INTRODUCTION

The European Court of Human Rights’ (ECtHR) freedom of expression case law is notoriously troublesome. Ever since the Handyside case, the first landmark judgment on freedom of expression, the Strasbourg Court has paid ample lip-service to freedom of expression as the cornerstone of a democratic society and specifically to the mantra holding that free speech protection is ‘applicable 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. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”’’. The reality is that ever since Handyside – in fact, including that judgment in which the Court distils insurmountable ‘ethical’ objections from what was essentially a harmless sex education booklet – hardly ever do offensive, shocking, or disturbing statements trigger robust free speech protection by the highest European human rights court.

The upshot thereof is, it will be argued in this contribution, that the Strasbourg Court at times fails to protect speech acts – protect especially those speech acts4 – that are not favourably received.