People are claiming the European Court of Human Rights has just imposed a blasphemy law protecting Islam. It hasn’t, explains Simon Perfect.

The European Court of Human Rights has just ruled in a case about freedom of speech and the Prophet Muhammad. ‘Mrs ES’ from Austria had described Muhammad as a paedophile and was convicted by the Austrian court; the European judges then upheld the original ruling.

Does this mean, as some have claimed, that the European court has just imposed a new blasphemy law, banning slander of Islam? No it doesn’t. Reading a decent short summary of a legal judgment (or even the actual judgment) helps avoid jumping to conclusions based on personal biases that this is ‘yet another’ cynical attempt of judges to curtail freedom of speech.

So what are the facts of the case? In 2008 Mrs ES held several seminars called ‘Basic Information on Islam’ at the Educational Institute of the right–wing Freedom Party in Austria. She said that one of the “biggest problems” today is that “Muhammad is seen as the ideal man” and Muslim men believe they must imitate him. This is a problem because Muhammad “liked to do it with children”, had “child sex” with his wife Aisha, and that this was “paedophilia”. Over the next few years she was subsequently found, at each level of the Austrian courts, to have violated Article 188 of the Austrian Criminal Code, which renders unlawful any behaviour that “publicly disparages or insults” a person or object of veneration of a church or religious community, in circumstances “likely to arouse justified indignation”. The case then came to the European Court of Human Rights (ECtHR), with Mrs ES arguing that her conviction was an unlawful interference with her right to freedom of expression, guaranteed by Article 10 of the European Convention of Human Rights.

Why did the Austrian courts conclude her statements contravened the Criminal Code? This was a case that involved a tension between the state’s duty to uphold Mrs ES’ right to freedom of expression (guaranteed by Article 10 of the Convention) and its duty to ensure others could peacefully exercise their rights to freedom of thought, conscience and religion (guaranteed by Article 9). The Austrian courts found that people can make offensive attacks on religion, but should avoid making statements that undermine the rights of others or cause major offence to a religious group without contributing to a serious debate of public interest. Her statements were not found to contribute to a serious debate, since they were not ‘facts’ but ‘derogatory value judgments’ without a sufficient evidence base. (The courts involved themselves in a rather bizarre attempt to assess whether there was enough evidence to determine the historicity of the claims).

But regardless of whether the statements were actually true or not, the Austrian courts found that her aim was not to open up an objective discussion about Islam and child marriage but specifically to degrade Muhammad, and moreover, to deride Muslim attempts to imitate him. Mrs ES therefore contravened the Austrian Criminal Code because she insulted an object of religious veneration in an unnecessarily gratuitous way, with the ultimate intention of attacking a religious group.

So why did the ECtHR agree with the Austrians? While everyone has the right to freedom of speech (Article 10), this is qualified, meaning that states can legitimately interfere with someone’s right in narrow circumstances “necessary in a democratic society”, such as to protect the rights of others or prevent disorder. The European judges give states a wide ‘margin of appreciation’ when it comes to determining what counts as “necessary in a democratic society” – particularly when it comes to matters of freedom of expression. In effect, the ECtHR determined that Austrian judges are better placed than itself to determine what is best for securing peaceful co–existence of communities in Austria; and that the Austrians had done a legitimate job of balancing the competing rights involved in the case. The ECtHR also agreed with the Austrian courts that Mrs ES was presenting value judgments without sufficient evidence, not facts, and was not trying to create serious debate on the issue.

What does all this mean for the UK? It certainly doesn’t mean the European judges have issued a Europe–wide ban on criticism of the Prophet Muhammad, or even on making statements like Mrs ES’. It just means the ECtHR has confirmed that the Austrian decision didn’t contravene Convention rights, and that in these difficult cases concerning freedom of expression it must take strong account of the laws of its member states, as well as of the context of the particular cases in hand. It repeated the key principle that member states have a wide margin of appreciation in these kinds of legal cases – what applies in one country won’t necessarily apply in another.

Some have claimed that the decision means that criticism of Muhammad can only be made in contexts of ‘objective’ public debate supported by sufficient facts. It’s not at all clear from this case that this would be so, since Mrs ES’ conviction may well have been upheld even if she had made her statements in a way that opened up ‘objective’, ‘serious’ debate (whatever that may look like). However, it is clear from previous case law that when considering difficult cases of freedom of expression, the ECtHR will consider factual statements (supported by sufficient evidence) as being more protected by Article 10 than insufficiently supported value judgments.

In Britain we have different laws that might be involved in this scenario. The Racial and Religious Hatred Act 2006, for example, criminalises threatening words or conduct with an intention to stir up hatred on grounds of religion. But it contains a freedom of speech clause, so that it won’t come into effect in a way that “prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system”. If a similar case arose in Britain, the ECtHR would have to take this strong protection of freedom of expression into account.

When it comes to freedom of speech, we must make sure we look at the facts before we conclude it is really threatened.