The ECHR is an enemy of free speech
Strasbourg has ruled that a failure to censor offensive speech is a violation of ‘human rights’.

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In a depressingly predictable judgment, the European Court of Human Rights (ECHR) has essentially ruled that free speech stops where ‘hate speech’ begins. Earlier this month, it said that, where private actors engage in so-called hate speech, the state must take steps to suppress that speech – preferably by stiff criminal penalties. If a government tolerates ‘hate’ in the name of freedom, then apparently this can infringe the ‘human rights’ of those on the receiving end.
This ruling was the culmination of a case that began in 2014. That year, the winner of the Eurovision Song Contest was Austrian performer Conchita Wurst, a gay crossdresser. After the show, there was a lively press conference where the Armenian jurors admitted to having given Wurst minimal points because of the revulsion they felt for him. An Armenian newspaper called Iravunk backed the jurors. It attacked the ‘international homosexual lobby’, called Wurst ‘human waste’ and accused the ‘gay lobby’ of being an existential threat to Armenia. All very nasty stuff.
Despite a request to pull the article, similar ones followed. A group of six Armenian gay-rights activists then decided to sue Iravunk, saying it had infringed on their honour and reputation. The Armenian courts declined to intervene. This was, they said, colourful journalism protected by free speech. The activists then went to Strasbourg, where the ECHR was forthright in supporting the complaint. The ECHR decided that the Armenian government, by not penalising Iravunk, had failed to defend the activists’ rights to a private life and to protect them from discrimination. Where the state would ordinarily be obliged to protect free speech, in this instance, according to the ECHR, it was compelled to silence it.
What Iravunk printed was, of course, vile and hateful. But crude insults should not be considered a human-rights infringement. The ECHR’s decision does not strengthen human rights in the slightest. On the contrary, it trivialises them.
The ECHR was originally set up to prevent states from carrying out extreme actions that all decent people agree are outside the civilised pale – including torture, death squads, wholesale suppression of anti-government speech, and so on. Yet now it has effectively decreed that governments should protect their citizens from any and all unpleasant speech. That is not only an absurd expectation, but also in itself a clear infringement of a fundamental freedom – namely, freedom of speech. You may disagree with Iravunk’s homophobic screed, but disagreement must be allowed in a democratic society.
Unfortunately, arguments of this sort don’t impress ECHR judges, or the Council of Europe human-rights establishment that lies behind them. For many years, the ECHR has seen its job not so much as acting as guardian against truly shocking abuses of state power, but as gently nudging Europe to a ‘progressive’, soft-authoritarian future.
Indeed, on matters of press freedom it gets worse. As early as 1970, the Parliamentary Assembly of the Council of Europe made clear that it thought the tabloid press needed to be bridled. Journalists’ right to print factual information has been constrained just as the right to privacy has been strengthened. Now we see a similar dynamic in relation to opinion journalism – views that offend Euro-judges are treated as hate speech. Press freedom, the ECHR essentially ruled in the Iravunk case, should not extend much beyond what the court deems to be ‘responsible journalism’. Anything else deserves little, if any, legal protection.
This should worry us, especially as British courts will have to take account of this judgment. It will give unholy encouragement to government ministers who are looking for any excuse to extend curbs on the press. ECHR judges essentially think fruity tabloid opinions are fair game for state censorship. For them, only the comfortable worldview of The Times, the Guardian and Le Monde needs protection from a censorious state. The much more popular Daily Mail or Sun are seen as out of bounds.
The ECHR’s ruling marks yet another step towards the erosion of free speech, now under the Orwellian guise of protecting our human rights.
Andrew Tettenborn is a professor of commercial law and a former Cambridge admissions officer.
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