The Danish Cartoon Row and the International Regulation of Expression
The Cartoons and Freedom of Expression
The publication in a Danish newspaper of a series of cartoons depicting the prophet Mohammed has elicited an intense response throughout much of the Muslim world. One cartoon, a drawing of Mohammed with a bomb in his turban, has provoked particular outrage. Not only are images of Mohammed prohibited in many religious communities, but the depiction of Mohammed as a terrorist is alleged to promote discrimination against Muslims by likening them to terrorists. The republication of the cartoons by other European newspapers has further inflamed the situation.
In the wake of this intense response, Jyllands-Posten, the Danish newspaper in which the cartoons first appeared, issued a formal apology. The Danish Prime Minister welcomed the apology, while pointing out that this was a matter of freedom of expression. However, to characterize the Jyllands-Posten cartoon row merely as a dispute over freedom of expression may oversimplify the underlying legal questions.
Although freedom of expression is a fundamental norm of international human rights law, it is subject to certain restrictions. All of the major human rights treaties that codify this right also subject it to limitations, which allow ? and in some instances require ? restriction of the right on certain specified grounds including protection of the rights of others.
International human rights law recognizes that there is a spectrum of expression, ranging from that which must be protected to that which must be punished. For example, two widely ratified human rights treaties ? the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Elimination of All Forms of Racial Discrimination (CERD) ? require States Parties to prohibit certain hostile expressions. Thus, the ICCPR, in Article 20(2), requires States Parties to prohibit ?[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.? CERD provides that States Parties are obliged to criminalize ?dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin,? as well as participation in ?propaganda activities, which promote and incite racial discrimination.? Denmark is a party to the ICCPR and CERD.
Denmark is also a High Contracting Party to the European Convention on Human Rights. In fact, one of the most prominent freedom of expression decisions rendered by the European Court of Human Rights was the case of Jersild v. Denmark.
Article 10(1) of the European Convention proclaims that ?[e]veryone has the right to freedom of expression.? However, article 10(2) recognizes that the exercise of this freedom, ?since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society? for, among other things, ?the protection of the reputation or rights of others.?
In the Jersild case, the Danish government interfered with freedom of expression by prosecuting and convicting a journalist for disseminating the racist expressions of others in a television documentary. While recognizing that this interference pursued a legitimate aim (i.e., the protection of the reputation or rights of others), the European Court of Human Rights found that criminal prosecution was not ?necessary in a democratic society? to achieve that aim, and thus constituted a violation of Article 10 of the Convention.
The Danish Prime Minister may have had this case in mind when he reaffirmed Denmark?s commitment to a free press. However, there are a number of important distinctions between the Jersild case and the present controversy.
In the course of its analysis in Jersild, the Court emphasized several key factors: the fact that the applicant was functioning in his capacity as a journalist, the context in which the statements were broadcast, and the purpose of the documentary.
The Court recalled the importance of a free press in a democratic society and noted that ?[a] significant feature of the present case is that the applicant did not make the objectionable statements himself but assisted in their dissemination in his capacity of television journalist responsible for a news programme??
In examining the context in which the news program was broadcast, the Court disagreed with the finding of the Danish courts that there had been no ?attempt to counterbalance the extremist views expressed.? The Court noted that ?the TV presenter's introduction and the applicant's conduct during the interviews clearly dissociated him from the persons interviewed,? that Jersild had ?rebutted some of the racist statements? made, and that, ?taken as a whole, the filmed portrait surely conveyed the meaning that the racist statements were part of a generally anti-social attitude? on the part of the extremists.
The Court ultimately found that the program, viewed as a whole, ?could not objectively have appeared to have as its purpose the propagation of racist views and ideas. On the contrary, it clearly sought ? by means of an interview - to expose, analyse and explain this particular group of youths, limited and frustrated by their social situation, with criminal records and violent attitudes, thus dealing with specific aspects of a matter that already then was of great public concern.?
By relying on the facts that the news item in issue did not have as its purpose the promotion of racial discrimination and that Jersild had provided a degree of balance to the racist statements made (statements which the Court noted would be unprotected by Article 10), the Court left open the possibility that governmental restraints may be justifiably imposed when the press simply acts as a mouthpiece for the dissemination of racist views.
In a contemporaneous case, the European Court addressed a state?s interference with expression found to offend ?religious feelings.? In the case of Otto-Preminger-Institut v. Austria, the Court found no violation in the forfeiture and seizure of a film that the Austrian government deemed to be ?an attack on the Christian religion.? The Court found the seizure to be ?necessary in a democratic society? to achieve the legitimate aim of protecting the rights of others. It interpreted the latter as including ?the right of citizens not to be insulted in their religious feelings by the public expression of views of other persons.? This insult would seem to be even greater when the religious feelings at issue are those of a minority group within the state.
Article 19(2) of the ICCPR provides for the freedom of expression. In Faurisson v. France, the complainant before the Human Rights Committee (the body that monitors compliance with the ICCPR) alleged that his conviction under French law for contesting the existence of the Holocaust constituted a violation of his freedom of expression. In concluding that the Covenant had not been violated, the Human Rights Committee considered a number of factors, including the broader social context in which the expression was made. The Committee noted, in particular, a statement of the French government that ?characterized the denial of the existence of the Holocaust as the principal vehicle for anti-semitism.? Consequently, the prosecution was justified as ?necessary? within the meaning of Article 19(3), a limitation clause which closely parallels Article 10(2) of the European Convention.
