A Case Study on M'Bala M'Bala v. France
ECtHR application no. 25239/13
by Yoona Song Spring 2019
The case M'Bala M'Bala v. France raises key questions on freedom of expression as a matter of hate speech. While democratic society values freedom of expression as a basic individual right, this principle should be able to prevent “all forms of expression which spread, incite, promote or justify hatred based on intolerance” (ECHR Factsheet, 2019). This article will question what, exactly, constitutes hate speech, in comedy, and, more importantly, where the line should be drawn between freedom of expression and hate speech.
“Dieudonné” M'Bala M'Bala was ultimately convicted for his negationist and revisionist opinions regarding minorities and, in particular, Jewish peoples. Dieudonné, a French comedian, had been engaged in a number of political activities, in the past, that led to his arrest, thirty-eight times, for violating French hate speech law. In particular, the case highlighted one particular incident. On 26 December 2008, in Paris, Dieudonné invited the scholar, Robert Faurisson, to his comedy show. Faurisson had formerly faced a number of convictions, in France, for his negationist views toward Jewish groups: namely, his denial of the existence of gas chambers and of the extermination of Jews in concentration camps. Faurisson was notorious for avidly denying the occurrence of the Holocaust and for publishing controversial articles questioning the authenticity of the Diary of Anne Frank. During the show, Dieudonné invited Faurisson to the stage to award him a "prize for unfrequentability and insolence," which entailed the presentation of a three-branched candlestick resembling a Jewish menorah. Faurisson received the candle from an actor wearing blue-striped pajamas with a stitched yellow star, reminiscent of the clothing worn by Jewish deportees during the Holocaust. Audience members, religious leaders, public officials, and anti-Semitic groups raised concern over this publicized gesture, alleging that it was intended as an affront by M'Bala M'Bala against the Jewish community.
French police recorded the incident and subsequently arrested Dieudonné for his involvement. Later, on 27 October 2009, the Paris tribunal de grande instance charged Dieudonné on the count of "public insults directed at a person or group of persons on account of their origin [...] to an ethnic community" (ECHR Factsheet, 2019). The judges ruled that this performance's offensive scene could not be considered entertainment, but was rather, a political meeting "which, under the pretext of comedy, promoted negationism through the key position given to Robert Faurisson's appearance and the degrading portrayal of Jewish deportation victims" (ECHR Press, 2015). The court also found that Dieudonné's act could not be justified under the pretext of comedy, ruling his caricature and satire was, "deliberately provocative or vulgar in nature", and, according to the French Constitution, the right to use humor is restricted to respect human dignity. In this case, the judges stated that "the permissible limits of the right to humor had been crossed to an excessive degree". The French Court subsequently fined Dieudonné ten thousand Euros. On 17 March 2011, the Paris Court of Appeals upheld the judgment; however, the Court of Cassation dismissed Dieudonné's appeal on 16 October 2012. M'Bala M'Bala v. France resulted in the conviction of Dieudonné for his negationist and revisionist opinions regarding minorities, particularly Jewish peoples.
ECtHR Decision Overview
The European Court of Human Rights (ECtHR) presented the case, M'Bala M'Bala v. France, on 10 April 2013. Dieudonné denounced his conviction for insulting Jewish groups, in public, by citing the European Convention on Human Rights’ (ECHR's) Article 7: no punishment without law; and Article 10: freedom of expression. M'Bala M'Bala argued that his satire was devoid of defamation or insult (European Court of Human Rights). However, the Court ruled that the applicant could not be protected under Articles 7 and 10. The Court confirmed that the performance had highly anti-Semitic content, as Dieudonné had paid tribute to Faurisson, who was well known for his negationist views, by awarding him a "prize". Article 10.2 of the Convention indicates that the exercise of freedom of expression "may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary for a democratic society, [...] for the protection of the reputation of the rights of others." In this case, the Court viewed that Dieudonné cannot claim the right to freely express his ideas because his performance revealed “hatred and anti-Semitism” (Global Freedom of Expression). Moreover, the Court agreed with the French domestic courts that the show appeared to be a political gathering, rather than mere entertainment. The Court raised the point that the applicant had previously been engaged in controversial political activities and convicted for racial insult. Moreover, the Court agreed with the Court of Appeal that the show appeared to be a political gathering, rather than mere entertainment. Article 10.2 indicates that the exercise of freedom of expression "may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary for a democratic society, [...] for the protection of the reputation of rights of others." The Court confirmed that the performance had highly anti-Semitic contents as Dieudonné had paid tribute to Faurisson, who was well known for his negationist views, by awarding him a "prize". Therefore, the applicant could not be protected under Article X because the demonstration of anti-Semitism and hatred toward a particular religion do not fall into categories in which freedom of expression can be protected.
