jurisprudence on this area of freedom of expression, the Special Rapporteur for Freedom of Expression endeavors to explore its possible confines through a study of comparative case law from the United Nations Human Rights Committee and the European Court of Human Rights. As with other comparative case law studies, the Special Rapporteur for Freedom of Expression considers these systems’ extensive jurisprudence on the right to freedom of expression as valuable sources that can illuminate the interpretation of this right in the Inter-American system.

 6.         The Special Rapporteur for Freedom of Expression also aims to encourage comparative case law studies in compliance with the mandate of the Heads of State and Government conferred at the Third Summit of the Americas held in Quebec, Canada, in April 2001.  During the Summit, the Heads of State and Government ratified the mandate of the Special Rapporteur for Freedom of Expression, and further held that the States “will support the work of the Inter-American System of Human Rights in the area of freedom of expression, and through the Special Rapporteur for Freedom of Expression of the IACHR, will proceed to disseminate comparative case law studies, and will further endeavor to ensure that national laws on freedom of expression are consistent with international legal obligations.

            B.        Hate speech under the framework of United Nations

            1.         International treaties and conventions

 7.         In the realm of international law, like in the Inter-American system, freedom of expression enjoys broad protection. Article 19 of the Universal Declaration on Human Rights provides that “[e]veryone has the right to freedom of opinion and expression,” which includes the right to hold opinions without interference and the right to seek, impart and receive information regardless of the medium. These rights have been defined in greater detail by international and regional treaties,[5] such as the Rome Statute of the International Criminal Court[6] and the International Covenant on Civil and Political Rights (ICCPR).

 8.         The ICCPR, which opened for signature in 1966 and which has been in force since 1976, closely mirrors the text of Article 13 of the American Convention by guaranteeing the right to freedom of expression via any medium.[7] At the same time, the ICCPR–like the American Convention–provides room for restrictions on freedom of expression. Article 19 notes that freedom of expression “carries with it special duties and responsibilities” and thus is subject to restrictions, such as those necessary to respect others’ rights or reputation or to protect national security, morals or public order.[8] Like the American Convention, the ICCPR also provides for restrictions on freedom of expression by prohibiting war propaganda and the advocacy of national, racial or religious hatred. But where the American Convention provides for a ban on advocacy of these hatreds when they incite lawless violence “or any other similar action,” Article 20 of the ICCPR goes beyond violence: it prohibits such hatred when it constitutes incitement to “discrimination, hostility or violence.”[9]  The United Nations Human Rights Committee noted in its General Comments that advocacy of these kinds of hatred falls under Article 20 whether the aims are “internal or external to the State concerned.”[10]

 9.         The International Convention on the Elimination of all Forms of Racial Discrimination (CERD), in its efforts to halt racial hatred, provides further scope for restrictions on freedom of expression.[11] Article 4 requires signatories to condemn propaganda and groups that are based on “ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form.”[12]  The CERD further requires parties to make, inter alia, “dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin” punishable by law.[13]

 10.       Restrictions on hate-motivated speech have also been upheld by the United Nations Human Rights Committee in its jurisprudence on Articles 19 and 20 of the ICCPR. In a number of cases, the Committee, which provides non-binding views on the implementation of the ICCPR, has upheld limitations on hate speech when it was deemed necessary to meet the goal of protecting the rights and reputations of others.

 11.       In Ross v Canada, for example, the U.N. Human Rights Committee ruled that the publication of anti-Jewish views could fall within the scope of the ICCPR’s ban on advocacy of national, racial and religious hatred that constitutes incitement to discrimination, hostility or violence.[14]  The petitioner, Malcolm Ross, was a teacher in Canada for 15 years, during which time he published books and made public statements denigrating the Jewish faith and heritage.[15]

 12.       A parent from Ross’ school district filed a complaint against the School Board alleging that it condoned Ross’ anti-Semitic views by failing to take action against him, and thus discriminated against Jewish students.[16] After an evaluation by a Board of Inquiry, Ross was removed from the classroom and assigned a non-teaching position.[17] Ross appealed the decision, but the Supreme Court ultimately ruled to uphold the Board of Inquiry’s finding of discrimination by the school board.[18] Ross filed a complaint with the U.N. Human Rights Committee, alleging that the denial of his right to express his religious views violated Article 19 of the ICCPR.[19]

