Hostname: page-component-586b7cd67f-rdxmf Total loading time: 0 Render date: 2024-11-30T15:20:04.953Z Has data issue: false hasContentIssue false
  • English
  • Français

Hate-speech laws: consistency with national and international human rights law*

Published online by Cambridge University Press:  02 January 2018

Dominic McGoldrick  and
Thérèse O'Donnell
Dominic McGoldrick
Affiliation:
International and European Law Unit, School of Law, University of Liverpool
Thérèse O'Donnell
Affiliation:
International and European Law Unit, School of Law, University of Liverpool
Get access Rights & Permissions [Opens in a new window]

Extract

Racism has climbed the political agenda at national, European and international levels. Reports from national and international non-governmental organisations (NGO’s) and inter-governmental organisations have focused considerable attention on racism and xenophobia and document an increase in racism, xenophobia, anti-Semitism and race-related activities. As racism has climbed the political agendas, so there has been a substantial increase in the number of national, European and international legal instruments devoted to it. In particular, race-related restrictions on freedom of expression (‘hate-speech’) are increasing and seem likely to continue to do so. Such restrictions give rise to controversy in terms of constitutionality, legal policy and consistency with European and international human rights law. There are also differences of views between the policies of NGO's on restrictions on racist speech.

Type
Research Article
Information
Legal Studies , Volume 18 , Issue 4 , December 1998 , pp. 453 - 485
Copyright
Copyright © Society of Legal Scholars 1998

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

*

The authors are grateful to Professor Colin Warbrick for his comments on an earlier draft of this article.

References

1. See Ford, G Report of the Findings of the Committee of inquiry into Racism and Xenophobia (Luxembourg: EC, 1991)Google Scholar; Anti-Semitism World Report 1997 (New York/London: Institute for Jewish Policy Research/American Jewish Committee, 1997)Google Scholar; Gordon, , in Coliver, below n 3; C Gearty ‘Racism, Religious Intolerance and Xenophobia in Europe’ in Alston, P. (ed) An EU Human Rights Agenda for the Year 2000 (Oxford: OUP, forthcoming)Google Scholar; C Shore ‘Ethnicity, Xenophobia and the Boundaries of Europe’ 4 Int J on Minority and Group Rights 247.

2. See eg Human Rights Watch/Helsinki, ‘Foreigners Out’: Xenophobia and Right Wing Violence in Germany (1992); Human Rights Watch/Helsinki Germany for the Germans: Xenophobia and Racial Violence in Germany (1995).

3. See Coliver, S (ed) Striking a Balance: Hate Speech, Freedom of Expression and Non-Discrimination (London/ Essex: ARTICLE 19/ Human Rights Centre, University of Essex, 1992)Google Scholar; Kretzmer, D ‘Freedom of Speech and Racism’ (1987) 8 Cardozo LR 45; Greenawalt, K Speech, Crimes and the Uses of Language (Oxford: OUP, 1989)Google Scholar; S K Sorabjee ‘Freedom of Expression’ (1994) 19(4) CLB 17.

4. See Weigandt, M H The Pitfalls of International Human Rights Monitoring: Some Critical Remarks on the 1995 Human Rights Watch/ Helsinki Report on Xenophobia in Germany’ (1996) 18 HRQ 833 CrossRefGoogle Scholar and the subsequent discussion by M Fullerton, p 843 and M H Weigandt (1997) 19 HRQ, 449; ‘Policy Statements from Human Rights Organizations’ in Coliver, above n 3, 315, containing statements from ARTICLE 19, American Civil Liberties Union, American-Arab Relations committee, Anti-Defamation League of B'nai B'rith, Board of Deputies of British Jews, Commission for Racial Equality, Committee on the Administration of Justice, Human Rights Watch, Justice, Liberty and the Islamic Society for the Promotion of Religious Tolerance.

5. Eg in the First Amendment to the United States Constitution and s 2(b) of the Canadian Charter of Rights and Freedoms (1982).

6. Eg in Australia on the basis of the decisions of the High Court in Nationwide News Pty Ltd v Wills (1992) ALJR 658 and Australian Capital Television Pty Ltd v The Commonwealth (1992) ALJR 695.

7. See Attorney General v Guardian Newspapers (No 2) [1990] 1 AC 109 (HL); Derbyshire County Council v Times Newspaper Ltd [1993] AC 534 (HL).Google ScholarPubMed

8. See Der Westhuizen, J Van ‘Freedom of Expression’, in Van Wyk, D, Dugard, J., De Villiers, B and Davis, D (eds) Rights and Constitutionalism - The New South African Legal Order (Oxford: Clarendon Press, 1996) pp 264–291 Google Scholar; S Kentridge ‘Freedom of Speech: Is it the Primary Right?’ (1996) 45 ICLQ 253.

