A thought experiment: suppose I wanted to transform the European Convention on Human Rights into a vehicle for state regulation of speech, how would I go about it?
At first sight it should not be possible. Article 10 guarantees everyone the right of freedom of expression. Granted, Article 10 is not an absolute right: a state can legitimately interfere with someone’s Article 10 right if it first overcomes a series of hurdles. The interference must be “prescribed by law” (meaning that it must be publicly accessible and sufficiently clear and precise). It must then be necessary for a legitimate public purpose and be proportionate.
Critics may question the robustness of those safeguards, especially in cases where the Article 10 right falls to be balanced against other Convention rights such as Article 8; but nevertheless Article 10 does stand as a bulwark - even if some might say a leaky one - against arbitrary and overreaching state interference with freedom of expression.
No, if I am successfully to outflank Article 10, or even turn it against itself, my hypothetical project will need more tools. It turns out that there are many to choose from.
To begin, here are some that relate to the Convention itself, either expressly or as interpreted by the Strasbourg Court (ECtHR).
Devil-speech Article 17 of the Convention is entitled “Prohibition of abuse of rights”. It provides that no State, group or person has a right to engage in any activity or perform any act aimed at the destruction of any Convention right or freedom; or at its limitation to a greater extent than provided for in the Convention.
ECtHR caselaw has long held that Article 17 can exclude someone’s Article 10 freedom of expression right in its entirety. Devotees of A Man for All Seasons will recognise that as denying the Devil the benefit of law; literally so, since applying Article 17 abrogates the Article 10 “prescribed by law” threshold condition. As such, Article 17 legitimises arbitrariness. It is a rule of law self-destruct button.
It also, by the by, creates a paradox: if Article 17 allows a rule to be arbitrary, how – other than by ensuring that the rule is clearly and precisely delineated – could we stop it applying to speech that should be protected by Article 10?
Unsurprisingly, given its far-reaching effects, the ECtHR has said that Article 17 is to be applied only “on an exceptional basis and in extreme cases” (Perincek GC (2015) [114], Paksas GC (2011) [87]). In Article 10 cases it should be resorted to only if it is immediately clear that the impugned statements sought to deflect Article 10 from its real purpose by employing the right of freedom of expression for ends clearly contrary to the values of the Convention (Perincek GC (2015) [114]).
The general purpose of Article 17, derived from the concept of defensive democracy (Zdanoka GC (2006) [100], Birsan (2016) [68]), is to prevent individuals or groups with totalitarian aims from exploiting Convention principles in their own interests (Ayoub (2020) [92], Paksas GC (2011) [87], Norwood (2004), Glimmerveen (Commission) (1979) [p.195]).
Nevertheless, Article 17 has been deployed not only against totalitarian ideologies or political movements. It has also been applied in cases involving various kinds of morally or otherwise repugnant speech: Holocaust denial, antisemitism, xenophobia, supporting war crimes, support of Nazi policies, and others. In doing so the Strasbourg court occasionally expresses itself in terms of broad values, sometimes based on the Convention’s Preamble. A few examples:
“Speech that is incompatible with the values proclaimed and guaranteed by the Convention” (Roj TV (2018) [31], Delfi GC (2015)); “the fundamental values of the Convention, as expressed in its Preamble, namely justice and peace” (Garaudy (2003), cf M’Bala (2015) [39], Paksas GC (2011) [88]); “the text and spirit of the Convention” (Paksas GC (2011) [88], (Garaudy (2003), Glimmerveen (1979) [p.196]); “peaceful settlement of international conflicts and sanctity of human life” (Hizb ut-Tahrir (2012) [74]); “tolerance, social peace and non-discrimination” (Belkacem (2017) [33]).
In principle Art 17 can be invoked not only to deny private persons their Art 10 rights, but also against actions of states (e.g. Birsan (2016) [71]). However, it has never successfully been relied upon to counter state action.
Parenthetically, the UK government in its ECHR memorandum for the then Online Safety Bill (now the Online Safety Act 2023), referring to Article 17, commented that “An appreciable amount of the content affected by the application of the safety duties will be of a nature which does not attract the protection of Article 10”.
The broader the interpretation that I can place on Article 17, the better for my hypothetical project.
No-value speech Article 10 is capable of protecting speech that is offensive, shocking or disturbing (Handyside (1976) [49]). However, the ECtHR has also held that speech amounting to wanton denigration, where the only intention is to insult, does not qualify for protection under Art 10. One avowed rationale is that such speech does not impart information or ideas (Rujak (2012) [30]).
