France: Freedom of expression and the Charlie Hebdo killings

Transcription

1 AMNESTY INTERNATIONAL QUESTIONS AND ANSWERS (for internal use only) AI Index: EUR 21/002/ January 2015 France: Freedom of expression and the Charlie Hebdo killings Is the freedom of expression an absolute right under international law? The right to freedom of expression is essential to the realization and exercise of all human rights. But, it is not absolute and it may be subject to certain restrictions for particular purposes specified in international law, which include to protect the rights of others. International human rights law and standards provide a framework for how the state should strike a balance between maximum protection of freedom of expression and respect for the rights of others. So when is it legitimate for states to restrict freedom of expression? One of the purposes for which it may be permissible under international law for states to impose restrictions on the exercise of freedom of expression is to protect the rights of others, including the right to be free from discrimination. In particular, any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (often known as hate speech ) should be prohibited. Any restrictions must not put in jeopardy the right to freedom of expression itself. In other words, the benefit to the interest which is being protected must outweigh the harm to freedom of expression which may result from the restriction. The burden is on the state to demonstrate the necessity and proportionality of any restriction and the legitimate reason for which it is imposed. Any restriction on expression must be clearly and narrowly defined, respond to a pressing social need and be the least intrusive measure available to address that need. A government may therefore only impose restrictions on the exercise of freedom of expression if they are provided by law; conform to strict tests of necessity and proportionality; applied only for the purpose for which they were prescribed, which must be one of the purposes permitted under international human rights law; and are directly related to the specific need on which they are based. The use of the criminal law can only be a proportionate restriction in cases of intentional incitement, with a likelihood that harm against members of the targeted group will result. Was the targeting and killing of Charlie Hebdo staff a violation of freedom of expression? Journalists and other media workers have the individual right to freedom of expression, and a free and unhindered media plays a key role in ensuring the freedom of opinion and expression of everyone in society, including their right of access to and exchange of information and ideas of all kinds. The targeting and killing of the Charlie Hebdo staff was therefore an attack on freedom of expression, and not only for those who were its immediate victims. Moreover, such an attack can create a chilling effect on the exercise of freedom of expression generally, if others exercise self-censorship so as not to place themselves similarly at risk.

2 Is there a right not to be offended? While international human rights law protects the right to freedom of thought, conscience and religion, it does not extend to a right not to be offended, however deeply, by criticism or ridicule of one s religious beliefs, deities or revered figures. Moreover, religious traditions or rules which prohibit certain forms of expression (such as the prohibition for Orthodox Jews on writing or speaking the name of God, or for Muslims on making pictorial depictions of the Prophet Muhammad), however strongly they are held, apply to adherents of those religions only. As such, they are not a matter for international human rights law, which applies to people of all religions and none. Nor are they a matter for regulation by states. There is no right to be protected against offence caused by ridicule of one s religion. What is Amnesty International s reaction to the Charlie Hebdo s cartoons themselves? A magazine such as Charlie Hebdo will usually be controversial, outrageous, and often offensive, in its social and political commentary that is the essence of satire. But many Muslims say they have been particularly offended by some of its cartoons because Muslim tradition bars any depiction of the Prophet Muhammad. In addition, they say some of the cartoons portray the Prophet Muhammad in an offensive way. Charlie Hebdo cartoons have also satirized other religious and political figures. Some people have asserted that certain cartoons are offensive or racist, while others see them as permissible social commentary when considered in the entire context in which they were published. While Amnesty International has not carried out a full analysis of Charlie Hebdo s cartoons and the context in which they were intended as political and social satire, it takes the view that the journalists and cartoonists working with Charlie Hebdo have been, and should not be prevented from, lawfully exercising their right to freedom of expression. As frequently reiterated by the European Court of Human Rights, this right, while it may be subject to certain legitimate restrictions, applies not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the state or any sector of the population. Does the publication of these cartoons amount to advocacy of hatred and incitement? Does this mean satirical cartoonists effectively cannot comment on any current affairs involving Islam? The assessment of whether something amounts to advocacy of hatred constituting incitement depends on a number of inter-related factors including the intent, motivation, medium, context and foreseeable consequences in a given circumstance. Depending on the motivation and the context, the depiction of crude or derogatory racist or religious stereotypes could amount to such incitement. Authorities have to assess these cases individually. Such assessments are particularly difficult when the format of a particular statement is satirical, as is usually the case with cartoons, and when sometimes it may have quite the opposite meaning to what is being depicted. On the basis of available information, Amnesty International has seen nothing that would lead it to the conclusion that any of these cartoons amount to advocacy of hatred and incitement which should be prosecuted. Even if there is convincing information that the publication of such