 13.       In its considerations of the merits of the case, the Committee noted that there were three issues requiring analysis.[20] First, the Committee had to consider whether Ross’ freedom of expression was in fact restricted by his removal from his job.[21]  The Committee said that because the loss of a teaching post was a “significant detriment” and the loss in this case was the result of the expression of Ross’ views, the act was in fact a restriction under Article 19.[22]

 14.       The second issue was whether the restrictions on Ross’ right to freedom of expression met the conditions set out in paragraph 3 of Article 19: that it was provided by law and that it aimed to respect the rights and reputation of others or protect national security, public order or public health or morals.[23] The Committee took its cues from the Supreme Court on the question of an adequate legal framework for the charges against Ross, noting that the Court found sufficient basis in domestic law to sustain the order to remove Ross from his job.[24] With respect to the issue of the restrictions’ aims, the Committee concluded that they were designed to protect the rights and reputations of those of the Jewish faith, “including the right to have an education in the public school system free from bias, prejudice and intolerance.”[25]

 15.       The final question in Ross v. Canada was whether the restrictions on Ross’ freedom of expression were necessary to protect the right or reputations of those of the Jewish faith.[26] The Committee noted that under Article 19 of the ICCPR, the right to freedom of expression carries special duties and responsibilities, and this was especially pertinent in the context of a school system with young students.[27] Given that the Supreme Court had found it reasonable to expect a causal link between the authors’ anti-Jewish publications and “the poisoned school environment” felt by Jewish students in the district, the Committee ruled that Ross’ removal from his job could be considered a necessary restriction.[28]

 16.       In Faurisson v France, the Committee also ratified restrictions on freedom of expression connected to hate speech. Robert Faurisson, a professor of literature, was prosecuted under France’s “Gayssot Act,” which amended an 1881 Freedom of Press Law and made it a crime to contest the existence of certain crimes against humanity under which Nazi leaders were convicted by the International Military Tribunal at Nuremberg.[29] In a magazine interview, Faurisson expressed his belief that the gas chambers used to exterminate Jews in Nazi concentration camps during World War II were “a myth.”[30] The Court of Appeal of Paris (Eleventh Chamber) upheld the conviction, prompting Faurisson to file a petition with the Committee contending that the “Gayssot Act” inhibited his right to freedom of expression.[31]

 17.       The Committee addressed the same three issues as in Ross v. Canada: whether it was provided by law, whether it targeted one of the aims laid out in paragraph 3 of Article 19 and whether it was necessary to achieve a legitimate purpose.[32] With respect to the first issue, the Committee said the restriction on Faurisson’s freedom of expression was clearly provided for by the “Gayssot Act” of July 13, 1990.[33] The Committee also noted that his conviction “did not encroach upon his right to hold and express an opinion in general” but was based instead on the violation of the rights and reputations of others, so it satisfied the requirements of paragraph 3.[34]

 18.       Regarding the third issue–whether the restriction was necessary – the Committee highlighted France’s arguments that the Gayssot Act was designed to fight racism and anti-Semitism and that the denial of the Holocaust was the “principle vehicle for anti-[S]emitism.”[35] The Committee said that in light of the absence of arguments undermining France’s position, it was satisfied that the restriction on freedom of expression was necessary, and thus there was no violation of Article 19.[36]

 19.       Finally, in J.R.T. and the W.G. Party v. Canada the Committee considered the case of a Canadian who used tape-recorded messages to warn callers of the dangers of “international finance and international Jewry leading the world into wars, unemployment and inflation and the collapse of world values and principles.”[37] J.R.T.’s petition contested the termination of his telephone service under the Canadian Human Rights Act of 1978, which made it a “discriminatory practice” to use the telephone in a way that might expose others to hatred or contempt on the basis of, inter alia, race, national or ethnic origin and religion.[38] The Committee declared the petition to be inadmissible because the opinions that J.R.T. wanted to disseminate by telephone “clearly constitute the advocacy of racial or religious hatred which Canada has an obligation under Article 20(2) of the [ICCPR] to prohibit.[39]

           C.        The International Criminal Tribunal for Rwanda (ICTR) and the International Military Tribunal at Nuremberg

            20.       At its most extreme, hate speech can be used as a weapon to incite, promote or further the extermination of a group of people, as was seen in both Nazi Germany and in the 1994 genocide in Rwanda. Both atrocities prompted the creations of international tribunals to prosecute those responsible, and these prosecutions included direct rulings on the crime of “incitement to genocide.” While this heinous crime is an egregious and infrequent form of the hate speech more commonly targeted by international conventions and domestic law, the decisions of the two tribunals on incitement to genocide can be valuable in guiding decisions about the more standard types of hate speech. 