9. See Barendt, E M Freedom of speech (Oxford: Clarendon Press, 1987) pp 1–36 Google Scholar; F Schauer ‘The Phenomenology of Speech and Harm’ (1993) 103 Ethics 635.

10. See Campbell, T ‘Rationales for Freedom of Communication’ in Campbell, T and Sadurski, W (eds) Freedom of Communication (Aldershot: Dartmouth, 1994) p 17–44 Google Scholar; R Post ‘The Constitutional Concept of Public Discourse: Outrageous Opinion, Democratic Deliberation, and %Hustler Magazine v Falwell’ (1990) 103 Harvard LR 601; R Post ‘Managing Deliberation: The Quandary of Democratic Dialogue’ (1993) 103 Ethics 654.

11. This relates both to distinguishing expression from action and to ascertaining the scope of potentially protected speech. the leading example of the latter is the Us Supreme Court's interpretation of the First Amendment so as to exclude obscenity (hard-core pictorial pornography): see Miller v California (1973) 413 US 15, Roth v United States (1974) 354 US 323.Google Scholar

12. See above n 3.

13. See Brandenburg v Ohio (1969) 395 US 444 Google ScholarPubMed (publicity by the Ku Klux Klan); Smith v Collin (1978) 439 US 916 (proposed Nazi march though an area populated by Jewish concentration camp survivors). From an extensive literature see the essays by Schneider, Delgado and Strossen in Coliver, above n 3; A D'Amato ‘Free Speech and Religious, Racial and Sexual Harassment: Harmful Speech and the Culture of Indeterminacy’ (1991) 32 Wm & Mary LR 329; N Dorsen ‘Is there a right to stop offensive speech? The case of the Nazis in Skokie’ in Gostin, L (ed) Civil Liberties in Conflict (New York/London: Routledge, 1988) p 122 Google ScholarPubMed; Bollinger, Lee C The Tolerant Society: Freedom of Speech and Extremist Speech in America (New York: OUP, 1986)Google Scholar; Heyman, S J Hate Speech and the Constitution (New York: Garland, 1996)Google Scholar; Marcus, L R Fighting Words: the Politics of Hateful Speech (Westport, Conn: Praeger, 1996)Google Scholar. For an extreme US case see R A V v City ofst Paul (1992) 112 S Ct 2538. A major contemporary issue concerns the constitutionality of university campus codes on speech.

14. See W J Wolffe ‘Values in Conflict: Incitement to Racial Hatred and the Public Order Act’ [1987] PL 85; Gordon, P. Racial Violence and Harassment (London: Runnymede Trust, 1990)Google Scholar; essays by Oyediran and by Bindman in Coliver above n 3; Feldman, D Civil Liberties and Human Rights in England and Wales (Oxford: OUP, 1993) pp 547–579, 782–842Google Scholar; Criminal Justice and Public Order Act 1994, s 154. See the Crime and Disorder Act 1998, ss 28–33 on racially aggravated offences and ss 82, 96 on increases in sentences for racial aggravation.

15. See Roth, S J Making the Denial of the Holocaust a Crime in Law’ (1982) 1 Research Report of the Institute of Jewish Affairs 1–12 Google Scholar; S J Roth ‘The Legal Fight Against Anti-Semitism- Survey of Developments in 1992’ (hereinafter ‘1992 survey’), (1993) 23 Israel YHR 36–39; S J Roth’ The Legal Fight Against Anti-Semitism - Survey of Developments in 1993‘(hereinafter’ 1993 Survey’), Supplement to (1995) 25 Israel YHR 100–105; S J Roth ‘Denial of the Holocaust as an Issue of Law’ (1993) 23 Israel YHR 215; M Prutschi ‘Holocaust Denial Today’http://www.almanac.bc.ca.hweb.orgs.canadian.canadian-jewish-congress/hdt-06.html; Radio Islam ‘What is Holocaust Denial’http://www.flashback.se/~rislam/english/revision/denial.htm; Seidel, G The Holocaust Denial: anti-Semitism, racism and the new right (Leeds: Beyond the Pale Collective, 1986)Google Scholar; A A Ryan Jr ‘Holocaust and Human Rights Law: the 4th international conference’ (1992) 12 Boston College Third World LJ 1. There is a massive literature on the Holocaust. For a recent contribution see Langer, L L Admitting the Holocaust: Collected Essays (Oxford: OUP, 1995)Google Scholar. Considerable controversy occasioned the publication of Goldhagen, D P Hitler's Willing Executioners-Ordinary Germans and the Holocaust (New York: Knopf, 1996; London: Abacus, 1997)Google Scholar. See ‘Jewish Groups call for ban on Holocaust book’ The Times, 12 January 1998, p 12, col 2.