3 cartoons, in a small-circulation satirical magazine, might have contributed to exacerbating an existing climate of discrimination and stereotyping of marginalized social groups, Amnesty International does not believe that the publication of such cartoons should be subject to any form of legal prohibition by the state. In the current context it is also necessary to bear in mind that the cartoons, as well as the intensity of the reaction to them, have now become a media story in their own right, and, accordingly editors of some other magazines or websites might decide to publish them as part of their professional duty to inform the public on a matter of public interest; other editors might take the view that some of the cartoons published by Charlie Hebdo are not appropriate for dissemination in mass-circulation media. This should remain a matter of editorial judgment subject to no further restrictions. What is the role of governments in regard to controversy, offence and any perpetuation of racist stereotypes? States have an obligation to prohibit hate speech that is, advocacy of hatred that constitutes incitement to discrimination, hostility or violence. But it is essential that any measures are applied in strict conformity with international human rights law. In the course of more than five decades of work for the protection of human rights, Amnesty International has worked on behalf of hundreds of prisoners of conscience imprisoned by governments which have made spurious use of such justifications as a pretext to imprison people for exercising their right to freedom of expression. For the government to protect the human rights of individuals from ethnic, religious or other social groups which are marginalized and subject to social hostility, stereotyping or discrimination, it may in some cases have to impose legal restrictions on freedom of expression. But the use of the criminal law will almost invariably be a disproportionate restriction. Moreover, restrictions on expression which perpetuates racist or other derogatory stereotypes do not address - and may even exacerbate -- the underlying causes of intolerance and stereotypes. But what about dissemination of racist or discriminatory views or negative stereotypes generally? The UN Declaration on the Elimination of All Forms of Racial Discrimination calls on states to take effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting human rights principles. This approach was underlined in the course of an extensive international consultation with experts, government representatives and civil society organized by the UN in which culminated in the adoption of the Rabat Plan of Action [on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence]. The Plan of Action identifies three distinct categories: expression that constitutes a criminal offence; expression that is not criminally punishable but which may justify a civil suit or administrative sanctions; and expression that does not give rise to any such measures but which raises concerns in terms of tolerance, civility and respect for the rights of others. Criminal measures should be a last resort. Discriminatory expression and derogatory stereotypes are most harmful when directed against