           21.       The International Military Tribunal at Nuremberg was the result of a 1945 agreement between the United Kingdom, the United States, France and the Soviet Union aimed at prosecuting war criminals for crimes against peace, war crimes and crimes against humanity.[40] One case heard by the Tribunal was that of Julius Streicher, a strident supporter of the Nazis who called for the annihilation of the Jewish race and incited Germans to persecute Jews through speeches and Articles.[41] Streicher, for example, called someone of Jewish origin a “parasite, an enemy, an evil-doer, a disseminator of diseases who must be destroyed in the interest of mankind.”[42] While Streicher denied having knowledge of mass executions of Jews, the Tribunal ruled that Streicher’s incitements to murder and extermination clearly constituted “persecution on political and racial grounds in connection with war crimes” as defined by the Tribunal’s Charter, and were thus crimes against humanity.[43] Streicher was sentenced to death.[44]

           22.       Fifty years later, the International Criminal Tribunal for Rwanda was established by a U.N. Security Council Resolution of 1994 in the wake of a variety of reports showing that genocide and other “systematic, widespread and flagrant violations” of international humanitarian law were committed in Rwanda.[45] The Statute for this Tribunal empowered it to prosecute those who committed genocide, which covered killing, infliction of serious bodily or mental harm and other acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”[46] Within the category of genocide-related crimes, the Statute specifically establishes that “direct and public incitement to commit genocide” as a punishable offense.[47]

23.       The ICTR weighed this crime in the 2003 decision of The Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze. Nahimana was charged with a series of crimes, including “direct and public incitement to genocide,” for broadcasts made on a Rwandan radio station known as RTLM, which called on listeners to take against action the enemy and which later became known as “Radio Machete.”[48] Barayagwiza was also charged with various crimes, including incitement to genocide, in connection with activities at the RTLM radio station and of his political party, the Coalition pour la Defense de la Republique (CDR), which promoted the killing of Tutsi civilians.[49] Ngeze was likewise charged with crimes that included incitement to genocide for publications made in the newspaper Kangura, whose writings were underpinned by ethnic hatred, fearmongering and calls to violence against the Tutsis.[50] The Tribunal ultimately found that all three men acted with the “intent to destroy, in whole or in part, the Tutsi ethnic group.”[51] Additionally, because Nahimana was responsible for programming at RTLM, it found him guilty of direct and public incitement to genocide.[52] Barayagwiza, as one of the main founders of CDR, and Ngeze, who was founder, owner and editor of Kangura, were also found guilty of the same.[53]

 24.       In its analysis of the publications and broadcasts made by the defendants, the ICTR evaluated the speech and its context, and then drew a line between “discussion of ethnic consciousness” on one hand and “promotion of ethnic hatred” on the other, a distinction that could be applied to future cases.[54] The decision is also pivotal because it held members of the media responsible for more than just their expression – it made them accountable for the effect of their speech, namely the genocide that resulted.[55] The Tribunal thus deemed the perpetrators of incitement to genocide as guilty as if they had committed genocide themselves.[56]

            D.        Hate speech under the European Convention on Human Rights

            25.       The European Convention for the Protection of Human Rights and Fundamental Freedoms, designed to lay out a framework for the enforcement of rights set out in the Universal Declaration of Human Rights, provides for the right to freedom of expression, as well as its limits. Under Article 10, the European Convention stipulates that freedom of expression includes the right to hold opinions, to receive and impart information and ideas “without interference by public authority,” although it notes that these freedoms carry “duties and responsibilities.”[57] The Article then provides a broad list of possible limits to freedom of expression:

 [These freedoms] may be subject to such formalities, conditions, restrictions, or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.[58]

 26.       The European Convention, therefore, is similar to the ICCPR in its provisions for freedom of expression, but it does not address advocacy of national, religious or racial hatred that incites discrimination, hostility or violence. But the European Court of Human Rights’ jurisprudence has analyzed extensively the theme of hate speech based on the intersection of Article 10 of the European Convention and domestic laws banning these forms of incitement.[59] In these decisions, the Court has utilized the standards of Article 10(2) to determine when restrictions on freedom of expression are justified: an interference with freedom of expression violates Article 10 unless it is “prescribed by law,” is designed to carry out at least one of the aims laid out in Article 10(2) and is “necessary in a democratic society.” The Court has repeatedly defined “necessary” as a “pressing social need” and has evaluated interferences based on whether they are “proportionate to the legitimate aims pursued.”