However, to say that governmental interference is not prohibited in such cases is not to say that it would be required. Indeed, the European Convention contains no provision explicitly requiring the repression of certain types of expression. As noted above, however, both CERD and the ICCPR contain such obligations.
Demonstrations in Response
Norms of international law are also relevant to the demonstrations occurring in many parts of the world in response to the publication (and re-publication) of the cartoons. International human rights law recognizes the right of individuals to assemble with others in protest. Article 21 of the ICCPR and Article 11 of the ECHR recognize the right of peaceful assembly. Both provisions are expressly limited to ?peaceful? assembly, and are further made subject to limitation clauses similar to those attaching to the freedom of expression. When demonstrations turn violent, they lose the protection of these provisions.
Protesters are also protected by the freedom of expression. Political speech receives particularly strong protection under human rights law, providing a broad spectrum for discussion in which the state may not interfere. However, when protest slogans and placards incite to violence, this protection is eroded. The European Court of Human Rights has consistently held that High Contracting Parties have broad latitude in responding to incitements to violence. Although the European Court of Human Rights does not exercise jurisdiction over States that are not members of the Council of Europe, its jurisprudence is instructive regarding the recognized scope of freedom of expression generally.
According to the jurisprudence of the European Court of Human Rights, when the expression at issue incites violence, national authorities will be granted a wide margin of appreciation, indicating a greater deference to the judgment of those authorities and effectively lessening the degree of international protection afforded the expression. In particular, where the expression contains a clear call for the use of violence, States Parties to the European Convention may resort to criminal prosecutions to repress it. Even in a situation calling for the highest protection of expression (e.g., political speech implicating the role of the press), the Court has found incitement to violence to warrant the adoption of criminal measures against the author of the expression as well as those responsible for its dissemination.
When protests result in attacks against diplomatic premises, further norms of international law are applicable. Article 22 of the 1961 Vienna Convention on Diplomatic Relations reads in part, ?The premises of the mission shall be inviolable.? It further imposes upon States Parties a ?special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.? Article 31 of the Convention on Consular Relations sets forth parallel provisions with respect to consular premises.
When attacks against diplomatic premises are ?likely to endanger [the] person or liberty? of an internationally protected person, which would include diplomatic representatives of a State, the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons would also come into play. Under Article 2, States Parties to this treaty are obliged to establish jurisdiction over such crimes, and to make them ?punishable by appropriate penalties which take into account their grave nature.? Further, States Parties in whose territory the alleged offender is found are obliged under Article 7 to prosecute the offender ?without exception whatsoever and without undue delay? or to extradite him or her to another state for prosecution. The 159 States Parties to this convention include those in which embassies have been attacked recently.
The UN Human Rights Council, which was created shortly after the Danish cartoon controversy first erupted, has taken a keen interest in the issue of religious defamation. In a resolution adopted at its Fourth Session, the Council condemned religious defamation, citing it as a cause of ?social disharmony? leading to ?violations of human rights.?
A number of recent events have brought the Danish cartoon controversy back into the media spotlight. In early 2008, after Danish authorities uncovered a plot to kill the illustrator of one of the more controversial cartoons, newspapers throughout Denmark re-printed the cartoons, citing as justification the defense of the freedom of expression. At the same time, a member of the Dutch parliament released a controversial film associating recent terrorist violence with Islam. Notably, the local and global context has changed significantly since the initial publication of the cartoons, which would factor into the legal analysis of whether these new publications could be protected by the freedom of expression.
These developments, in turn, fueled the divisive debate in the March 2008 session of the Human Rights Council which led to a modification of the mandate of the Special Rapporteur on Freedom of Expression. Draft resolution L.24, renewing the mandate of the Special Rapporteur, was initially introduced by Canada. Over the protest of the Canadian delegate, as well as objections by a number of other, mostly western, countries that had initially sponsored the resolution, the mandate was amended to include reporting on ?instances where the abuse of the right of freedom of expression constitutes an act of racial or religious discrimination.? Decrying the amendment as seriously undermining the mandate?s focus, a number of countries, led by Canada, withdrew their sponsorship of the resolution and abstained in the vote to renew the mandate.
For further information and analysis, see the ASIL Human Rights Interest Group Working Papers on the subject: www.asil.org/cartoonpapers.
About the author
Professor John Cerone, an ASIL member and co-chair of the ASIL Human Rights Interest Group, is Director of the Center for International Law & Policy at the New England School of Law. He was in residence at the Danish Institute for Human Rights in 2004 as a Fulbright Scholar.
 In practice, however, the Human Rights Committee tends to consider any state interference with expression, even that which article 20 requires to be suppressed, as a potential violation of freedom of expression, and thus examines the restriction in light of the limitation clause of 19(3), which requires restrictions on expression to be necessary for respect of the rights or reputations of others, or necessary for national security, public order, or public health or morals. See the discussion of the Faurisson case, below.