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

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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.