Tuesday, 29 March 2011

Article on ECHR Abuse Clause and Freedom of Expression

The newest issue of our Utrecht/SIM publication, the Netherlands Quarterly of Human Rights (vol. 29, no. 1) includes an article by Hannes Cannie and Dirk Voorhoof, both of Ghent University, entitled 'The Abuse Clause and Freedom of Expression in the European Human Rights Convention: An Added Value for Democracy and Human Rights Protection?'. This is the abstract:

With regard to certain types of hate speech, the European Court of Human Rights and the former Commission have developed a tradition of applying Article 17 ECHR; the so-called abuse clause. This application leads to a categorical exclusion from protection of the right to freedom of expression (Article 10), an approach that contrasts sharply with the Court's general attitude toward accepting and even creating a broad scope of protection under this right. It also contrasts with the Court's usual examination of interferences with the freedom of expression in the light of the case as a whole, all its factual and legally relevant elements being taken into consideration. The aim of this article is to show that the abuse clause's application is undesirable, since it tends, even in its indirect variant, to set aside substantial principles and safeguards that are characteristic of the European speech-protective framework. The application of Article 17 is also unnecessary, as it in no way generates an added value for democracy or for human rights protection. We therefore strongly encourage the European Court to consider all forms of hate speech from the perspective of Article 10, without affording a decisive impact, directly nor indirectly, from Article 17 of the Convention.

2 comments:

siglawn said...

I am in complete agreement. If the right of freedom of expression is excluded in a case then it seems to me that the right of freedom of expression is eliminated by default. The two articles (Article 10 and Article 17) are in stark contradiction to each other. A person has the freedom of expression so long as the court allows it by not invoking Article 17. Freedom of expression is therefore no longer a fundamental right.

Mobiles said...

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