16. Federal Constitutional Law Amending the Prohibition Law, Law No 148 (1992).

17. Act of 23 March 1995 prohibiting the denial, minimisation, justification or approval of the genocide committed by the German national socialist regime during the Second World War.

18. Federal German Criminal Code, art 130(2)(3); See E Stein ‘History Against Free Speech: The New German Law against the “Auschwitz - and other - Lies”’ (1986). 85 Michigan LR 277. More generally on Germany see Hoffman in Coliver, above n 3.

19. Denial of Holocaust (Prohibition) Law 5746–1986. More generally on Israel see the essays by Lederman and Tabory and by Schoffman in Coliver, above n 3.

20. Swiss Penal Code, art 26 1b.

21. See section 5 below.

22. See Roth, 1993 Survey, above n 15, pp 100–102.

23. The Bill was introduced by Mike Gapes Mp. the then opposition Labour party, now in government, indicated some support for giving the issue serious consideration. See G Bindman ‘Outlawing Holocaust Denial’ (1997) 147 NLJ 466, 468; D Butler ‘Holocaust Denial in England’ 1997(4) Web Journal of Current Legal Issues.Google Scholar

24. See, for example, the range of situations set out in art 5 of the Race Discrimination Convention (1965). See also art 6 of that Convention on ‘Effective protection and remedies…against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from these tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination’. See Banton, below n 90, pp 209–221; L K v Netherlands, Communication No 4/1991, (1993) 14 HRLJ 249.Google Scholar

25. See Delgado, R Words That Wound: a Tort Action for Racial Insults, Epithets and Name-Calling’ (1982) 17 Harv CR-CL LR 133 Google Scholar; Bernstein, R D ‘First Amendment Limits on Tort Liability for Words Intended to Inflict Severe Emotional Distress’ (1985) 85 Columbia LR 1749; Hustler Magazine v Falwell (l988) 485 US 46Google Scholar.

26. See the Anti-Discrimination (Racial Vilification) Amendment Act No 48 (1989) (New South Wales), discussed by Ch'ang in Coliver, above n 3. 87.

27. See generally Bessman, R, ‘The Constitutionality of Group Libel Offences in the Canadian Criminal Code’ (1988) 17 Manitoba LJ 183 Google Scholar. The possibilities of group libel are not of course limited to Jewish groups. See also Jones, T D Human Rights: Group Defamation, Freedom of Expression and the Law of Nations (The Hague: Nijhoff, 1997)Google Scholar.

28. Even this element has caused consternation in Us jurisprudential thinking because of the argument that to punish racial motivation is to punish an individual on the basis of an element of their freedom of expression. See H J Bourguignon ‘the Us Supreme Court and Freedom of Expression - October Term 1992’ (1994) 15 HRLJ 137 Google Scholar; Schneider in Coliver, above n 3, 269 at 280–282; State of Wisconsin v Mitchell (1993) 113 S Ct 2194; R A V v City of St Paul (1992) 112 S Ct 2538; E Silvermann ‘Cultures in Conflict: Does Regulation of Hate Crime Conform with the Constitution?’ (1993) 1(3) Eur J Crime L Cr J 246. In terms of UK sentencing practice, a racist motivation can constitute an aggravating factor. See Editorial ‘Hate Crimes’ [1994] Crim LR 313; James B Jacobs ‘Should Hate be a Crime’ (1993) 113 Public Interest 3. For an excellent analysis see I Hare ‘Legislating Against Hate - The Legal Response to Bias Crimes’ (1997) 17(3) OJLS 415. See the Crime and Disorder Act 1998, above n 14.

29. Thus, Roth, 1993 Survey, above n 15, p 103, reports the dropping of a prosecution on the basis that although the incriminating statements did trivialise, they did not grossly trivialise.

30. See Lingens v Austria (1986) Series A, No 103: De Hues and Gijsels v Belgium Series A, No 733 (1997), pp 42–47 on the careful distinction between facts and value judgments.

31. Series A, No 239 (1992). See also Castells v Spain Case A236 (1992); Oberschlick v Austria (No 2), Series A, No 666 (1997): ‘Such an opinion may, however, be excessive, in particular in the absence of any factual basis…’, para 33.