4 marginalized social groups. While such discrimination is most effectively countered by counterdialogue and social opprobrium rather than suppressed by official prohibition, it may not be robustly contested by groups which are already marginalized. Accordingly, states should put in place social policies to encourage representation and meaningful participation of individuals, irrespective of ethnic origin or religion, in all sectors of society. In particular they have a responsibility to ensure that members of marginalized groups are able to exercise their rights, including their right to freedom of expression, for example by facilitating the registration and functioning of media organizations by such groups. States should have in place public policies and regulatory frameworks which promote pluralism and diversity of the media and which promote non-discrimination and universal access to and use of means of communication. What is the role of the media in cases like this? Media workers, like anyone else, enjoy the individual right to freedom of expression, as well as having a professional responsibility to inform the public. In situations like this, where there are heightened tensions, journalists, broadcasters and publishers should approach their work with an awareness of the potential impact of their output in the wider context. This includes taking account of how it might be perceived by their audience particularly with regard to issues of religion and culture, so as not to exacerbate social tensions. But these are matters for selfregulation and professional codes of conduct. It is not the role of the state pre-emptively to make such judgments for journalists this amounts to censorship. The media, as part of their function to inform the public, can also encourage public debate and the exchange of a diversity of views, which can help combat intolerance and prejudice and negative stereotypes connected with certain groups. And voluntary professional codes of conduct for the media can underline the need to be alert to the danger of entrenching discrimination or negative stereotypes, raising awareness of the harm caused by discrimination and negative stereotyping. What is the role of governments and politicians in this public debate? States should take effective measures to combat negative stereotypes of, and discrimination against, individuals and communities on the basis of their nationality, ethnicity, religion or belief, and political leaders generally can play a positive role in speaking out against intolerance and discriminatory stereotyping. Governments should take effective steps to ensure zero tolerance of racist or other discriminatory behaviour by public officials, including law enforcement officials, and to address with disciplinary and criminal measures any use of racist or derogatory language by officials; policing operations must not be targeted in a discriminatory fashion against particular communities because of their ethnic origin or religion or similar factors. Is it a violation of freedom of expression for the authorities in France to arrest people for expressing points of view which they interpret as defending terrorism? Amnesty International is concerned that arrests and prosecutions on the basis of such a vaguely defined offence as defending terrorism ( l apologie du terrorisme ) in French criminal law risk violating the freedom of expression.

5 International treaties on the prevention of terrorism require states to criminalize incitement to commit a terrorist offence. But vaguely-defined offences such as defence of terrorism risk criminalizing statements or other forms of expression which, even if offensive to many, fall well short of incitement -- that is, lacking the necessary element of intent and without a direct and immediate likelihood that they would prompt violence or other criminal acts. Amnesty International does not have sufficient information about the individual cases to be able to make an assessment about each of the cases themselves. Some of the recently reported cases in France may amount to incitement and so could cross the high threshold of expression that can legitimately be prosecuted. Others, however offensive the statements made clearly do not Is it a violation of freedom of expression for countries such as Turkey to prevent the republication of some of Charlie Hebdo s cartoons through court orders, arrests or criminal investigations taken against newspapers and media workers? Essentially, yes. In line with the principles outlined above regarding legitimate restrictions on expression, there are only very limited circumstances in which it would be consistent with international human rights law for a court to issue an order to prevent publication of certain material or to instruct a publication to remove material from its website. Criminal investigations would be legitimate under international human rights law only with regard to advocacy of hatred constituting incitement, or other incitement to a crime. Specifically, the criminal investigation launched on January 15 th against one of Turkey s largest daily newspapers for insulting religious values in its coverage of controversial cartoons published in France amounts to state censorship and will have a chilling effect on journalism and freedom of expression. There is a long history of Turkish courts treating criticism as insult, resulting in criminal convictions which violate the right to freedom of expression. Criminal defamation laws are frequently used in this regard, but any complaints of defamation or insult against individuals should be resolved through civil litigation brought by the aggrieved party, not by means of the criminal law. But what if the publication of such cartoons is likely to lead to protests which may turn violent? Can the state ban their publication on those grounds? State authorities should not seek to address the risk of violence in the context of protests by imposing censorship on the peaceful exercise of freedom of expression, but by policing such protests or, if unavoidable, imposing on them necessary and proportionate restrictions which comply with international human rights law. If there are public protests against publication of the cartoons, state authorities must respect at all times the right to peaceful assembly. If some individuals protest by committing acts of violence or criminal damage, or incite others to such acts, the authorities should take appropriate action to comply with their obligation to protect the lives and safety of all people within their jurisdiction, as well as to protect the rights of those who wish to protest peacefully. Indeed, international human rights law provides for states to implement proportionate law enforcement measures to control demonstrations which are not peaceful, while also ensuring the rights of those who wish to protest peacefully.

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