This doctrine is another rule of law self-destruct button, with the same exclusionary effect as Article 17. Like Article 17, the doctrine is said to be applicable only in very rare and exceptional circumstances (Mesic (2022) [33]). It is said that a clear distinction must be made between criticism and insult, requiring a careful examination of the context in which the offending, insulting or aggressive words appear (Gaspari (2023) [27]). It may also be relevant to consider whether the punishment was appropriate (ibid).
The wider that I can cast the No-value speech net, the better for my project. The Rujak rationale holds promise.
Low-value speech When it comes to evaluating the necessity and proportionality of State measures under Article 10(2) the ECtHR tends, albeit not in a formal hierarchy, to value some kinds of speech more highly than others. Political speech and debate on questions of public interest are top of the list, meriting correspondingly stricter scrutiny of state-imposed restrictions (TV Vest (2008) [59]). At or near the bottom (assuming that it survives Article 17) is hate speech. The lower the value that I can attribute to speech, the greater the chance of passing scrutiny under Article 10(2).
Positive obligations Qualified Convention rights such as Article 10 are first and foremost negative: they require States to abstain from arbitrary or over-reaching action. Such negative Convention obligations apply automatically. However, the Strasbourg Court may find that in a particular factual situation a positive state obligation to secure a Convention right exists, including on occasion horizontally as between private persons. Indeed, Article 1 of the Convention provides:
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”
Nevertheless, positive obligations are the exception, not the norm; horizontal positive obligations even more so. However often the ECtHR may find that a positive obligation exists (and there are many examples), the prior question of existence is still to be determined on a case by case basis. The ECtHR has declined to develop a general theory of positive state obligations under the Convention (Plattform ‘Ärzte für das Leben’ (1988) [31]), including horizontally (Tierfabriken (2001) [46]).
Positive obligations are a potentially powerful tool for my project, since they can be framed to suit my policy agenda and weighed against Article 10 rights. If a positive obligation is in play, then not only may a Member State be justified in interfering with someone’s Article 10 rights, it is required to interfere: otherwise it would be in breach of the Convention.
If I can emphasise Member State positive obligations over negative obligations, or treat positive obligations as if they are the rule not the exception, that would assist my project.
A common objection to expanded positive obligations is that, since they require the Court to consider what a State must provide by way of law, they turn human rights judges into legislators. That would suit my policy project nicely.
Practical, effective rights Rights that can be exercised only in theory are not rights at all. The Strasbourg Court concerns itself with securing practical and effective, not theoretical or illusory, rights (e.g. Artico (1980) [33]). The principle may be invoked to justify placing positive obligations on the state, including obligations of a social or economic nature (Airey (1979) [26]).
The doctrine is reminiscent of the remark made by the Victorian judge Sir James Mathew that “in England, justice is open to all—like the Ritz Hotel.” Indeed, one of the ECtHR’s seminal applications of the doctrine was to require Member States to provide free legal aid to impecunious civil litigants (Airey).
Although the ECtHR may have been cautious in its invocation of the effectiveness principle to justify imposing substantive social obligations on the state, it is nevertheless potentially a powerful tool. I might seek to deploy it in support of a positive state obligation to create a safe environment for freedom of expression: if I cannot speak safely, my ability to speak is chilled and so the right is illusory. The broader the interpretation that I can put on safety – ultimately, if I can characterise someone else’s speech as unsafe – the better for my project.
Duties and responsibilities Article 10(2) of the Convention sets out a list of reasons that may justify a state in abridging a person’s Article 10 right to freedom of expression. The rationale is stated to be that the exercise of that freedom “carries with it duties and responsibilities”.
That comes into play only at the stage of considering whether a Member State’s restriction on someone’s freedom of expression is justified. It does not create a self-standing principle which limits ab initio how someone is able to speak. In the words of the Dissenting (but on this point, unimpeachable) Opinion of Judges Sajó and Tsotsoria in Delfi:
“The protection of freedom of expression cannot be turned into an exercise in imposing duties. The “duties and responsibilities” clause of Article 10§2 is not a stand-alone provision: it is inserted there to explain why the exercise of the freedom in question may be subject to restrictions, which must be necessary in a democratic society. It is only part of the balance that is required by Article 10§2.”
Fortunately for my project, the phrase can readily be taken out of context and pressed into service to support general propositions about how speakers should behave.
Vibe of the Convention The Convention consists of an enumerated series of rights. For my thought experiment I could distil some high level values – the vaguer and more abstract the better – from Convention rights and Strasbourg caselaw (again, the Preamble and Article 1 are always useful).