32. See R v Keegstra [1990] 3 SCR 697 Google ScholarPubMed; [1992] 2 WWR 1. For comments on Keegstra see Weinrib, L E ‘Hate Promotion in a Free and Democratic Society’ (1991) 36 McGill LJ 1416 Google Scholar: Bercusson, D and Wertheirner, D ‘A Trust Betrayed: The Keegstra Affair (Toronto: Doubleday Canada, 1985)Google Scholar: M Valois ‘Hate Propaganda, section 2(b) and section 1 of the Charter: a Canadian constitutional dilemma’ (1993) 26 Revue Juridique Themis (Canada) 373. For a comparison of US and Canadian approaches, see Greenawalt, K Fighting Words: Individuals, Communities, and Liberties of Speech (Princeton: Princeton University Press, 1995)Google Scholar.

33. Wilson, L'Hereux-Dube and Gonthier JJ concurred.

34. The similarity of s 1 of the Charter with art 10(2) ECHR is often commented upon.

35. [1986] 1 SCR 103.

36. La Forest and Sopinka JJ concurred.

37. La Forest J considered it unnecessary to determine this issue.

38. [1990] SCR 870; (1991) 77 DLR 128 (4th).

39. [1990] SCR 892; (1991) 75 DLR (4th) 577. See also Re Canadian Human Rights Commission v Canadian Liberty Net (1992) 90 DLR (4th) 190 Google Scholar: interlocutory injunction granted to prevent the communication of telephone messages containing hate-propaganda against Jewish and non-white persons, including holocaust denial. Section 13(1) of the Canadian Human Rights Act was a reasonable limit on freedom of expression in s 2(b) of the Charter.

40. Communication No 104/1981, April 1983. Annual Report of the HRC to the General Assembly, UN Doc A/38/40, p 231 (1983).

41. (1993) 95 DLR (4th) 202; [1992] 75 CCC (3d) 449. See Weimann, G and Winn, C Hate on Trial: the Zundel Affair, the Media, rind Public Opinion in Canada (Oakville: Mosaic Press, 1986)Google Scholar.

42. The majority was composed of La Forest, L'Hereux-Dub, Sopinka and McLachlin JJ. The minority was composed of Gonthier, Cory and Iacobucci JJ. The judgment contains a useful bibliography on hate speech.

43. (1994) 114 DLR (4th) 370.

44. (1996) 133 DLR (4th) 1.

45. La Forest J delivered the judgment of the court.

46. Cf Re Jazairi v Ontario Human Rights Commission; a-G of Ontario, Intervenor (1997) 146 DLR (4th) 297 Google Scholar: a professor alleged that he was denied promotion on the basis of his political beliefs about the State of Israel and that this violated the Human Rights Code. The Divisional Court in Ontario held: (i) that ‘creed’ required an element of religious belief and did not include political opinion; and (ii) the omission of protection on the basis of political belief did not violate the equality provision in art 15 of the Charter.

47. See the ‘EC Declaration on Racism and Xenophobia’ Maastricht 1991, Bull EC 12–1991, point 1.19; also reproduced in Coliver, above n 3, p 387: Gearty above n 1; Shore above n 1.

48. See D Curtin and M Guerts ‘Race Discrimination and the European Union Anno 1996: from Rhetoric to Legal Remedy?’ (1996) 14/2 Netherlands Quarterly of Human Rights 147 Google Scholar. The European Parliament has also been very active in the area. Article 6a EC Treaty, as inserted by the Treaty of Amsterdam (1997), which revises the Treaty on European Union, provides for the Council to take appropriate action to combat discrimination based on sex, racial or ethnic conflict, religion or belief, disability, age or sexual orientation.

49. 96/443/JHA, OJ [1996] L185/5.

50. Ibid, Title I, A.

51. The UK declaration was to the effect that it would apply Title I where the relevant behaviour is threatening, abusive or insulting and is carried out with the intention of stirring up racial hatred or is likely to do so. Similarly, in relation to search and seizure of material under Title I.B and Title II, where the material was intended for dissemination in another member state and was likely to incite racial hatred there. If problems arose from the application of the Declaration the UK would consult with the member state concerned with a view to overcoming problems raised: OJ [1996] L185/7.

52. See Roth in Coliver, above n 3, p 55.

53. See Council of Europe Human Rights- Information Sheet No 33 (1993) p 153.Google ScholarPubMed

54. The Council of Europe has launched a website on combating racism and intolerance (http://www.ecri.coe.fr).

55. See Harris, D, O'Boyle, M and Warbrick, C Law of the European Convention on Human Rights (London: Butterworths, 1995) pp 374, 409–411Google Scholar.