27.       In Jersild v. Denmark, the European Court found that laws targeting hate speech had been applied too broadly in the case of a journalistic program on racist youths.[60] Jens Olaf Jersild was a journalist with a Danish television and radio network who interviewed three members of the youth group “Greenjackets” for a television news program.[61] During the interview the three youths made derogatory statements about immigrants and ethnic groups in Denmark, calling some of the groups “animals.”[62] Jersild was charged with aiding and abetting the youths in their violation of a Danish law prohibiting threats, insults or degradation against a group of people based on their race, color, national or ethnic origin or belief.[63] In his complaint to the European system, Jersild claimed that his conviction for this crime violated Article 10 of the European Convention.[64] The Court noted that Danish law did provide for the crime for which Jersild was charged, and that the interference had the legitimate aim of protecting the reputation or rights of others as laid out in Article 10(2).[65] With respect to the final element of Article 10(2) – whether the measures were necessary in a democratic society – the Court emphasized two points as background. First, it noted that it was “particularly conscious” of the importance of fighting racial discrimination.[66] It also emphasized that Denmark’s obligations under Article 10 had to be interpreted “so as to be reconcilable” with its obligations under the CERD.[67] At the same time, however, the Court noted that a critical consideration was whether the expression, when viewed as a whole, “appeared from an objective point of view to have had as its purpose the propagation of racist views and ideas.” It concluded that the program did not appear to have such an intent, as shown by the program’s introduction, and was designed instead to expose a particular group of youths and their lives.[68] As a result of this, the Court ruled that the government’s justifications for Jersild’s conviction did not establish that the interference with freedom of expression was “necessary in a democratic society.”[69]

28.       In Incal v. Turkey, the European Court upheld a citizen’s right to criticize the government when it fell short of inciting violence, hostility or hatred. Ibrahim Incal was a Turkish lawyer and a one-time member of the executive committee of the People’s Labour Party (the HEP).[70] In 1992 the executive committee drafted a leaflet to distribute in the city of Izmir criticizing the actions of local authorities, whom the HEP accused of attempting to drive the Kurds out of the cities.[71] It called on “Kurdish and Turkish democratic patriots to assume their responsibilities” and oppose this so-called war against the proletariat.[72] The HEP executive committee asked the authorities for permission to distribute the leaflet, but the National Security Court enjoined the distribution and later convicted Incal and eight other HEP committee members for attempting to incite hatred and hostility through racist words.[73] Incal later filed a petition within the European system alleging, inter alia, that his criminal conviction violated his right to freedom of expression as guaranteed by Article 10 of the European Convention.[74]  The Court again weighed whether this interference with freedom of expression met the provisions of Article 10(2): that it is “prescribed by law,” that it is designed to carry out at least one of the aims laid out in Article 10(2) and that it is “necessary in a democratic society.”[75]  The participants all agreed that the interference was prescribed by the Criminal Code and the Press Act, so it was therefore prescribed by law.[76] Although the parties did not present arguments on the aim of the law, so the Court assumed the goal was to prevent disorder, a legitimate aim under Article 10. The Court found, however, that the final requirement–that the law was necessary in a democratic society–was not satisfied. The Court noted that Article 10.

 is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regardedas inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society.’[77]

 29.       In light of these principles and the context of the leaflet, the Court found that the appeals to Kurds and others could be seen as urging the population to “band together to raise certain political demands.” But while the meaning of “neighborhood committees” was unclear, the Court found that the appeals could not be viewed as “incitement to the use of violence, hostility or hatred between citizens.”[78] The Court also noted that the limits of criticism directed at the government are wider than those targeting private citizens. It concluded that Incal’s conviction was disproportionate to the government’s purported aim, and thus unnecessary in a democratic society.[79]

