A 2018 judgment of the European Court of Human Rights (ECtHR) will illustrate that there is no freedom to insult under national and international law.

But first, the freedom of expression or speech under international law.

One of the international treaties that regulate freedom of expression is the International Covenant on Civil and Political Rights (ICCPR). One may also refer to the Universal Declaration of Human Rights (UDHR), considered the foundational document of international human rights law.

The UDHR sets out fundamental human rights to be universally protected. The 30 rights and freedoms set out in the UDHR include civil and political rights, like the right to life, liberty, free speech and privacy.

The UDHR, however, is not a treaty. Accordingly, it does not directly create legal obligations for countries. Be that as it may, since it is an expression of the fundamental values shared by all members of the international community, some argue that it has become binding as a part of customary international law, more so when countries have consistently invoked it for more than 60 years.

Article 26 of the UDHR promotes “understanding, tolerance and friendship among all nations, racial or religious groups”. Article 29, however, imposes limits and restrictions on these fundamental freedoms, including freedom of expression, although only to the extent as to secure “due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.”

Let’s look at the ICCPR.

Article 19 of the ICCPR sets out the general right to freedom of expression. This right includes freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

However, it is not an absolute right. Clause (3) provides for permissible restrictions on speech in the following terms:

The exercise of the right carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

– For respect of the rights or reputations of others.

– For the protection of national security or of public order, or of public health or morals.

Pursuant to article 4 of the ICCPR, the right to freedom of expression can also be derogated from in times of emergency.

Further restrictions on the right to freedom of expression can be seen in article 20 of the ICCPR, which states as follow:

1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

From the above, it can be seen that article 20(2) goes further than article 19(3). Whereas the latter allows for a restriction of speech in the interest of “respect of the rights or reputations of others”, the former requires the restriction of any speech that constitutes advocacy of national, racial or religious hatred, as long as it incites “discrimination, hatred or violence”.

The equivalent of article 19 of the ICCPR can be seen in regional human rights treaties such as the European Convention on Human Rights (ECHR) (article 10), the Inter-American Convention (article 13), and the African Charter (article 9(2)).

Article 10(2) of the ECHR in fact has a longer list of permissible restrictions on speech than article 19(3) of the ICCPR. It states:

“The exercise of these freedoms, since it carries with it duties and responsibilities, 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.”

The 2018 judgment of the ECtHR is in the case of ES v Austria, which upheld the restrictions in article 10(2) of the ECHR. In that case, which originated from Austria, comments were made at a public seminar on “Basic Information on Islam” organised by the institute of a right-wing Austrian political party.

One of the participants was a journalist working for a weekly journal. At the journal’s request, a preliminary investigation was instituted against a speaker at the seminar for certain statements made during the seminars, which had been directed against the doctrines of Islam.

The speaker was prosecuted, convicted and ordered by the Vienna Regional Criminal Court to pay a small fine as a penalty for breach of article 188 of the Austrian criminal code. The provision reads as follow:

“Whoever, in circumstances where his or her behaviour is likely to arouse justified indignation, publicly disparages or insults a person who, or an object which, is an object of veneration of a church or religious community established within the country, or a dogma, a lawful custom or a lawful institution of such a church or religious community, shall be liable to up to six months’ imprisonment or a day-fine for a period of up to 360 days.”

The conviction was upheld twice on appeal, first by the Vienna Court of Appeal and finally by the Austrian Supreme Court. The speaker then complained to the ECtHR for infringement of the right to freedom of expression under article 10 of the ECHR.

The crucial issue before the ECtHR was whether the interference with that right was justified under article 10(2). The restriction – article 188 of the Austrian criminal code – was clearly “prescribed by law”. But was it “necessary in a democratic society”?

The ECtHR took occasion to reiterate that freedom of expression is “one of the essential foundations of a democratic society” and applies not just to statements that are “regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb”.

While believers of a religion “cannot expect to be exempt from criticism… [and] must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith”, the court said that the “duties and responsibilities” referred to in article 10(2) include “the general requirement to ensure the peaceful enjoyment of the rights guaranteed under article 9 [freedom of religion] to the holders of such beliefs including a duty to avoid as far as possible an expression that is, in regard to objects of veneration, gratuitously offensive to others and profane.”

The court continued:

“Where such expressions go beyond the limits of a critical denial of other people’s religious beliefs and are likely to incite religious intolerance, for example in the event of an improper or even abusive attack on an object of religious veneration, a State may legitimately consider them to be incompatible with respect for the freedom of thought, conscience and religion and take proportionate restrictive measures.

“In addition, expressions that seek to spread, incite or justify hatred based on intolerance, including religious intolerance, do not enjoy the protection afforded by article 10 of the Convention.”

The Austrian courts, in their judgments, had explained why they considered that the speaker’s statements had been capable of arousing “justified indignation”. The ECtHR agreed that “presenting objects of religious worship in a provocative way capable of hurting the feelings of the followers of that religion could be conceived as a malicious violation of the spirit of tolerance, which was one of the bases of a democratic society”.

Clearly then, there is no freedom to insult under the law – national (domestic) and/or international.

Yang di-Pertuan Agong Al-Sultan Abdullah Ri’ayatuddin Al-Mustafa Billah Shah has rightly decreed that people should never belittle, insult or ridicule religions in the name of freedom of speech. – August 1, 2022.

* Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.