56. See Handyside v UK Series A, No 24 (1976), para 49.Google Scholar

57. See Castells v Spain Series A, No 236 (1992) para 42; Vereinigung Demokratischer Soldaten Osterreichs and Gubi v Ausrtia Series A, No 302, (1994) para 36.Google Scholar

58. Appn Nos 8384/78 and 8406/78, 18 DR 187 (1979).

59. Appn No 9235/81, 29 DR 194 (1982).

60. Appn No 12194/86, 56 DR 205 (1988).

61. See also the earlier case concerning the German Communist Party, Kpd v Frg a 250/57 (1957) 1 Yearbook of European Convention 222 Google Scholar. There must be some doubt as to whether this case would be decided the same way today given the radical change in political conditions in Central and Eastern Europe and the former Soviet Union. Cf though, the 10:9 decision on art 10 in Vogt v Germany Series A, No 454 (1995) concerning V's political activities as a member of the German Communist Party.

62. On art 17 see Harris, O'Boyle and Warbrick, above n 55, pp 510–513.

63. The UK's Human Rights Act 1998, which incorporates the ECHR into UK law, treats art 17 as an interpretative article: see s 1 of the Act.

64. Appn No 12774/87, 62 DR (1989) 216.

65. Appn No 21128/92, 80-A DR 94.

66. Appn No 25096/94, 82-A DR 117.

67. Appn No 25062/94, 83-B DR 77 (1995).

68. Appn No 25992/94, 84-A DR 149 (1996).

69. Appn No 21318/93, 18 EHRR-CD, pp 170–72.

70. The most recent applications are Appn No22479193 Ozturk v Turkey, concerning the conviction of a publisher for incitement to hatred and the confiscation of copies of the book in question: Commission unanimously found a violation of art 10 (30 June 1998). This has been referred to the court; Appn No24773/94 Wabl v Austria, concerning an injunction prohibiting the applicant from repeating the expression ‘Nazi journalism’, which he had used in respect of a newspaper which published an article about him: declared admissible, April 1997. An important current case is Appn 24662/94 Lehideux and Isorni v France. The applicants were convicted for publication of a full-page advertisement in Le Monde defending the actions of Marshal Petain. The conviction was based on the text constituting an apologia for the offence of collaborating with the enemy (fait l ‘apologie… des crimes ou delits de collaboration aver l’ ennemi). In its admissibility decision the Commission did not consider that the text manifestly constituted an activity within the meaning of art 17 ECHR. The Commission applied a margin of appreciation analysis and found by 23 votes to eight that the sanctions imposed by France were disproportionate to the legitimate aims pursued. The court also found a violation of art 10, by 15 votes to six (23 September 1998): question at issue did not belong to the category of clearly established historical facts, such as the Holocaust.

71. H, W, P and K v Austria, above n 64 at 220. On the immediate background to the Convention in terms of it as a reaction to the human rights violations in European states during the Second World War, see Harris, O'Boyle and Warbrick, above n 55, pp 1–3.

72. Remer v Germany; Honsik v Austria; Ochensberger v Austria, above nn 66, 67, 69.

73. Appn 31159/96, 86-A DR 184 (1996).

74. Series A, No A289 (1995).

75. For the transcript of the relevant part of the interview, see Jersild para 11.

76. The Commission found a violation by 12 votes to four. The majority stressed the seriousness of the threat of racial persecution in Europe and the provisions of the ICERD. One of the Commissioners, Liddy, made reference to art 17 ECHR.

77. Jersild para 33.

78. Ibid, paras 21, 30–1. The court made no reference to art 20(2) ICCPR.

79. The court referred to The Observer and the Guardian v UK, Series A, No 216, para 59 (1991). See also Pragerand Oberschlick v Austria Series A, No 313 (1995).

80. See Jersild para 35.

81. Harris, O'Boyle and Warbrick, above n 55 at pp410–411, comment that: ‘While some expression, by reason of its content alone may seriously threaten democratic values, the language or images must be examined in their context: the very seriousness of the perceived threat is a reason why the phenomenon of racist speech may in a democratic society be properly subject to dispassionate analysis.’.

82. Jersild para35.

83. A minority of seven judges were against the decision on art 10 on the basis that Jersild had failed to make it clear that the views expressed in the programme were unacceptable or to dissociate himself from them.

84. Series A, No 295, (1995) para 49. See also the joint dissenting opinion of Judges Palm, Pekkanen and Makarczyk at 24–25.

85. Some religious groups, such as Sikhs and Jews, are also racial groups, see Mandla v Dowell Lee [1983] AC 548. On religious discrimination see the Fair Employment (Northern Ireland) Acts 1976 and 1989.

