Correlation between Abuse and Limitation of the Freedom of Expression and Incitement to Hate in Relation to Terrorism

This essay analyzes the relationship between freedom of expression and incitement of hate with respect to terrorist activities. It examines the reasoning behind some of the decisions of the European Court of Human Rights and the scope of incitement to hatred/violence vs. freedom of expression.

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1.0 Introduction
At the onset, it is worth noting that as per the European Court of Human Rights in Cylan v urkey1
freedom of expression is one of the most vital rights that foster democracy.2 It is a right that
promotes the change and development of an individual and the society at large. Article 10
paragraph 1 of the European Convention on Human Rights guarantees every individual the
freedom of expression. It also prohibits the state from granting one a license for broadcasting
information or ideas.3 However, the right to freedom of expression has a profound interaction
with incitement of violence and hate. This interaction has been manifested by paragraph 2 of
Article 10 of the European Convention on Human Rights which provides that the right to
freedom of expression shall be applied and enforced in accordance wit the restrictions,
formalities, conditions and penalties that entrenched in any law. The restrictions are applied to
facilitate the prosperity of a democratic society, in the interest o national security, to safeguard
public health and safety, for public safety and in the prevention of crime in society. More
particularly, there restrictions have been applied to prevent the spread of terrorism.4 This essay
will focus on the relationship between the freedom of expression and incitement of hate with
respect to terrorist activities. In a bid to divulge the polarity between freedom of expression and
incitement of hatred and violence it will analyze the reasoning lying embedded in some of the
decisions of the European Court of Human Rights.
2.0 Scope of Incitement to Hatred/Violence vs. Freedom of Expression
The European Court of Human Rights in Stomakhin v. Russia5 held that in determining the scope
of hate speech and incitement of hate and violence member states must refrain from taking any
measure that amounts to excessive interference with the freedom of expression guaranteed under
Article 10 of the European Convention on Human Rights. This case involved a publication of
texts which according to the prosecution of the member state, were related to extremist activities,
incitement of hatred violence and encouraging terrorism. However, the court insisted that a state
must also take into account the inherent right to equal dignity for human beings. In contrast, it
1 [1999] ECHR 44
2 Bakircioglu, Onder. "Freedom of expression and hate speech." Tulsa J. Comp. & Int'l L. 16 (2008): 1.
3 Article 10 paragraph 1 European Convention on Human Rights
4 Goldberg, David. "Europe bans terrorist media: What sort of antidote to poisonous voices." Cardozo J. Int'l &
Comp. L. 17 (2009): 445.
5 [2018] ECHR 410

also noted that Article 10 should also be interpreted to imply the need to prevent any form of
expressions that may insult or shock people or disturb the peaceful existence of other individuals.
It is a well established fact in law as was espoused by the European Court of Human Rights in
Gunduz v. Turkey6 that it is necessary for any democratic society to make concerted efforts to
prevent the spread of any expressions that may incite violence or hate, and support violence and
intolerance. In view of the above, the courts and states are faced with a taxing task of carefully
balancing between the freedom of expression under Article 10 and the state obligation to fight
forms of extremism such as terrorism.
For the court to establish the scope of the Incitement to Hatred/Violence in relation to terrorism
the criterion used to distinguish between freedom of expression under the Article 10 and
incitement to violence and hate, it takes into account the following factors;
a) The Context, Nature and Wording of the Expression
b) Impact of the Statement/ Expression
c) The status the Author of Expressions
2.1 The Context, Nature and Wording of the Expression
The European Court of Human Rights in Centro Europa 7 Srl And Di Stefano v Italy7 held that
the must be ale to make an objective assessment of the statements made in the expressions so as
to classify the statements and consider if they amount incitement of hate, a glorification of
violence and extremism and or a legitimate exercise of freedom of expression. This implies that
one must avoid making a blanket assessment of the whole statement In Stomakhin v. Russia8 the
court held that all the statements alleged to be amounting to incitement of hate/ violence and
extremism activities such as terrorism must be taken into account according to the context in
which they expressed. Therefore, the court must consider the disparate meanings of all
statements, the audience targeted and whether the audience that actually received the
information.9
6 [2003] ECHR 652
7 [2012] ECHR 974
8 Supra n 5
9 Flauss, Jean-François. "The European Court of Human Rights and the freedom of expression." Ind. LJ 84 (2009):
809.