30.       The European Court made a similar finding in Sürek and Özdemir v. Turkey, a case involving a Turkish publication that had published an informative interview with a leader of an illegal political group, the Kurdistan Workers’ Party (PKK).[80] Kamil Tekin Sürek was a major shareholder and Yücel Özdemir the editor-in-chief of Haberde Yorumda Gerçek, a weekly review.[81] In the wake of the interview, in which the PKK leader vowed to continue waging war against the Turkish state as long the state resisted the will of the Kurds, Turkish authorities charged Sürek and Özdemir with dissemination of separatist propaganda and terrorist views, a violation of the Prevention of Terrorism Act of 1991.[82] The European Court, in its review of the applicants’ claim that their freedom of expression was violated, applied the Article 10(2) criteria to find that the violations were prescribed by law and they had the legitimate aim of maintaining national security and public order.[83] With respect to the third requirement–that the measures be “necessary in a democratic society”–the Court noted that this requires there to be a “pressing social need,” and this element was missing in the case at hand.[84] The Court first reiterated that Article 10(2) provides little room for restrictions on political speech or debate on questions of public interest.[85] It then noted that the interview in question could not be seen to incite violence or hatred, and instead they had a “newsworthy content which allowed the public both to have an insight into the psychology of those who are the driving force behind the opposition to official policy in south-east Turkey,” and could not be seen to incite violence or hatred.[86] The Court ruled, therefore, concluded that the Turkish authorities’ reasons for the applicants’ conviction was not sufficient to justify the interference with freedom of expression.[87]

31.       In Arslan v. Turkey, the Court again found that criticism of the government falling short of incitement to violence and hatred could not be justifiably restricted. Günay Arslan, a Turkish citizen, wrote a book entitled History in Mourning: 33 Bullets, which discussed Turkey’s oppression of the Kurds.[88] Arslan was convicted of disseminating separatist propaganda by intending to incite those of Kurdish descent to rebel against the state.[89] In the Court’s review of the case, it found that Arslan’s conviction under The Prevention of Terrorism Act met the Article 10(2) requirement that the interference with freedom of expression be prescribed by law.[90] The Court also found that because of the “sensitivity of the security situation” in southeast Turkey, the government had the legitimate aims of protecting national security and territorial integrity and preventing disorder in its restrictions of freedom of expression.[91] Regarding the requirement that the restriction be necessary in a democratic society, the Court noted that book was a literary historical narrative, and while it was not a neutral depiction of facts, the book’s intended criticism of the Turkish authorities fell within the realm of political speech and questions of public interest, areas where there is little room for restriction under Article 10.[92] Ultimately the Court found that the book contained a “hostile tone” and “acerbic passages,” but it did not incite to violence or armed resistance.[93] That, along with the severe prison term of one year and eight months, led the Court to conclude that the conviction was “disproportionate to the aims pursued and accordingly not ‘necessary in a democratic society.’”[94]

 32.       The European Court has also ruled to uphold restrictions on freedom of expression based on national security concerns. In Zana v. Turkey, for example, the Court found that a former government official’s freedom of expression could be limited when likely to aggravate a tense security situation. Mehdi Zana, a former mayor of the Turkish town of Diyarkabir, told journalists from prison that he supported the “national liberation movement” of the Kurdistan Workers’ Party (PKK) but did not support massacres.[95] He then added that “’[a]nyone can make mistakes, and the PKK kill women and children by mistake.’”[96] Turkey’s National Security Court sentenced Zana to prison for violating the Criminal Code’s ban on public incitement of hatred and hostility and its prohibition against belonging to armed groups or organizations.[97] The Court, applying the standards of Article 10(2) in its review of the case, found that the limitation on Zana’s freedom of expression was prescribed by law[98] and that the restrictions were legitimate since they could be justified on national security and public safety grounds in light of the “serious disturbances” taking place in southeast Turkey.[99] The Court then looked to the content of Zana’s statements to determine if it was necessary in a democratic society.[100] It noted that Zana’s statements were contradictory and vague, but that they also “coinceded with murderous attacks carried out by the PKK on civilians in south-east Turkey.”[101] Because Zana was the former mayor of Diyarkabir, his support of the PKK could be viewed “as likely to exacerbate an already explosive situation” in the region, leading the Court to conclude that Zana’s conviction was the result of a “pressing social need” and proportionate to a legitimate aim.[102]