Furthermore, the Court ruled that Dieudonné was not entitled to the protection of Article 17 of the Convention. Article 17 on the prohibition of abuse of rights indicates that no individual possesses the right to destroy another’s rights and freedoms. Dieudonné's show could be considered an attack, according to people of Jewish origins, because anti-Semitic remarks were cheered by the audience both during and after the controversial awards ceremony, in response to the program's content. Therefore, the Court ruled that Dieudonné’s demand for the protection under Article 10 is inadmissible because the applicant's interpretation of Article 10 ran counter to the values of the Convention.
Freedom of Expression
"The Right of all members of society to form their own beliefs and communicate them freely
to others must be regarded as an essential principle of a democratically organized society."
- Thomas I. Emerson
The right to freedom of expression is a necessary value for the development of society and for the protection of basic human rights. The origin of the right to freedom of speech dates back to the 17th century with the English Bill of Rights. In France, the Declaration of the Rights of the Man granted freedom of speech as a result of the French Revolution. In 1948, the UN General Assembly adopted the Universal Declaration of Human Rights. The Declaration provided Member States freedom of expression in Article 19, which established a basis for international and regional standards for adopting agreements on freedom of speech. In the European Convention on Human Rights, freedom of expression and limitations on its expression were defined in Article 10. Article 10.1 of the Convention grants the “freedom to hold opinions and to receive and impart information without interference.” According to this article, free expression is not only limited to written or spoken words, but also includes images and actions (Handbook on Freedom of Expression). Even though the right to freedom of expression protects a broad scope of speech, it does not make this freedom absolute. Indeed, Article 19.3 of the International Covenant on Civil and Political Rights (ICCPR) suggests that a state may limit the right to free speech under certain circumstances: “(a) for respect of the rights or reputations of others; (b) for the protection of national security or of public order, or of public health or morals.” Furthermore, freedom of expression can hinder the protection of other rights such as the right to a fair trial, the right to religion and the right to be protected for reasons of national security. When there are conflicting interests, the Court has the discretion to balance the significance of each right and to negotiate the interests of each party. Notwithstanding the broad range of rights that are protected under various international instruments, speeches that are subject to restrictions cannot be protected according to the right to freedom of speech.
Limits on Freedom of Expression
Unlimited freedom of expression may infringe upon the rights of others when the primary purpose of freedom of expression is to protect all people’s rights. The Universal Declarations of Human Rights provides limitations on the exercise of one's rights “for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” In M'Bala M'Bala v. France, the Court ruled that the case concerned hate speech against those of Jewish origin, which subsequently infringed upon the rights of others. The Handbook on Freedom of Expression stipulates that "speech promoting the Nazi ideology and denying the Holocaust falls outside the protection of Article 10 of the ECHR", which indicates that expressions are subject to restrictions prescribed by law for the prevention of disorder and for the protection of morals. The Article suggests that people carry "duties and responsibilities" when using the freedom. For that reason, Dieudonné's act could not be justified because his comedy show went beyond the restrictions stipulated by law and demonstrated an anti-Semitism that is not eligible for protection under Article 10 of the European Convention on Human Rights.