2.2.1 Criticisms of the Government and Incitement of Violence and Hate
The European Court of Human Rights in Stomakhin v. Russia10 illuminated the fact that there is
need to carefully find the thin line that distinguishes expressions that incite violence, hate and
terrorism and expressions that are mere criticism of a governments activities. It is instructive to
note that there are cases where the government declares state of emergencies that are
indeterminately long for fear of violence, hate and extremism activities such as terrorism. In such
cases the government may undertake to flagrantly violate the freedom of expression to prevent
violence, hate or terrorism. The European Court of Human rights in Mehmet Hasan Altan v.
Turkey11 emphatically held that a contracting party state should not limit the right to engage in
political debate and consequently freedom expression, even if there is a threat to national
security. It is worth noting in political debates play a significant role in putting the wheels of
democracy in motion. Against this backdrop, in Şahin Alpay v. Turkey12 the court held that the
government must demonstrate positive efforts to safeguard the tenets of democracy. The court
added that the contracting state party has an obligation to safeguard its democratic and
constitutional order and must thus not overlook political debates, political comments and other
forms government criticism.
2.1.2 Mere Spread of Unsubstantiated Extremism Propaganda
The European Court of Human Rights in Medžlis Islamske Zajednice Brčko and Others v. Bosnia
and Herzegovina13 held that although the wording of a particular statement may appear to
amount to incitement of terrorist activities the court must undertake to establish that the source of
the information is clear and the content is authentic. A deep understanding of Article 10 brings to
force the idea that information given in exercise of freedom of expression must be considerably
accurate and reliable. The court has to make a deliberate effort to establish the truth about the
information contained in the statement and its ability to materialize. This implies that
information about terrorist activities may not make its author liable for incitement of violence
and unable to rely on the right to freedom of expression if the information/ statement amounts to
a mere propaganda.
10 Supra n 5
11 [2018] ECHR
12 [2018] ECHR
13 [GC], no. 17224/11, ECHR 2017.

The European Court of Human Rights in Leroy v. France14 held that criminal sanctions should be
imposed on people who spread information that appears to be glorifying terrorism if only there
are reasonable grounds to believe that the terrorist attacks even when fashioned as mere
propaganda will actually be carried out by the perpetrator of the information. In Leroy the court
found that cartoon expressions that glorified the terrorism act during the 911 attack in that
occurred in United States do not amount to an exercise of freedom of expression but are an
outright incitement to terrorism, violence and extremism. The European Court of Human Right
in Roj TV A/S v. Denmark15 declined to find that the Televisions new that repeatedly incited
people to take part in war and encouraged people to enroll as members of the guerrilla
organization was tantamount to a mere propaganda representing the interest of the PKK
terrorists. The court found that the new coverage of the TV Company was amounted to a
incitement of violence and terrorism.16
2.1.3 Intention of the Expression
In Erdal Taş v. Turkey17 the European Court of Human Rights averred that the nature and
meaning of the expression(s) must manifest an explicit intention to idealize and glamorize the
violent or extremist cause. The court in Gunduz v. Turkey18 had also earlier held that an actual
intention to make people hate, become violent and harbor extremist belief in respect of a
particular cause must be vivid in the expressions. In line with the requirement of intention the
court is also obligated to determine the rationale behind the impugned expressions.
2.2 Impact of the Statement/ Expression
With regard to freedom of expression under article 10 and justification of violence and hate the
court in Perinçek v. Switzerland19 thought its grand chamber must be satisfied the statement or
expressions are likely to give rise to devastating and harmful impacts. For the expression to
amount to an incitement of violence and hate it must give rise to an imminent danger. In Leroy v.
14 [2008] ECHR
15 [2018] ECHR
16 Voorhoof, Dirk. "European Court of Human Rights, Roj TV A/S v. Denmark." IRIS (ENGLISH ED. ONLINE) 7 (2018).
17 (2006)ECHR 261
18 Supra n 6
19 [2015] ECHR

France20 the court held that it is prudent to assess the impact of the statement, more particularly,
in areas that are politically sensitive.
2.2.1 Threat to Democratic and Constitutional Order of a State
Although the European Court of Human Rights appears to promote extremism and violence by
allowing political debates and comments that may incite hate and violence, it has also shown that
the freedom of expression under Article 10 cannot be invoked incase the political debates and
comments have material impact on the national security and democratic order. It is well a well
settled principle in law that any action or conduct that threatens the democratic order of society
or state is utterly unlawful.21 The European Court of Human Rights has to determine if the
impact of the expression could undermine the democratic and constitutional order of a state.22
According to Morice v. France23 the information contained in the expressions must be able to
engender a situation where a democratic society will be absent. On the other hand the court in
Bédat v. Switzerland24 has held any in information published in exercise must be ‘necessary in a
democratic society’. Therefore, in determining whether, certain expressions could possibly
undermine the democratic and constitutional order for a country, the European Court of Human
Rights must establish if the expressions were necessary tool for promoting democracy. In
Erdoğdu v. Turkey25 the court held that the term ‘necessary’ connotes the existence of a pressing
social need.
2.3 The status the Author of the Expressions
It appears that according to the European Court of Human Rights not very person is ale to incite
violence, hate or extremism activities. In Fatullayev v. Azerbaijan26 the author of the expressions
was a mere journalist and was accused of incitement of hate, violence and terrorist activities
The European Court of Human Rights found that the information contained in his articles did
not amount to incitement of terrorist activities hence there was violation of freedom of
20 Supra n 13
21 Weinstein, James, and Ivan Hare. "Extreme Speech and Democracy." (2009).
22 Kiska, Roger. "Hate speech: A comparison between the European Court of Human Rights and the United States
supreme court jurisprudence." Regent UL Rev. 25 (2012): 107.
23 [2015] ECHR
24 [2016] ECHR
25 [2000] ECHR
26 [2010] ECHR 623

