The court considered that the right to freedom of religion under Article 9 included a right not to be seriously offended. Whilst the religious could not expect their beliefs to be exempt from all criticism (that’s generous):
“… the general requirement to ensure the peaceful enjoyment of the rights guaranteed under Article 9 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.”
“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.”
The court seems here to be trying, rather clumsily, to tread a delicate line between upholding the right of member states to criminalise “improper and abusive attacks” on objects of veneration and asserting that they have a duty to do so. So far it might just be possible to view the judgment as that of a cautious court wishing to give Austria – with its particular and very dark history of religious bigotry – a large “margin of appreciation,” the discretion, as it were, to make and apply its own laws in its own way.
Unfortunately, such a generous view of the decision does not really stand up, because later on the judges seem to come down firmly in favour of member states having a duty to have such laws. The court, it noted
“had stated many times that in the context of religion member States had a duty to suppress certain forms of conduct or expression that were gratuitously offensive to others and profane.”
“There you are,” the Islamists will say, and they are saying it now, “the top court in Europe says you have a duty to suppress profanity.”
Well, it’s not quite as bad as that, is it? After all the court said that only “certain forms of conduct or expression” must be suppressed. Nice, polite arguments are fine, as long as they are not gratuitously offensive.
But that’s the problem with policing free speech.
I make a polite but powerful contribution to debate.
You speak bluntly and perhaps a little bit offensively.
She is gratuitously offensive, has committed blasphemy and must be hanged, or at least fined and/or imprisoned.
The reference to Muhammad’s marriage to a child bride, it seems, was “an abusive attack on the Prophet of Islam.”
Why should that make it criminal?
“The Court notes that the domestic courts extensively explained why they considered that the applicant’s statements had been capable of arousing justified indignation, namely that they had not been made in an objective manner aiming at contributing to a debate of public interest, but could only be understood as having been aimed at demonstrating that Muhammad was not a worthy subject of worship (see paragraph 22 above). The Court endorses this assessment.”
The court’s grasp of theology here is as pitiful as its exposition of the law. Muslims do not worship Muhammad – only Allah can be worshipped – although of course they venerate him.
More to the point, is it really “necessary in a democratic society” to impose a prohibition on attacking the character of a medieval warlord because to do so might suggest he is “not a worthy subject of worship?”
The court thought that:
The issue before the court therefore involves weighing up the conflicting interests of the exercise of two fundamental freedoms, namely the right of the applicant to impart to the public her views on religious doctrine on the one hand, and the right of others to respect for their freedom of thought, conscience and religion on the other.
This is legal legerdemain. The right to impart one’s views about a religion is a right to freedom of expression, a right expressly protected by Article 10, as well as a right to “manifest” one’s religion, a right protected by Article 9. The “right of others to respect for their freedom of thought conscience and religion” is very much wider than the right actually set out by Article 9:
“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.”
It is one thing to give religious people the right to think, express and practise their religion, to manifest it, to worship where and how they wish, and so on. But that is completely different from insisting that others must respect their religion, in the sense of not insulting it. That is not a right given by Article 9, and nor should it be. The court should not have conducted any “weighing up” of conflicting rights. Neither the Convention nor any other coherent principle demands that religious sensibilities should insulate religion from criticism, including mockery or insult.