86. Cf the approach of the court in Kokkinakis v Greece, Series A, No 260-A (1993); Wingrove v UK, Series A, No 699 (1996).

87. See Harris, O'Boyle and Warbrick, above n 55, p 462. Such a right is under consideration, see section 3(c) above.

88. Rechetov, Cf Y Incitement to National Enmity in the Context of International Law: Foreign and Soviet Practice’ (1992) 22 Israel YHR 83.Google Scholar

89. It is also reflected in art 19 of the Universal Declaration of Human Rights (1948) and art IV of the American Declaration of Rights and Duties (1948).

90. See the texts of the reservations in Coliver, above n 3, pp 395–399; Partsch in Coliver, ibid; Banton, M International Action Against Racial Discrimination (Oxford: Clarendon Press, 1996)CrossRefGoogle Scholar.

91. Reproduced in Banton, above n 90, pp 335–336.

92. Annual Report of the CERD, UN Doc A/48/18, para 422 (1994).

93. For CERD's most recent annual report see UN Doc A/52/18 (New York: United Nations, 1997).

94. For the reports see UN Docs E/CN.4/1994/7; 1995/54; 1996/00; 1997/71 and Add 1 and 2. See also UN Secretary-Generals' Report on the Programme of Action for the Third Decade to Combat Racism and Racial Discrimination’, UN Doc E/CN.4/1997/68.

95. Communication No 550/1993, views of the Human Rights Committee adopted on 8 November 1996, United Nations Document Ccpr/C/58/D/550/1993 (16 December 1996), 4(2) International Human Rights Reports (1997) 444 Google Scholar; (1997) 18 HRLJ 40. Note that, pursuant to Rule 85 of the Committee's Rules of Procedure, two members of the Committee, Christine Chanet (France) and Thomas Buergenthal (USA) did not participate in the consideration of the case. A statement by Mr Buergenthal, appended to the Committee's view, stated: ‘As a survivor of the concentration camps of Auschwitz and Sachsenhausen whose father, maternal grandparents and many other family members were killed in the Nazi Holocaust, I have no choice but to recuse myself from participating in the decision of this case’ (p 15 of the views). On Buergenthal, see Jo M Pasqualicci ‘Thomas Buergenthal: Holocaust Survivor to Human Rights Advocate’ (1996) 18 HRQ 877. It would have been interesting to see whether the opinion of Professor Buergenthal would have been sufficiently influenced by US jurisprudence for him to have found a violation of art 19.

96. See McGoldrick, D The Human Rights Committee (Oxford: Clarendon, 1991, updated 1994)Google Scholar.

97. See Harris, D and Joseph, S (eds) The International Covenant on Civil and Political Rights and United Kingdom Law (Oxford: Clarendon, 1995)Google Scholar. UK ratification of OPI is under consideration by the government.

98. See the Us reservation to arts 19 and 20 of the Iccpr, discussed in D P Stewart ‘U.S. Ratification of the Covenant on Civil and Political Rights: the Significance of the Reservations, Understandings and Declarations’ (1993) 14 HRLJ 77.Google Scholar

99. On art 19, see McGoldrick above n 96, pp 459–479; Nowak, M UN Covenant on Civil and Political Rights CCPR Commentary (Engel: Kehl, 1993) p 335 Google Scholar; D Feldman ‘Freedom of Expression’ in Harris and Joseph, above n 97, pp 391–437; General Comment 10(19) of the Human Rights Committee, UN Doc A/38/40, p 109.

100. On art 20 see McGoldrick above n 96, pp 480–497; Nowak, above n 99, p 359; Feldman above n 99 at 431–435; General Comment 11(19) of the Human Rights Committee, UN Doc A/38/40, pp 109–110.

101. See McGoldrick, above n 96, pp 163–166.

102. He also raised complaints about the impartiality of the Court of Appeal (art 14 ICCPR), a violation of the principle ne bis in idem on the basis of separate prosecutions relating to the same interview (art 14(7) ICCPR), and that he had been and continued to be subject to threats and physical aggression to such an extent that his life was in danger (art 6 ICCPR). He claimed that the judicial authorities had been reluctant to investigate these aggressions against him.

103. Para 6.1.

104. For the text see the Code Penal (Dalloz). In 1987 a similar amendment had made vindication of crimes against humanity an offence. See R Errera ‘Recent Developments in Anti-Nazi and Anti-Discrimination Legislation’ (1989) 23(I) Patterns of Prejudice 47 Google Scholar; A Donnet ‘Le delit de revisionnisme: etude de l'article 9 de la loi francaise du 13 juillet tendant a reprimer tout acte raciste, antisemite et xenophobe, ainsi que de la jurisprudence anterieure’ (1993) Annuales de Droit de Louvain: Revue Tnmestrelle de Droit Belge, 423.