expression under Article10. The court reasoned that the accused person, in his capacity at the
time he was exercising his freedom of expression through the publication of the article was not in
a capacity to exercise any measure of control and influence over the unsubstantiated set of facts
about certain activities involving terrorism. In Sürek (no. 1) v. Turkey27 the European Court of
Human Rights took to the view that a person is regarded to being able to incite terrorism if due to
his status go close to the target audience and recruits terrorists who will actively take part in
terrorist activities. It can therefore be conceded that one an individual spreading information
about terrorism which on the face it appears to be incitement for violence and hate will be held to
e lawfully exercising his freedom of expression under Article 10 unless it is evinced that he is in
capacity to cause the actual occurrence of the terrorist activities.28
It should be borne in mind that the Author of the information will be held liable for incitement
of violence and thus not be to invoke his freedom of expression under Article 10 he has the
capacity to highly influence actual terrorist or violent activities trough actively promoting the
terrorist activities even without physical presence in the battle zones. In Roj TV A/S v. Denmark29
actions of a popular TV Company, manifested through its programs was held to amount to
incitement of violence and promotion of terrorist activities due it capacity as a media company
with wide reach and its deliberate and repetitive actions.
3.0 Correlation between Abuse and Limitation of the Freedom of Expression and
Incitement to Violence and Hate.
One cannot cast aspersions on the fact that that that freedom of expression guarantees under
Artile10 is not absolute. The European Convention Human Rights by way of Article17 prohibits
the abuse of freedom of expression through hate speech.30 It bears any act or conduct that enjoys
the protection of the freedom of expression under Article 10 but violates and abuses the inherent
values of the convention will no longer enjoy that protection by virtue of Artice17.31 The
European Court of Human Rights in Roj TV A/S v. Denmark32 found that the actions of the TV
27 [1999] ECHR
28 Seurot v. France [2004] ECHR
29 Supra n 14
30 Keane, David. "Attacking hate speech under Article 17 of the European Convention on Human Rights."
Netherlands quarterly of human rights 25, no. 4 (2007): 641-663.
31 Oetheimer, Mario. "Protecting freedom of expression: the challenge of hate speech in the European Court of
Human Rights case law." Cardozo J. Int'l & Comp. L. 17 (2009): 427.
32 Supra n 14

company did no qualify to enjoy the protection under Article 10 since they flagrantly violated the
inherent values of the convention. The court in Roj TV further held that the action of the TV
Company amounted to incitement to violence to promote terrorist activities which was an
outright infringement of Article 17 of the convention. It can therefore be conceded that the
European Court of Human Rights does not condone actions or conduct amounting to incitement
to violence or the with the objective of supporting terrorism. The court arrived at this position as
a result of the application of the Article 17 that prohibits abuse of any right in the convention.
While it clear that every human being should enjoy the freedom of expression as provided under
Article 10, one must be careful not to abuse such protection as Article 17 will cease that
operation of Article10 upon abuse.33 The European Court of Human Rights in W.P. and Others
vs Poland34 held that one of the rationales behind Article 17 is to mount an obstacle the
totalitarian rule which is commonly perpetrated by individuals who a quest for personal interest.
The meaning that can be derived from the court’s reasoning in W.P. and Others vs Poland35 is
that terrorist groups and people who incite violence and hate with a view promoting the dealings
of terrorist are totalitarians who fight for a selfish interest in the guise of exercising their right
under Article 10 and should thus be stopped. Typically, the totalitarian doctrine is inconsistent
with the innate precepts of democracy and human rights. This is attributed to the fact that the
totalitarian doctrine creates a fertile ground for incitement to violence and hate and abuse of the
freedom expression. Therefore it falls within the exception under Article 17.
Religious hate will only amount to an abuse of the freedom of expression pursuant to Article 17
if the nature, context and content of the hate speech give rise to an incitement to hate or
violence.36 This position is similar to the reasoning of the European Court of Human Rights in
Norwood v. United Kingdom37 where the court fund that a cartoon drawn on a magazine in UK
amounted to religious hate speech since it depicted another religion as being associated with acts
of terrorism. The court noted that this amounted to incitement of hate speech and was therefore
33 Cannie, Hannes, and Dirk Voorhoof. "The abuse clause and freedom of expression in the european Human Rights
convention: an added Value for Democracy and Human Rights Protection?." Netherlands Quarterly of Human
Rights 29, no. 1 (2011): 54-83.
34 [2004] ECHR
35 Supra n 34
36 Bleich, Erik. "Free speech or hate speech? The Danish cartoon controversy in the European legal context." In
Global Migration, pp. 113-128. Palgrave Macmillan, New York, 2012.
37 [2004] ECHR

