Criminal conviction over disparaging religious doctrines not a violation of freedom of expression: potential IP implications of the latest ECtHR ruling

A few days ago the European Court of Human Rights (ECtHR) issued yet another interesting judgment, which - albeit not directly related to IP - might be nonetheless relevant for the interpretation and application of public policy/morality exclusions, especially in the case of blasphemous and offensive subject matter.

The decision is the one in E.S. v Austria, Application No 38450/12.

Background

The case related to the applicant's criminal conviction in Austria for disparaging religious doctrines (Articles 188 and 283 of the Austrian Criminal Code), and her claim that this violated her freedom of expression under Article 10 of the European Convention on Human Rights (ECHR).

More specifically, the conviction resulted from a series of public seminars entitled 'Basic Information on Islam' that the applicant had delivered at the right-wing Freedom Party Education Institute. 

One of these seminars was attended by an undercover journalist, whose publication requested that a preliminary investigation be instituted against the applicant. 

Eventually, the applicant was convicted due to her statements suggesting that Muhammad - because of his marriage to a six-year old child (Aisha) - had paedophilic tendencies, and would not be, as such, a worthy subject of worship. Austrian courts found that it could not be established that the applicant had intended to decry all Muslims. Rather, she had meant to criticize the unreflecting imitation of a role model. According to the courts at first instance and on appeal, it would not be correct to consider child marriage as akin to paedophilia. In particular, because paedophilia is behaviour which is ostracized by society and outlawed, it would be evident that the applicant’s statements were capable of causing indignation. According to the first instance court,

the applicant had intended to wrongfully accuse Muhammad of having paedophilic tendencies. Even though criticising child marriages was justifiable, she had accused a subject of religious worship of having a primary sexual interest in children’s bodies, which she had deduced from his marriage with a child, disregarding the notion that the marriage had continued until the Prophet’s death, when Aisha [with whom the marriage was consummated when she was 9] had already turned eighteen and had therefore passed the age of puberty. In addition, the court found that because of the public nature of the seminars, which had not been limited to members of the Freedom Party, it was conceivable that at least some of the participants might have been disturbed by the statements.

According to the Austrian courts, freedom of expression is not limitless, and is subject to duties and responsibilities, such as refraining from making statements which hurt others without reason and therefore do not contribute to a debate of public interest. A balancing exercise between the rights under Article 9 ECHR (religious freedom) on the one hand and those under Article 10 ECHR on the other needs to be carried out. 

The Austrian Supreme Court also sided with the lower courts, holding that the aim of the interference with the applicant' freedom of expression had been to protect religious peace and the religious feelings of others and was therefore legitimate. The court concluded that the applicant:

had not aimed to contribute to a serious debate about Islam or the phenomenon of child marriage, but merely to defame Muhammad by accusing him of a specific sexual preference, based on the assumption that he had had sexual intercourse with a prepubescent child, in order to show that he was not a worthy subject of worship.

Having exhausted all internal remedies, the applicant decided to bring her case before the ECtHR, claiming that her conviction under Austrian law had violated her Article 10 ECHR freedom of expression by wrongfully considering her statements are value judgments. Furthermore, she submitted that Austrian courts had overlooked to consider that religious groups have to be regarded as public institutions and therefore have to tolerate severe attacks, including those based on untrue facts, insofar as said attacks do not incite to violence.

The ECtHR analysis

The ECtHR admitted that the applicant's criminal conviction had interfered with her freedom of expression. However, any such interference would not violate Article 10 ECHR if it is

• prescribed by law [which was the case here], 
• pursues one or more of the legitimate aims referred to in Article 10(2) ECHR [in this case, the aim would be to protect religious peace], and
• is “necessary in a democratic society” in order to achieve the aim or aims in question.

Censorship?