Cases like D.I. v. Germany sought to invoke the protections of freedom of expression, yet failed to secure protection, under Article 10, of the ECHR. In this case, the applicant was a historian incurred fines for denying the existence of the gas chambers in Auschwitz. The applicant made public statements that the gas chambers were fake and that the German taxpayers had paid sixteen billion German Marks for reparations for incidents that did not exist. The European Commission on Human Rights ruled that the complaint was inadmissible because the applicant's statements were contrary to the principles of the Convention and revealed racial and religious discrimination. In other cases, such as Honsik v. Austria and Ochensberger v. Austria, judges gave like rulings for applicants who held similar negationist opinions.
Hate speech has been a critical topic of discussion in the European Court of Human Rights. Post World War II, Europe witnessed an influx of hate speech legislation in order to restrain racial and religious hatred following the Second World War (e.g. "The Legal Project"). The original intention of the legislation was to eliminate xenophobic and anti-Semitic propaganda, but today, such legislation concerns a broader range of topics including ethnicity, religion, nationality, and race. The discussion of hate speech is currently based on three instruments of international law: the European Convention on Human Rights (ECHR), the International Convention on the Elimination of all Forms of Racial Discrimination (CERD) and the International Covenant on Civil and Political Rights (ICCPR). ECHR promotes Article 10 on the freedom of expression but indicates that this freedom also gives legal room for "the protection of the reputation and rights of others." Furthermore, Article 20 of the ICCPR prohibits "any advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence" (“The Legal Project”).
While the three international instruments stipulate the limitations on free speech, they do not possess a universal definition for “hate speech”. For that reason, distinguishing between speech that is vulgar or insulting and speech that could be subject to criminal charges involves a great degree of subjectivity. An even more complicated issue is that decisions of the Court may differ depending on the judge and on the context, as judges are given larger judicial discretion in deciding the application of freedom of speech unlike in other judicial cases, where they are not given such authority.
Culture and Context on Freedom of Expression
On judging the limits on freedom of expression, cultural context should be taken into account. Over the centuries, satire has been used as an effective way to criticize authority without physically injuring the subject of satire. Satire has proven to be a controversial subject when it comes to freedom of expression. Often, a number of writers and cartoonists for satirical magazines in Europe would face threats, government censorship or imprisonment. Historically, French satire – gouaille – has a tradition dating back to the French Revolution. In the 18th century, many cartoonists depicted French royals in a demeaning way, including pornographically. Such mocking depictions of the royal class weakened the prestige of the French monarchy and prepared the way for revolution (Robb). Given this particular affiliation to history, French citizens are more receptive to satirical magazines and articles. In extreme cases, satirical magazines would often insult people based upon their race, religion or sex. For example, Charlie Hebdo, one of the most controversial magazines in France, experienced a terrorist attack in its office in 2015 for depicting Islam in a mocking manner. The terror incident sparked a number of free speech discussions in the country; millions took to the streets holding "Je Suis Charlie" slogans in support of free speech. This terrorist attack was not accidental, but rather, developed from the long history of conflict between different cultural values in French society. Satirical expressions can be interpreted in various ways depending on one's cultural heritage, so the range of freedom of speech varies between cultures. Prior to this incident, several similar incidents brought controversy over limitations on freedom of expression in the country. Without understanding the cultural background regarding satire in France, the magazine would have been considered an obscene magazine with controversial ideas, when in fact it sparked a freedom of speech discussion both inside and outside of France.
Vereinigung Bildender Kunstler v. Austria concerned an exhibition of a painting that was considered, by many voyeurs, to be indecent. The painting was a collage of various public figures, such as Mother Teresa and the leader of the Austrian Freedom Party (FPO) lying in sexual positions. The European Court of Human Rights noted that because “satire is a form of artistic expression and […] naturally aims to provoke and agitate, […] any interference with an artist’s right to such expression must be examined with particular care" (Gazette, 2007). Freedom of expression let the Court's discretion play a significant role in deciding whether the case violates the freedom of expression or not.