Then cite the readiness of the Strasbourg Court to do that, even at the most abstract level: its ‘meta-teleological’ approach (e.g. Soering (1989) [87], interpretation has to be “consistent with the general spirit of the Convention”). In the words of Dennis Denuto in The Castle, “It’s the vibe of the thing”.
Finally, deploy said distilled general values in support of my policy proposal. For example:
“Article 10 of the Convention treats political speech and democracy as important. So does my policy proposal that every voter should be required to watch a televised political debate. Therefore my proposal is grounded in the Convention.”
Voila! I have demonstrated that Article 10 not only permits, but supports, compelled listening. In reality something more sophisticated than an obviously invalid syllogism would be needed. That achieved, my policy proposal can bask in the Halo Effect of association with the Convention.
Person to person extrapolation The Convention is addressed to Member States. It places obligations on Member States. The rights that it confers on private persons are rights against Member States. It does not create any Convention rights that a private person can enforce against another private person. The Convention places no obligations on private persons. A private person cannot, in juridical terms, infringe another private person’s Convention right. Some may wish it were otherwise, but it is not.
The ECtHR has, however, held that, exceptionally, it may require a state to create rights and obligations as between private persons in its domestic law. This is the horizontal positive obligation. But the Convention obligation remains that of the state. If a Member State fails to create those domestic law rights and obligations, the affected person’s Convention remedy is against that state.
Nevertheless, it is commonplace to talk about people affecting other people’s ability to exercise their Convention rights, or of people interfering with or even infringing other people’s Convention rights. The resulting conceptual confusion is grist to my mill.
Beyond the specifics of the Convention and ECtHR jurisprudence, a variety of logical and linguistic devices could assist my hypothetical project. Here is a selection.
Generalise Take a limited exception or proposition, generalise it (the more high level and abstract, the better) and suggest that it is a rule of general application. This can lead to:
Rule-exception inversion Qualify the rule to such an extent that the exception eviscerates the rule.
Context-strip A close relation of Generalise. Take a word or phrase from the Convention or Strasbourg caselaw, divorce it from its specific context and deploy it in support of some unrelated proposition.
Generalising from the factual context of a judgment is not in itself illegitimate. It is an accepted, even essential, part of some legal reasoning. We would have no common law if principles could not be extracted from a cumulative accretion of fact-specific cases and applied by analogy in the next case. However, as a species of inductive reasoning such generalisation tends to be conducted incrementally and cautiously, with emphasis on distilling the reasons – those which may bind a future court by way of precedent – that necessarily underpin the previous decision.
Strasbourg judgments are specific to their facts and the Court has no formal doctrine of binding precedent. Fortunately for my project, the Court sometimes adopts a declamatory style in which newly minted principles are formulated as free-floating abstractions.
Divide by zero Remember those mathematical tricks that seemingly proved a self-contradiction? The secret was a division by zero hidden somewhere in the equation. The linguistic equivalent is to insert an undefined, infinitely malleable term into my proposition of law. That done, the possibilities for deriving conclusions are also infinite.
Destroy the village in order to save it I might argue that “Freedom of speech is precious and the state must do whatever it can to preserve and encourage it.” Conceptually, that rests on framing freedom of speech as a cherished value (Vibe of the Convention) and posits a positive obligation on the state to protect that value. It could provide my hypothetical project with potential avenues for requiring the state to interfere with freedom of expression (as a Convention right) under the banner of securing freedom of expression (as a value): e.g. those who attack freedom of speech should not be allowed to threaten it; no one should be permitted to speak in a way that might deter someone else from speaking; anyone who speaks irresponsibly undermines freedom of expression.
In the context of broadcast licensing and regulation the ECtHR has developed the related doctrine of a Member State’s positive Article 10 obligation to guarantee effective pluralism (a value that the Court has identified as essential to a democratic society). That can include imposing restrictions on freedom of expression aimed at enabling diversity of political opinion and enhancing the free-speech interests of others (NIT SRL v Moldova (2022)). That could be fertile ground for my project.
Remember Lord Denning. Lord Denning was a master of taking heterodox positions and subsequently citing himself as precedent. Following his example, by repetition I can bootstrap my way to orthodoxy.
Muddy the waters Submerge all the above in a swell of shifting meanings, vagueness and ambiguity.
Halo effect The opportunity for my policy proposal to gain credibility and authority by association with the Convention.
Coming soon: a case study.
No comments:
Post a Comment
Note: only a member of this blog may post a comment.