On October 25th, a seven-judge European Court of Human Rights (ECtHR) Chamber upheld the conviction of an Austrian woman under the country’s blasphemy law for statements she made accusing the Prophet Muhammad of pedophilia. The ECtHR’s decision caps a years-long legal battle—far more protracted than the € 480 fine the woman was assessed might seem to merit. However, growing global anxiety over international organizations, and the Austrian law’s tension with free speech ideologies, made the decision a ready-made launching pad for political diatribe.
An Austrian woman, identified as E.S. in court documents, hosted a series of seminars in 2008 and 2009 for the right-wing Freedom Party. At two of the seminars, titled “Basic Information on Islam,” the woman referred to the Prophet Muhammad as a pedophile, referring to his marriage to Aisha, who was allegedly six years old at the time. (In the three statements at issue, she said Muhammad “liked to do it with children,” referred to “the thing with Aisha and child sex,” and remarked “What do we call it, if it is not paedophilia?”)
The woman was convicted under Article 188 of the Austrian Criminal Code, which bars behavior “likely to arouse justified indignation” and “disparages . . . a church or religious community.” Upon appeal, the regional court’s decision was upheld by the Vienna Court of Appeal and a request for the renewal of the proceedings was dismissed by the Austrian Supreme
Court. She then lodged her case with the ECtHR, claiming that her conviction violated Article 10 of the European Convention on Human Rights, which protects freedom of expression.
On October 25th, the ECtHR held that the Austrian Supreme Court’s conviction was permissible under Article 10. According to Article 10, “[e]veryone has the right to freedom of expression,” but there may be certain limitations imposed to, among other reasons, “protect the rights of others.”
The ECtHR applied a three-step test to find that the Austrian Supreme Court’s decision was permissible. First, it found that the decision was “prescribed by law,” which was undisputed in this context. Second, it found that the law had a “legitimate aim” as tied to a specific exception listed in Article 10, allowing speech restrictions that promote “the protection of the reputation or rights of others.” The ECtHR agreed with the Austrian Government and held that the woman’s conviction “pursued the aim of preventing disorder by safeguarding religious peace, as well as protecting religious feelings, which corresponds to protecting the rights of others.”
Third, the ECtHR determined that the law was “necessary in a democratic society.” At this point, the ECtHR performed its greatest interpretative gymnastics, struggling with the tension between promoting free speech and protecting religious freedom but finding a home in a heavily deferential posture. The ECtHR determined that where the trial courts have adequately engaged in a proportional balancing, between the burden on the party and the social need at risk, the ECtHR will “require strong reasons to substitute its view for that of the domestic courts,” and the domestic courts have “a wide margin of appreciation.”
The ECtHR agreed with the trial court’s findings that the woman’s statements were public and capable of “arousing justified indignation,” as required by the Austrian statute. Finally, the ECtHR agreed with the trial court’s reasoning that the woman wrongly implied that evidence identified “paedophilia as [Muhammad’s] general sexual preference,” and thus that her statements were “value judgments without sufficient factual basis.”
Out of the Blue?
The ECtHR’s decision drew broad condemnation from across the political spectrum. Some commented that it was protecting nothing more than hurt feelings, some commented that it marked a “turning point” wherein the ECtHR chose “the right not to be offended” over “the right to be wrong,” and others commented that it was “appalling,” albeit in keeping with Austrian law.
The ECtHR’s decision, however contrary to pervasive American attitudes about the absolute right of free speech, could hardly be seen as unexpected. In 1994, the ECtHR upheld the seizure of a film thought to be offensive to Catholics under the same Austrian statute. Though social attitudes surrounding free speech may well have changed in the intervening years, encouraging some authors to speculate that the ECtHR could rule differently this time, the decision is hardly unprecedented.
Perhaps further solidifying the decision is a trend of increasing deference by the ECtHR to the decisions of member states’ courts. A study by Oyvind Stiansen and Erik Voeten determined that judges appointed to the ECtHR in recent years are increasingly restrained, and the ECtHR’s decisions are increasingly deferential to decisions made by consolidated democracies, which includes Austria. Voeten posits that this trend of increasing deference helps to explain the ECtHR’s decision, more so than a desire to introduce a European blasphemy law. He further posits that the trend helps to reconcile this ruling with ECtHR’s previous decision to uphold France’s law banning burqas.
Despite some outcry, the ECtHR’s decision seems unlikely to spark a wave of blasphemy convictions, either in Austria or elsewhere in Europe. Just days after the ECtHR’s decision, voters in Ireland backed the removal of the nation’s constitutional blasphemy ban, though no one had been convicted of blasphemy in the country in over 150 years. In 2008, the United Kingdom repealed its blasphemy laws after more than 30 years without a conviction under the prohibition. Austria may be on the high end with as many as two convictions a year in 1991, 1998, 1999, and 2002.
While Austria’s criminalization of inciting “justified indignation” may be overly broad, it is not clear that the ECtHR’s decision will embolden blasphemy law proponents, and it does not appear to reshape the legal framework currently in place. Stiansen and Voeten’s proposition of an ECtHR in peril may be the best way to understand the rationale of the Court—that is, one less concerned with establishing sound doctrine and more concerned with preserving a tenuous relationship with member states at a time when international organizations, such as the European Union and the Council of Europe, the body that oversees the ECtHR, are viewed with increasing skepticism.