 33.       In Sürek v Turkey (No. 1), meanwhile, the Court again found that limitations on hate speech and the “glorification of violence” did not run afoul of Article 10. The applicant was the major shareholder in a company that owned a Turkish weekly review, which published letters to the editor decrying the Turkish authorities’ actions in the troubled southeast of Turkey and calling the authorities a “murder gang.”[103] Sürek was convicted of disseminating separatist propaganda[104] and filed a complaint with the European Court. The Court found that the restriction on freedom of expression was “prescribed by law” under the Prevention of Terrorism Act 1991[105] and noted that the government’s restrictions of freedom of expression were legitimate given that they could be said to be in pursuit of national security and territorial integrity in a volatile region.[106] With respect to the question of whether the interference was “necessary in a democratic society,” the Court noted that the letters had the clear aim of stigmatizing the other side by using phrases like “the Fascist Turkish army” and “the TC murder gang” along with words like “massacres” and “slaughter.”[107] It also noted that the letters were published against a backdrop of a serious security situation in southeast Turkey, the site of violence disturbances and emergency rule.[108] Given this context, the Court viewed the letters as “capable of inciting to further violence in the region by instilling a deep-seated and irrational hatred against those depicted as responsible for the alleged atrocities.”[109] The Court also highlighted that one of the letters identified people by name, thus exposing them to possible violence. It also noted that while interference is not allowed for information that merely shocks or offends, this case exceeded that standard because it involved hate speech and a “glorification of violence.”[110] Finally, the Court remarked that while the applicant did not associate himself with the views of the letter writers, he did provide them with “an outlet for stirring up violence and hatred.”[111]  As a shareholder, the applicant had influence over the publication’s content, and thus was subject to the “duties and responsibilities” laid out in Article 10.[112] As a result, the Court found that the penalties could be reasonably viewed as an answer to a pressing social need and thus in proportion to the legitimate aims pursued.[113]



1] This chapter was made possible through the research and first drafting of Susan Schneider, a second year law student at GeorgeWashingtonUniversity.  She was an intern at the Office of the Special Rapporteur for Freedom of Expression during 2004.  The Office thanks her for her contributions.

[2] American Convention on Human Rights [hereinafter American Convention], in BASIC DOCUMENTS PERTAINING TO HUMAN RIGHTS IN THE INTER-AMERICAN SYSTEM, OEA/Ser.L/V/I.4 rev. 9 (Jan. 31, 2003) [hereinafter BASIC DOCUMENTS], Article 13.1, 13.2.

[3]Id., Article 13.5.

[4] Joint statement on racism and the media, by the UN Special Rapporteur in Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, and the OAS Special Rapporteur on Freedom of Expression, February 27, 2001, available in the

[5] Prosecutor v.Nahimana,Barayagwiz and Ngeze, Judgment and Sentence, ICTR-99-52-T, para. 983 (ICTR Trial Chamber, Dec. 3, 2003).

[6] Article 6 of the Rome Statute of the International Criminal Court provides that any act – including one that causes serious mental harm – “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group” constitutes genocide, and thus falls under the jurisdiction of the ICC. Rome Statute for the International Criminal Court, U.N. Doc. A/Conf. 183/9, July 17, 1998.

[7] International Covenant on Civil and Political Rights, GA Res. 2200A (XXI), 21 UN GAOR (Supp. No 16), UN doc. A/6316 (1966), 999 U.N.T.S. 171.

[8] Ibid., Article 19.

[9] Ibid., Article 20.

[10] General Comments, U.N. GAOR Hum. Rts. Comm., U.N. Doc. CCPR/C/21/Rev.1 (1989)

[11] International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21, 1965, GA Res. 2106 A(XX), 660 U.N.T.S.  195 (entered into force Jan. 4, 1969).

[12] Ibid., Article 4.

[13] Ibid.

[14] Views of the Human Rights Committee, U.N. GAOR Hum. Rts Comm., 70th Sess., U.N. Doc. CCPR/C/70/D/736/1997 (2000).

[15] Ibid., para. 2.1, 4.2.

[16] Ibid., para 2.3.

[17] Ibid., para. 4.1-4.3.

[18] Ibid., para. 4.6-4.8.

[19] Ibid., para. 5.1.

[20] Ibid.,para. 11.1-11.6.

[21] Ibid., para. 11.1.

[22] Ibid.

[23] Ibid., para. 11.2.

[24] Ibid., para. 11.4.

[25] Ibid., para. 11.5.

[26] Ibid., para 11.6.

[27] Ibid.

[28] Ibid.

[29] Views of the Human Rights Committee, U.N. GAOR Hum. Rts Comm., 58th Sess., U.N. Doc. CCPR/C/58/D/550/1990 (1996), para. 2.1-2.3.

[30] Ibid., para. 2.6.

