Reforming the Approach to Racial and Religious Hate Speech Under Article 10 of the European Convention on Human Rights
Philippe Yves Kuhn · Human Rights Law Review · 2019
At present the European Court of Human Rights employs a two-track approach to racial hate speech and religiously offensive speech, respectively. Further, the jurisprudence under Article 10 of the European Convention on Human Rights currently privileges journalistic or scholarly, over creative or artistic, forms of religious criticism. However, in this article it is argued that the ‘gratuitously offensive’ test for religiously offensive speech requires reform, while a consistent approach to racial hate speech cases is equally necessary. By building on Waldron’s account of the harm in hate speech, a single Article 10 test for both racial and religious hate speech is proposed. This new test focuses on harm in the sense of seriously undermining the target’s assurance to a status of equal worth in the community. It abandons the unhelpful race/religion dichotomy in the Article 10 jurisprudence, and is more responsive to the political reality of tense public discourse surrounding issues of race and religion in Europe in the wake of the Syrian refugee crisis and Brexit.