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Time and again (e.g. in such cases as X. Ltd. and Y. v United Kingdom, Otto-Preminger-Institut v Austria, Wingrove v United Kingdom, and İ.A. v Turkey) the European Court of Human Rights has accepted that responding states legitimately interfered with free speech in the interest of protecting the sensitivities of religious believers. Individual ECtHR judges have, in their dissenting opinions, lamented that ‘the time has perhaps come to “revisit” this case-law, which in our view seems to place too much emphasis on conformism or uniformity of thought and to reflect an overcautious and timid conception of freedom of the press’ (I.A.). In this contribution, scrutinising the most recent instalments of the Strasbourg Court's jurisprudence on speech acts alleged to insult religious sentiments (including, E.S. v Austria and Mariya Alekhina and Others v Russia [Pussy Riot]), it will be ascertained if and to what extent the European Court of Human Rights is indeed revisiting its jurisprudence in this area.
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.
The tension between blasphemy laws and the freedom of expression in modern times is a key area of debate within legal academia and beyond. With contributions by leading scholars, this volume compares blasphemy laws within a number of Western liberal democracies and debates the legitimacy of these laws in the twenty-first century. Including comprehensive and up-to-date comparative country studies, this book considers the formulation of blasphemy bans, relevant jurisprudential interpretations, the effect on society, and the ensuing convictions and penalties where applicable. It provides a useful historical analysis by discussing the legal-political rationales behind the recent abolition of blasphemy laws in some Western states. Contributors also consider the challenges to the tenability of blasphemy laws in a selection of well-balanced theoretical chapters. This book is essential reading for scholars working within the fields of human rights law, philosophy and sociology of religion, and comparative politics.