an abuse of rights pursuant to Article 17 that should not be accorded the protection envisaged in
article 10.
By dint of Article 10 paragraph 2 of the Convention the court has a duty to establish if there is
any interference of the freedom of expression as envisaged in paragraph 1. However, if I find
that the interference is present it ill only permit it to the extent that it allowed by law, if it is
targeted at achieving a legitimate aim and if it is in the best interest of a democratic society that
the aims be attained. The European Court of Human Rights in Stoll v. Switzerland 38 held that a
legitimate aim is achieved if the court through a restrictive interpretation of the Article 10
paragraph 2 of the convention finds that there is absolute necessity to safeguard the national
security and safety o the public. In Öztürk v. Turkey39 the held that an action will be held to be a
legitimate aim if it is focused on combating terrorisms and reducing the possibility of the
occurrence of more violence. This implies one cannot invoke the freedom of expression if its
restriction can be justified through a legitimate aim.
4.0 Conclusion
It is a plausible conclusion that the European Court of Human Rights has striked a carefully
balance in bring to force a near-accurate contrast between freedom of expression under Article
10 of the convention and incitement of hate and violence. This paper has revealed that although
the court anyone escape liability for incitement to violence and hate by invoking the freedom of
expression under Article 10 the court also has a robust discretion to prevent the protection of
Article 10.
References
Bakircioglu, Onder. "Freedom of expression and hate speech." Tulsa J. Comp. & Int'l L. 16
(2008): 1.
38 [2007] ECHR
39 [ 1999] ECHR

Bleich, Erik. "Free speech or hate speech? The Danish cartoon controversy in the European legal
context." In Global Migration, pp. 113-128. Palgrave Macmillan, New York, 2012.
Cannie, Hannes, and Dirk Voorhoof. "The abuse clause and freedom of expression in the
european Human Rights convention: an added Value for Democracy and Human Rights
Protection?." Netherlands Quarterly of Human Rights 29, no. 1 (2011): 54-83.
European Convention on Human Rights
Flauss, Jean-François. "The European Court of Human Rights and the freedom of expression."
Ind. LJ 84 (2009): 809.
Goldberg, David. "Europe bans terrorist media: What sort of antidote to poisonous voices."
Cardozo J. Int'l & Comp. L. 17 (2009): 445.
Keane, David. "Attacking hate speech under Article 17 of the European Convention on Human
Rights." Netherlands quarterly of human rights 25, no. 4 (2007): 641-663.
Kiska, Roger. "Hate speech: A comparison between the European Court of Human Rights and
the United States supreme court jurisprudence." Regent UL Rev. 25 (2012): 107.
Oetheimer, Mario. "Protecting freedom of expression: the challenge of hate speech in the
European Court of Human Rights case law." Cardozo J. Int'l & Comp. L. 17 (2009): 427
Voorhoof, Dirk. "European Court of Human Rights, Roj TV A/S v. Denmark." IRIS (ENGLISH
ED. ONLINE) 7 (2018).
Weinstein, James, and Ivan Hare. "Extreme Speech and Democracy." (2009).
Case Laws
Bédat v. Switzerland [2016] ECHR
Centro Europa 7 Srl And Di Stefano v Italy [2012] ECHR 974
Cylan v urkey [1999] ECHR 44
Erdal Taş v. Turkey (2006)ECHR 261
Erdoğdu v. Turkey [2000] ECHR
Fatullayev v. Azerbaijan [2010] ECHR 623
Gunduz v. Turkey [2003] ECHR 652
Leroy v. France [2008] ECHR

Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11,
ECHR 2017.
Mehmet Hasan Altan v. Turkey [2018] ECHR
Morice v. France [2015] ECHR
Norwood v. United Kingdom [2004] ECHR
Öztürk v. Turkey [ 1999] ECHR
Perinçek v. Switzerland [2015] ECHR
Roj TV A/S v. Denmark [2018] ECHR
Şahin Alpay v. Turkey [2018] ECHR
Seurot v. France [2004] ECHR
Stoll v. Switzerland [2007] ECHR
Stomakhin v. Russia [2018] ECHR 410
Sürek (no. 1) v. Turkey [1999] ECHR
W.P. and Others vs Poland [2004] ECHR