A similar ruling regarding satire was demonstrated in the case of Alves Da Silva v. Portugal: the European Court of Human Rights convicted the applicant for driving a car with a puppet signaling corruption that the mayor of Mortagua had received illegal money. The Court ruled that the message had satirical nature and could be considered a type of artistic expression and social commentary. Therefore, the Court viewed that there was a violation of the freedom of expression and the government of Portugal unfairly convicted the applicant.
The Court held a different opinion in Palomo Sanchez and others v. Spain. In the case, the Court viewed that the cartoon and texts of the applicants were not qualified as satire because it was "an attack on the respectability of individuals by using grossly insulting or offensive expressions in the professional environment” (Palomo Sanchez and others v. Spain). Since the context of this case is a "professional environment", the Court ruled that satire took a serious form of misconduct which failed to qualify as the proper type of satire.
In the case of Dieudonné M'Bala M'Bala v. France, the Paris Court of Appeal convicted the applicant for the use of artistic expression as a tool to promote anti-Semitism in a public performance. His anti-Semitic remarks and hand gestures indicating Nazism did not qualify as a form of satire in this context and, therefore, he was not entitled to the protection. The Court viewed that his expressions cannot be accepted in the context of morality because his expression of an ideology contradicts the basic values of the Convention.
Freedom of expression is largely dependent on its context which results in various decisions. Even though freedom of expression is a tenet of human rights, abusing such freedom may infringe upon and offend others' rights and values. One purpose of the right to freedom of expression is to offer safeguards on speech, so that people can elect to speak when necessary. However, the right to speech has now become a source of conflict and dissension in society. Everyone has a right to expression, but evaluating the impact of one's speech on others is crucial.
French Laws on Freedom of Expression
Freedom of expression is a core tenet of the French Declaration of the Rights of Man and of the Citizen. Similar to other European nations, the French Constitution protects freedom of expression. The Constitution integrated the Declaration of Human and Civic Rights of 1789 on the right to free speech, Articles 10 and 11 discuss the right as follows:
- Article 10: No one may be disturbed on account of his opinions, even religious ones, as long as the manifestation of such opinions does not interfere with the established Law and Order.
- Article 11: The free communication of ideas and of opinions is one of the most precious rights of man. Any citizen may therefore speak, write and public freely, except what is tantamount to the abuse of this liberty in the cases determined by Law
Article 11 stipulates the limits on the freedom of expression by prohibiting the "abuse of the liberty" that are prescribed by Law. In other words, the French Constitution acknowledges everyone's right to freedom of speech, but also allows limitations on the right. The Law of July 29, 1881, on Freedom of the Press (Loi du 29 Juillet 1881 sur la liberté de la presse) is a foundational law on freedom of speech in France (Library of Congress). Article 24 of the Press Law of 1881 "criminalizes incitement to racial discrimination, hatred, or violence on the basis of one's origin or membership (or non-membership) in an ethnic, national, racial or religious group" (The Legal Project).
The Government of France provides limits on the freedom of speech prohibited by law: racism, anti-Semitism, racial hatred, and justification of terrorism. Incitement to terrorism is punishable by seven years of incarceration if it occurs online. Additionally, public justification of terrorism is punishable by seven years of incarceration. The act of justification of terrorism refers to the presenting or commenting on acts of terrorism "while justifying them, praising them, idealizing their goals or their methods, or passing a favorable moral judgment"(gouvernement.fr). It is also punishable when it occurs online. Types of speech that are also punishable by law include public defamation, public slander, the public provocation to hatred and disputing crimes against humanity. Many judgments of the ECtHR side with the French court's claim on the freedom of speech, as did in M'Bala M'Bala v. France, but there was one freedom of speech case wherein the Court ruled that French law was too restrictive. The case is Eon v. France in which the French court convicted a protester for insults to the President of France under the Law of 1881. The ECtHR ruled that domestic law was particularly restrictive and infringed on the speech rights of an applicant. In this case, Article 10 of the Convention was admissible.
