Hate Speech and the European Court of Human Rights: Whatever Happened to the Right to Offend, Shock or Disturb?

Abstract

In Handyside v. The United Kingdom, the European Court of Human Rights (ECHR) held that the right to freedom of expression, as provided for in Article 10 of the European Convention on Human Rights protects not only expressions that are favorably received but also those that ‘offend, shock or disturb’. 1 Yet, the Court has since developed a substantial body of inconsistent case-law allowing restrictions on ‘hate speech’ that severely questions the degree to which offensive, shocking and disturbing speech is truly protected by the ECHR. Against a qualitative and quantitative backdrop, the authors argue that the Court and previously the Commission, have adopted an overly restrictive approach to hate speech, which fails to provide adequate protection to political speech on controversial issues, including criticism of public officials and government institutions and has created an inconsistent and even arbitrary body of case law. Instead, jurisdictions that recognize a need to balance the freedom of expression with limits on hate speech have adopted more convincing approaches of hate speech, providing a robust protection of free speech while leaving room for the State to curtail the most extreme forms of non-violent hate speech.