How censorship became a ‘human right’

The ECHR has ruled that the Bulgarian courts acted unlawfully by refusing to censor a politician.

Andrew Tettenborn

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Topics Free Speech Politics World

How clued-up are you on Bulgarian politics? Be honest. You have almost certainly never heard of the nativist political party, Ataka, or its highly unpleasant, vociferous and publicity-hungry leader, Volen Siderov.

Does this matter? If you believe in free speech, the answer is yes, thanks to a little-reported decision by the European Court of Human Rights (ECHR) last week.

Siderov is not keen on Roma people – or, for that matter, gays, Jews, Catholics and any number of other groups. His pet hates make a depressingly long list. In a series of tub-thumping speeches in 2005, in the media and in the Bulgarian parliament, he spoke repeatedly of what he saw as uncontrolled and unpunished Roma rampages against ethnic Bulgarians. He is also the author of a book called Bulgarophobia, in which he accuses the Roma of being disproportionately unemployable, idle and violent.

A number of liberal and pro-Roma groups, and some individual Roma, decided to bring legal proceedings against Siderov under Bulgarian discrimination law. They sought to have him prohibited from expressing these views in future. And they want him to apologise for having publicised them in the past. The action was unsuccessful. In essence, the court decided that Siderov, if intemperate, was not calling for discrimination against Roma people. Rather, he was demanding that the state treat wrongdoing by ethnic Bulgarians and Roma on an equal footing.

Appeals to the ruling failed up to the level of the Court of Cassation, Bulgaria’s Supreme Court. The objectors then went to the ECHR, which upheld their complaint last week. The same court also backed a separate but similar case made against Siderov by two Bulgarian Jews objecting to his past anti-Semitic comments and Holocaust denial.

You might wonder how this happened. The Roma objectors did not personally suffer in any way from Siderov’s comments. Nor were they complaining about any large-scale action: their case was that a single politician from a party with under 10 per cent of the vote had been allowed to spout bile without being silenced.

But human-rights lawyers think in a mysterious way. The ECHR said the objectors’ right to a private life (under Article 8 of the European Convention on Human Rights) had been infringed. It disagreed with the Bulgarian state’s refusal to suppress hateful speech and negative stereotyping, which the court said had affected the Roma ethnic group as a whole. Siderov’s rants were, it continued, stigmatising and prejudicial towards the Roma people and did not deserve protection as free speech – even though he is an elected politician. It follows from this that when the Bulgarian courts had failed to silence Siderov, the objectors’ human rights had been infringed.

No one sensible has much sympathy for Siderov, who is clearly not only a racist but also a nutty conspiracy theorist with some very nasty friends (including David Duke and convicted racist Ahmed Rami). But however much you dislike Siderov’s views, if you believe in free speech, this development is alarming for a number of reasons.

For one thing, it continues the ECHR’s dismal record of treating the right to free speech as a bit of an embarrassment. It sees speech as something to be carefully constrained and limited to what the court judges to be matters of social value. For example, in the past 20 years the court has sided fairly consistently with secretive celebrities against the press, saying that their human right to privacy overrides the rights of a curious media. It has denied the media’s right to tell the truth about these celebrities, and treated the press as a distasteful outgrowth of populism.

Secondly, in the Siderov case, the ECHR ruling actually went a great deal further than it has gone before. The court implied the existence of a full human right to have someone else’s speech abridged, even when it does not directly affect the person making the complaint. Like any human right, this one will presumably be immune to challenge through the democratic process.

In fact, the court’s own words leave no doubt that it intended to assert this right. The judges saw it as entirely unacceptable that Bulgarian courts had given ‘considerable weight to Mr Siderov’s right to freedom of expression’, and ‘play[ed] down the effect of those statements on the applicants as ethnic Roma living in Bulgaria’. Wow. Any free-speech traditionalist, who believes that the remedy for bad speech is more speech, should see this as a warning: as far as human-rights lawyers are concerned, you are on the wrong side of history.

Thirdly, the potential impact of this decision is huge. It involved the issue of race, but similar cases could easily centre around disability, religion, sexuality or gender. We may have to be prepared for claims by disability or trans activists, or religious fundamentalists, that their opponents deserve to be prevented from saying what offends them – and that the protection of their own human rights demands the silencing of others. On top of that, the ruling seems to demand limitations on speech based not on what was intended by the speaker, but instead on the likely effects of the speech.

Fourthly, this affair could not have come at a worse time for those coordinating opposition to planned attacks on free speech in the UK, such as the Scottish government’s Hate Crime Bill. These proposals, if enacted, would lead to an enormous extension of the state’s power over what we are allowed to say to and about each other. It is frankly terrifying that the Scottish justice secretary, Humza Yousaf, seems to think that by privileging certain interest groups and dictating what the rest of us are allowed to say about them, the government is ‘enhancing’ everyone’s human rights.

But there is one glimmer of hope. The more outrageous decisions of this kind that the ECHR produces, and the more publicity they get, the more people will come to realise that the ECHR, like the EU, is not for us. This is not to say that we should just get rid of human-rights laws. We should not. But we do have the right to demand that they have some kind of democratic legitimacy. The job of interpreting human rights needs to be taken away from the agenda-driven and increasingly illiberal ECHR, whose members are answerable only to a self-selecting, international human-rights freemasonry.

Andrew Tettenborn is a professor of commercial law and a former Cambridge admissions officer.

Picture by: Иван, published under a creative-commons licence.

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