"Necessary in a democratic society"

With particular regard to the latter, the Court highlighted how, on the one hand, those who choose to exercise the freedom to manifest their religion under Article 9 ECHR cannot expect to be exempt from criticism; on the other hand, freedom of expression does not extend to gratuitously offensive and profane remarks addressed at objects of veneration [readers might recall that the ECtHR made these very remarks in the recent decision in Sekmadienis Ltd v Lithuania, discussed here]:

Where such expressions go beyond the limits of a critical denial of other people’s religious beliefs and are likely to incite religious intolerance, for example in the event of an improper or even abusive attack on an object of religious veneration, a State may legitimately consider them to be incompatible with respect for the freedom of thought, conscience and religion and take proportionate restrictive measures . . . In addition, expressions that seek to spread, incite or justify hatred based on intolerance, including religious intolerance, do not enjoy the protection afforded by Article 10 of the Convention. 

The discretion of individual contracting parties

All this said, individual states enjoy a wide margin of appreciation when regulating freedom of expression in relation to matters liable to offend personal convictions within the sphere of morals or religion. In any case, they also have a positive obligation under Article 9 ECHR to ensure the peaceful co‑existence and mutual tolerance of all religions and those not belonging to a religious group.

Statements of fact and value judgments

The ECtHR then recalled that a distinction should be made between statements of fact and value judgments. As regards the latter, 

the proportionality of an interference may depend on whether there exists a sufficient factual basis for the impugned statement, since even a value judgment without any factual basis to support it may be excessive.

Conclusion

In light of all these principles, the ECtHR concluded that, although Austria would enjoy a wide margin of appreciation, the fact that the applicant had made her statements in public in the context of seminars entitled in such a way as to convey the impression of objectivity, meant that the seminars were attended by different groups of people. As such, she should have been aware that "her statements were partly based on untrue facts and apt to arouse (justified) indignation in others."

As such, Austrian courts did not unduly interfered with the applicant's freedom of expression.

Iconic photograph:
commuter reads Lady Chatterley's Lover
on the London Tube the day
the book went on sale to the general public

Comment

This latest ECthR decision is substantially in line with the approach taken in Sekmadienis Ltd v Lithuania, a case whose national proceedings related to advertisements using Jesus look-alike models and phrases referring to him. The difference between the two cases is that, while in Sekmadienis the expression found to be against public morals was arguably used in a humorous context, here the intent of the applicant was to criticize. 

Whether one agrees or not with the analysis of the ECtHR in either case, both might be helpful when it comes to interpreting public policy/morality exclusions in IP law, especially with regard to trade mark applications and copyright enforcement.

With regard to trade marks, the test advanced by the ECThR in E.S. v Austria appears in line with the one that the Appointed Person has suggested for UK trade mark applications. Signs which "justifiably cause outrage or would be the subject of justifiable censure as being likely significantly to undermine current religious, family or social values" (Ghazilian's Application) would not be eligible for registration. This was for instance the case of JESUS for clothing, on grounds that branding that amply words or images with a religious significance can have a "seriously troubling effect on people with religious beliefs".

In the literary and artistic field, issues of alleged immorality or obscenity have been considered on a number of occasions. Under UK copyright law there remains a provision (section 171(3) CDPA) that leaves unaffected affects any rule of law preventing or restricting the enforcement of copyright, on grounds of public interest or otherwise. 

Furthermore, in the past courts have considered copyright subject matter under the lens of obscenity. One of the best-known obscenity trials in the recent history of literature is probably the one concerning DH Lawrence's Lady Chatterley's Lover. 

After the book was finalized in 1928, it did not have an easy life and was at the centre of obscenity proceedings both in the US and in the UK. As regards the latter, prosecution was brought under the Obscene Publications Act 1959 (R v Penguin Books Ltd [1961] Crim LR 176). Eventually, the jury found in favour of the defendant Penguin Books. This was arguably the beginning of new, more permissive era, for literature. Only a few days ago, a copy of Lady Chatterley’s Lover used by the judge who presided over the trials was sold for £56,250 at Sotheby’s auction house.