Implementations and Monitoring
In order to restrain hate speech and implement the right to freedom of speech effectively, the role regarding a proper monitoring body and international instruments is essential. The Council of Europe has the Media and Internet division that is in charge of freedom of expression in the Council. The division issues relevant publications and organizes activities such as seminars, conferences, and other necessary events to stimulate discussions on the ways to protect freedom of expression and information in Europe. Moreover, the division promotes cooperation activities by offering assistance and expertise to media actors and by offering guidance to domestic governments and authorities. Regarding hate speech, the division seeks to raise awareness about hate speech and its harmful effect on promoting democracy. (Council of Europe).
The European Union recognizes that ensuring freedom of expression and increasing hate speech are pressing concerns today. Along with guaranteeing freedom of expression as a basic human right, the EU calls for "behavioral and cultural change in politics, judiciary and media" to cope with difficulties arising from the right to free speech (the EU). As a way of supporting systemic change, the EU provides legal assistance and guidance in creating proper media legislation. Furthermore, the EU monitors the policies of member countries and grants financial support through the Instrument for Pre-accession Assistance (IPA) programs (the EU). The IPA is a financial instrument of the EU which provides assistance for cross-border cooperation between the EU Member States and other countries that are eligible for IPA. The financial support of the EU for the freedom of expression include building trust in media and reinforcing judicial expertise. In the trust-building process on freedom of expression, the EU supports ethical journalism by providing ethics courses and good governance seminars. In order to reinforce judicial expertise, the EU applies case-law of the European Court of Human Rights on freedom of expression and trains authorities in ethics and laws.
Lastly, the United Nations Educational Scientific and Cultural Organization (UNESCO) suggests several ways in countering hate speech: education on media ethics, encouragement of conflict-sensitive reporting and multicultural awareness campaigns, encouragement for victims and witnesses to report hate speech-related crimes, and end of impunity against hate crimes. Education on media ethics is crucial in countering hate speech because individuals should be aware of the impact of the message that they bring in public whether it merely offends someone or is subject to a criminal offense. Everyone should be aware of their political, social, and cultural rights regarding his or her expressions, as well as responsibilities that are attached to the right to free speech. It is also important that individuals acquire skills to identify hate speech and have knowledge on how to counteract hate speech messages (UNESCO).
UNESCO realizes that most of the controversy over hate speech originates from sensitive topics of discussion. Encouragement of conflict-sensitive reporting would teach individuals and journalists on how to tackle and express an opinion on sensitive issues. Moreover, multicultural awareness campaigns would offer knowledge of diverse cultures and traditions in different regions of the world. In that way, hate speech that results from the ignorance of a certain culture would decrease gradually. Another important factor for countering hate speech is the reporting of hate speech-related crimes. In many cases, hate speech continues because either individuals do not recognize that they are victims of hate speech or do not have any knowledge of where to report the hate speech cases. It is vital that individuals are well-informed of what constitutes hate speech and where to report to decrease the occurrence of hate speech.
Freedom of expression is a critical factor that supports the basis of democracy. As a way to protect basic human rights for individuals, a number of international instruments stipulate the protection of speech as one of the core principles of their organization. However, freedom of expression carries limits and responsibilities throughout the case of M'Bala M'Bala v. France. This case did not fall under the protection of Article 10 of the Convention because Dieudonné did not fully convey his responsibilities by expressing hatred toward a certain religious group. Even though artistic expressions or satires are often granted immunity from speech limits, hate speech cannot be justified on the grounds that it infringes upon others' rights to well-being. In terms of the limits on freedom of expression, cultural context plays a significant role in judging the limits on the right, which indicates that deciding the applicability of Article 10 on freedom of expression entails a complicated assessment of the cultural context and is subject to the discretion of judges. Notwithstanding the difficulties in dealing with the right to freedom of speech, relevant international instruments should promote a better environment for freedom of expression, while individuals need to recognize the consequences of their speech and be mindful of the proper use of their rights on freedom of speech.
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