Pencils and flowers are placed at the French embassy at Pariser Platz in Berlin. The writer says international courts have often condoned restrictions on freedom of expression, when it comes to religion. Picture: Hannibal Hanschke

Freedom of expression is limited in all democracies. Pierre de Vos digs up a few examples to illustrate this.

Johannesburg - In the wake of the murder of journalists and innocent bystanders in Paris last week, many commentators have extolled the virtues of the unfettered right to freedom of expression.

But freedom of expression is limited in all democracies. The European Court of Human Rights often condones restrictions imposed on freedom of expression by democratic governments, finding such restrictions comply with the provisions of the European Convention of Human Rights. I have dug up a few examples to illustrate this obvious, but often ignored, point.

In 2013, Chelsea Manning was convicted by a US court of violating the Espionage Act and other offences, after releasing classified documents published on WikiLeaks. Manning is serving a 35-year prison sentence for her “crime”.

But it’s not only in the US where freedom of expression is often restricted for political, religious or “moral” reasons.

In what follows, I provide examples of recent freedom of expression judgments of the European Court of Human Rights that demonstrate that courts often justify restrictions on freedom of expression and that Europe’s highest human rights tribunal regularly upholds such restrictions.

This means that it may not be accurate to imply (as some – but not all – commentators on the Charlie Hebdo tragedy have done) that any state that imposes limits on freedom of expression to accommodate the religious sensitivities of a section of the population would condone religious tyranny and intolerance.

Otto-Preminger-Institut v Austria (1994)

In 1985, at the request of the Innsbruck diocese of the Roman Catholic Church, an Austrian public prosecutor instituted criminal proceedings against the Otto-Preminger-Institut’s manager for “disparaging religious doctrines”, an act prohibited by section 188 of the Austrian Penal Code for advertising and showing a film Das Liebeskonzil (Council in Heaven).

The authorities seized the movie. It was the seizure and the legal provision that authorised this that was challenged before the European Court of Human Rights on the basis that it unjustifiably infringed on article 10 of the European Convention of Human Rights.

Article 10(1) states: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.

Das Liebeskonzil portrays God as a senile old man prostrating himself before the Devil, with whom he exchanges a deep kiss. The adult Jesus Christ is portrayed as a low-grade mental defective. In one scene, he lasciviously tries to fondle and kiss his mother’s breasts, which she permits.

Finding that the seizure of the movie did not infringe unjustifiably on the right to freedom of expression, the court took note of the fact “that the Roman Catholic religion is the religion of the overwhelming majority of” the community in which it was shown.

In seizing the film, the Austrian authorities acted to ensure religious peace in that region.

Leroy v France (2008)

In 2002, French cartoonist Denis Leroy was convicted for complicity in condoning terrorism for drawing a cartoon representing the attack on the twin towers with a caption parodying the advertising slogan of a famous brand: “We have all dreamt of it… Hamas did it.”

The conviction was secured in terms of article 24, section 6 of the French Press Act of 1881, which penalises condoning terrorism.

The court argued that through his choice of language, Leroy commented approvingly on the violence perpetrated against thousands of civilians and diminished the dignity of the victims.

According to the court, the cartoon had provoked a certain public reaction, capable of stirring up violence and demonstrating a plausible impact on public order.

In the circumstances, the European Court of Human Rights found that the conviction constituted a permissible limitation on the right to freedom of expression protected by article 10 of the European Convention of Human Rights.

Wingrove v The UK (1996)

Nigel Wingrove, a film director, made a video entitled Visions of Ecstasy, which he hoped to distribute to interested people across the UK. The action of the film centres upon a youthful actress dressed as a nun and intended to represent St Teresa.

It begins with the nun, dressed loosely in a black habit, stabbing her hand with a large nail and spreading her blood over her naked breasts and clothing. In her writhing, she spills a chalice of communion wine and proceeds to lick it up from the ground.

The second part shows St Teresa dressed in a white habit standing with her arms held above her head by a white cord suspended from above and tied around her wrists.

The near-naked form of a second female, said to represent St Teresa’s psyche, crawls along the ground towards her. Upon reaching her feet, the psyche begins to caress her feet and legs, then her midriff, then her breasts, and finally exchanges passionate kisses with her.

The British Board of Film Classification refused to authorise the lawful distribution or showing of the movie due to its “obscene” nature and because the movie was “blasphemous”.

Although it is not blasphemous to speak or publish opinions hostile to the Christian religion if the publication is “decent and temperate”, “the tone, style and spirit” of the movie was “bound to give rise to outrage at the unacceptable treatment of a sacred subject”, said the court.

It further found “it was not unreasonable” for the UK authorities to refuse to classify the movie for distribution. Although this amounted to a complete ban on the film’s distribution, “this was an understandable consequence” of its blasphemous nature.

The court found the banning of the film was justified as being necessary in a democracy within the meaning of paragraph 2 of article 10. This paragraph states that: “

These examples suggest many states across Europe pass laws or impose judicial limits on free speech to accommodate the religious and moral sensitivities of members of their societies.”

Europe’s highest human rights tribunal does not always view these restrictions as threatening basic democratic freedoms on the continent. This suggests that reasonable people may well differ on the necessity to limit speech to accommodate religious and other “sensitivities”.

Many of us may well disagree with the latitude shown by the European Court of Human Rights towards such limitations. We may prefer a more expansive interpretation of free speech and a more restrictive interpretation of its justifiable limitations.

However, any relatively informed person will have to think twice before arguing that any state that limits freedom of expression to accommodate the religious sensitivities of a section of the population would condone religious tyranny and intolerance or that a demand for such limitations itself constitute an attack on freedom, liberty and democracy.

* Pierre de Vos teaches constitutional law at UCT and writes a regular blog Constitutionally Speaking.

** The views expressed here are not necessarily those of Independent Media.

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