105. For the text of the Charter see 41 AJIL (1947) 224.Google Scholar

106. On the importance in French law of actions initiated by private associations see Errera in Coliver, above n 3.

107. He was again prosecuted in 1993 for revisionist statements in the journal Rivarol. Earlier civil actions had also been successfully brought against him. See Seidel, above n 15, ch 5 for an account.

108. Faurisson Case, para 2.6.

109. See Faurisson, R ‘the Rumour of Auschwitz - the Gas Chamber Problem’ Le Monde, 29 December 1978Google Scholar; ibid, ‘How Many Deaths at Auschwitz?’, http://www.webcom.com/ezundel/english/debate/appfaur1.html; ibid., ‘Elie Weisel: False Witness’, Radio Islam, http://www.flashback.se/rislam/englis/revision/weisel.htm; J Shields ‘French Revisionism on Trial: The Case of Robert Faurisson’ (1991) 25(1) Patterns of Prejudice 86; M Evans ‘Historical Revisionism Left and Right’ http://www.wessman.com/kennylee/ArchiveA.VE/MARK%20EVANS.holocuastrevision.html. The leading periodical associated with the revisionist view of history is the Journal of Historical Review, published by the Institute of Historical Review, Los Angeles. More generally, see Baldwin, P. (ed) Reworking the Past: Hitler, the Holocaust and the Historians' debate’ (Boston, Mass: Beacon, 1990)Google Scholar. There are a substantial number of revisionist sites on the internet: see ‘Internet blows cover of anti-Semitic groups’, The Times, 18 July 1997, p 10. For a recent US Supreme Court case on the internet see Reno v American Civil Liberties Union (1997) 117 S Ct 2329; I38 L Ed 2d 874.

110. One of the most important documents in historical revisionism is the ‘Leuchter Report - The End of a Myth: A Report on the alleged gas execution chambers at Auschwitz, Birkenau and Majdanek, Poland’ (C Samisdat Publications, 1988) available at http://www/webcom.com/ezunde/english/leuchter/report/leuchtertoc.html The report concluded that: ‘There were no execution gas chambers at any of these locations. It is the best engineering opinion of this author that the alleged gas chambers at the inspected sites could not have then been, or now, be utilized or seriously concerned to function as execution gas chambers.’ Leuchter was asked to do the report after discussions with Faurisson and at the request of Zundel. Faurisson wrote the foreword to the report. Faurisson also gave evidence at the trial of Zundel, above n 41.

111. For example, he cited the indictment which charged the Germans with the massacre of Polish prisoners of war at Katyn, when subsequently Soviet responsibility for the massacre has clearly been established.

112. Faurisson Case, para 3.1. Noam Chomsky has supported Faurisson's right to freedom of expression while making it clear that Faurisson's conclusions were diametrically opposed to his own. See N Chomsky ‘His Right to Say It’ The Nation, 28 February 1981; ibid, ‘Some Elementary Comments on the Rights of Freedom of Expression’, an avis to Faurisson's memoire en defense, http://www.mit.edu.8001/activities/safe/writings/chomsky-on-free-expression.

113. Faurisson Case, para 5.3.

114. Ibid, para 5.4.

115. Ibid, para 8.I.

116. Quaere what the reaction would be to a ‘genocide denial law’ for the Former Yugoslavia or Rwanda. on whether hate speech laws should be seen as affirmative action or as anti-discrimination, see Sadurski, W ‘on “seeing speech through an equality lens”: a critique of egalitarian arguments for suppression of hate speech and pornography’ (1996) 16(4) OJLS 713 CrossRefGoogle Scholar. See also La Marche, Gara (ed) Speech and Equality: Do We Really Have To Choose? (New York: New York University Press, 1996)Google Scholar; MacKinnon, C A Only Words (London: HarperCollins, 1994)Google Scholar.

117. Faurisson Case, para 8.5, citing the decision of the Seventeenth Criminal Chamber, Tribunal Correcrionnel de Paris of 18 April 1991.

118. Faurisson Case, para 6.

119. Ibid, para 8.7. In a famous trial Galilei Galileo (1564–1642) was forced, on pain of torture or even execution, to say publicly that he did not agree with Copernicus, whose book De Revolfionibus had argued that that the sun, rather than the Earth, was the centre of the universe and that the Earth moved around it. The book was officially banned by the Christian Church from 1616 to 1835.