[31] Ibid., para. 2.7, 3.1.

[32] Ibid., para. 9.4.

[33] Ibid., para. 9.5.

[34] Ibid., para. 9.6.

[35] Ibid., para. 9.7.

[36] Ibid., para. 10.

[37] J.R.T. and the W.G. Party v. Canada, Communication No. 104/1981, U.N. Doc. Supp. No. 40 (A/38/40-) at 231 (1983), para. 2.1.

[38] Ibid., para 2.2.

[39] Ibid. para. 8.

[40] Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers and Charter of the International Military Tribunal, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279.

[41] The Avalon Project, Judgment: Streicher. Available at

[42] Ibid.

[43] Ibid.

[44] Prosecutor v.Nahimana, Barayagwiza and Ngeze, ICTR-99-52-T, para. 981.

[45] U.N. SCOR, 49th Sess., U.N. Doc. S/RES/955 (1994).

[46] Ibid., art. 2.

[47] Ibid.

[48] Prosecutor v. Hanimana, Barayagwiza and Ngeze, ICTR-99-52-T, para.5, 18, 1031.

[49] Ibid., para. 6, 9, 1035.

[50] Ibid., para. 7, 10, 1036.

[51] Ibid., para 969.

[52] Ibid., para. 1033.

[53] Ibid., para. 1035, 1038.

[54] Catharine A. MacKinnon, International Decision: Prosecutor v. Nahimana, Barayagwiza and Ngeze, 98 A.J.I.L. 325 at 329.

[55] Ibid.

[56] Ibid.

[57] European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950 (ETS No. 5), 213 U.N.T.S. 222. Article 10.

[58] Ibid.

[59] See Prosecutor v. Hanimana, Barayagwiza and Ngeze, ICTR-99-52-T, para. 991.

[60] Eur. Ct. H.R., Jersild v. Denmark, Judgment of 22 August 1994, Application No. 15890/89.

[61] Ibid., para 10.

[62] Ibid., para. 12.

[63] Ibid., para. 12.

[64] Ibid., para. 25.

[65] Ibid., para. 27.

[66] Ibid., para. 30.

[67] Ibid., para. 30.

[68] Ibid., para. 33.

[69] Ibid., para. 37.

[70] Eur. Ct. H.R., Case of Incal v. Turkey, Judgment of June 9, 1998, Application No. 22678/93.

[71] Ibid., para. 10.

[72] Ibid., para. 10.

[73] Ibid., para. 11, 12.

[74] Ibid., para. 38.

[75] Ibid., para. 40.

[76] Ibid., para. 41.

[77] Ibid., para. 46.

[78] Ibid., para. 50.

[79] Ibid., para. 59.

[80] Eur. Ct. H.R., Case of Sürek and Özdemir v. Turkey, Judgment of July 8, 1999, Application No. 23927/94, 24277/94.

[81] Ibid., para. 8.

[82] Ibid., para. 10, 12, 23.

[83] Ibid., para. 47, 51.

[84] Ibid., para. 60.

[85] Ibid., para. 60.

[86] Ibid., para. 61.

[87] Ibid., para. 61.

[88] Eur. Ct. H.R., Case of Arslan v. Turkey, Judgment of July 8, 1999, Application No. 23462/94, para. 10.

[89] Ibid., para. 19.

[90] Ibid., para. 37.

[91] Ibid., para. 40.

[92] Ibid., para. 45, 46.

[93] Ibid., para. 48.

[94] Ibid., para. 50.

[95] Eur. Ct. H.R., Case of Zana v. Turkey, Judgment of Nov. 25, 1997, Application No. 18954/91, para. 12.

[96] Ibid., para 12.

[97] Ibid., para. 27, 31.

[98] Ibid., para. 37.

[99] Ibid., para 41.

[100] Ibid., para. 56.

[101] Ibid., para. 59.

[102] Ibid., para. 61, 62.

[103] Eur. Ct. H.R., Case of Sürek v Turkey (No. 1), Judgment of July 8, 1999, Application No. 26682/95, para. 11.

[104] Ibid., para. 14, 15.

[105] Ibid., para. 48.

[106] Ibid., para. 52.

[107] Ibid., para. 62.

[108] Ibid., para. 62.

[109] Ibid., para. 62.

[110] Ibid., para. 62.

[111] Ibid., para. 63.

[112] Ibid., para. 63.

[113] Ibid., para. 63, 65.