120. Faurisson Case, para 2.8.

121. On French law, see Errera in Coliver, above n 3.

122. Faurisson Case, para 7.2.

123. Ibid, para 7.3.

124. Ibid, para 4.2.

125. See MA v Italy, the HRC decided that the acts of which MA was convicted - reorganising the dissolved fascist party - were of a kind which are removed from the protection of the Covenant by art 5 thereof and which were in any event justifiably prohibited by Italian law having regard to the provisions of arts 18(3), 19(3) 22(2) and 25 of the Covenant, UN Doc A/39/40, p 190. On art 5 ICCPR see Nowak, above n 99, p 94. 126. See section 3(c) above.

127. Faurisson Case, para 7.5.

128. Appn No 9235/81, 29 DR 194 (1982).

129. Note also the Commission's statement that ‘the protection of these principles (of tolerance and broad-mindedness) may be especially indicated vis-à-vis groups which have historically suffered from discrimination’.

130. See No 84–181 DC, Rec p 78.

131. Faurisson Case, para 7.13.

132. Ibid, para 7.3.

133. See section 5(b) above.

134. See above text to n 40; McGoldrick, above n 96, pp 490–491.

135. See section 2(c) above.

136. This is part of the established jurisprudence of the HRC.

137. Faurisson Case, para 9.3.

138. Cf the view of the Hrc in Mclntyre et al v Canada (1993) 14 HRLJ 171 Google Scholar:’ Article 19, paragraph 2, must be interpreted as encompassing every form of subjective ideas and opinions capable of transmission to others, which are compatible with article 20 of the Covenant, of news and information, of commercial expression and advertising, of works of art, etc; it should not be confined to means of political, cultural or artistic expression … The Committee does not agree either that any of the above forms of expression can be subjected to varying degrees of limitation, with the result that some forms of expression may suffer broader restrictions than others' (para 11.3).

139. Faurisson Case, para 9.5.

140. Ibid, para 9.6.

141. Ibid, para 9.7.

142. See also the opinions of Evantt and Kretzmer, Quiroga and Lallah, section 5(g) below.

143. See generally Harris, O'Boyle and Warbrick, above n 55, pp 283–301. The requirement of proportionality is considered in a number of the individual opinions considered in section 5(g) below.

144. See Harris, O'Boyle and Warbrick. above n 55, pp 290–301; Yourow, H C The Margin of Appreciation Doctrine in the Dvnamics of European Human Rights Jurisprudence, (Hague: Kluwer, 1996)Google Scholar; Merrills, J G The Development of International Law by the European Court of Human Rights (Manchester: Manchester University Press, 2nd edn, 1993) ch 7Google Scholar.

145. UN Doc A/37/40, p 161. See McGoldrick, above n 96, pp 466–469.

146. See section 3(c) above.

147. On art 8 ECHR. see Harris, O'Boyle and Warbrick, above n 55, p 302. On art 17 ICCPR, see Nowak, above n 99. pp 287–301.

148. Matsudd, Cf M J Public Response to Racist Speech: Considering the Victim's Story’, (1989) 87 Michigan LR 2320.CrossRefGoogle Scholar

149. A central problem is far how states can go beyond situations of incitement to racial hatred.

150. Individual opinion of Evatt and Kretzmer, para 4 (emphasis in the original).

151. Ibid, para 5.

152. Roth, S J Denial of the Holocaust as an Issue of Law’ (1993) 23 Israel YHR 215 Google Scholar, argues that when the denial states that the alleged invention of the Holocaust facts is linked to the aim of economic gain, it is the latter turpitude that might constitute incitement to hatred, not the denial itself.

153. The language used here is reminiscent of that under the ECHR, see Hundyside v UK Series A, No 24 (1976).

154. Referred to in the individual opinion of Evatt and Kretzrner, para 8.

155. Ibid, para 9.

156. See section 5(f) above.

157. Individual opinion of Evatt and Kretzmer, para 10.

158. Series A, No 295-A (1994), para 94, considered in section 3(c) above.

159. Individual opinion of Quiroga, p 19, para 2.

160. In its questioning under the reporting procedure under art 40 of the Covenant, the Committee regularly asks how particular laws are interpreted and applied.

161. Individual opinion of Bhagwati, p 23. Quaere other regions of the world?.

162. Ibid, p 24.

163. Ibid. The allusion here is probably to a statement attributed to Voltaire: ‘I detest what you write, but I would give my life to make it possible for you to continue to write it.’ The words were actually S G Tallentyre's summary of Voltaire's attitude towards Helvetius following the burning of the latter's De L'esprit in 1958.