Jacob Mchangama: European leaders have long compromised free expression


World leaders march in Paris following the recent attacks in France (Photo: European Council)

Jacob Mchangama is the founder and executive director of Justitia, a Copenhagen-based think tank focusing on human rights and the rule of law. He has written and commented on human rights in international media including Foreign Policy, Foreign Affairs, The Economist, BBC World, Wall Street Journal Europe, MSNBC, and The Times. He has written and narrated the short documentary film “Collision! Free Speech and Religion”. He tweets @jmchangama

The brutal attack against Charlie Hebdo has seen European leaders rally round the fundamental value of freedom of expression.

French President Francois Hollande led the way by stating: “Today it is the Republic as a whole that has been attacked. The Republic equals freedom of expression.” Prime Minister David Cameron vowed that Britain will “never give up” the values of freedom of speech, and German Chancellor Angela Merkel called the events in Paris “an attack on freedom of expression and the press — a key component of our free democratic culture.” European Union President Donald Tusk stressed that “the European Union stands side by side with France after this terrible act. It is a brutal attack against our fundamental values, against freedom of expression which is a pillar of our democracy.”

This unified commitment to freedom of expression is both admirable and crucial in the aftermath of the killing of cartoonists armed with nothing more than ink, humour and courage. It is also true that freedom of expression is a fundamental European value and that (Western) Europe allows for a much freer debate than most other places in the world. However, European governments and institutions have long compromised this freedom through statements and laws that narrow the limits on permissible speech. Ironically some of these statements and laws target the very kind of offence that Charlie Hebdo excelled in.

Donald Tusk’s principled defence of freedom of expression stands in stark contrast to a 2012 joint statement issued by then EU High Representative for Foreign Affairs Catherine Ashton, as well as the Organisation of Islamic Cooperation and the Arab League that “condemn[ed] any advocacy of religious hatred … While fully recognising freedom of expression, we believe in the importance of respecting all prophets”. The statement followed the furore over the crude anti-Islamic film “The Innocence of Muslims”, and suggests that mocking prophets is tantamount to religious hatred prohibited under international human rights law and thus exempted from the protection of freedom of expression.

The controversy over The Innocence of Muslims prompted none other than Charlie Hebdo to print its own depictions of Mohammed, including one showing Islam’s prophet naked. That decision drew stern condemnations from the French government. Then Foreign Minister Laurent Fabius remarked that “in the present context, given this absurd video that has been aired, strong emotions have been awakened in many Muslim countries. Is it really sensible or intelligent to pour oil on the fire?”

While Charlie Hebdo has won a number of lawsuits other French figures have been convicted or censored under French law. Last year comedian Dieudonné M’bala M’bala was banned from performing his comedy shows publicly, due to their anti-semitic content. And France is not alone. Swedish shock artist Dan Park was sentenced to six months imprisonment in 2014, over a number of purportedly racist posters deemed “gratuitously offensive” to minority groups by a Swedish court. The owner of the gallery that had displayed the cartoons was also convicted and the posters ordered destroyed.

In 2011, a prominent Austrian Islam-critic was convicted of “denigration of religious beliefs” for stating that the prophet Mohammed “had a thing for little girls”. An elderly Austrian man was found guilty of the same offence for yodelling while his Muslim neighbour was praying. In the United Kingdom, an atheist who left caricatures of the Pope, Mohammed and Jesus in a prayer room in John Lennon Airport was similarly convicted and sentenced to six months imprisonment, though the sentence was suspended. A TV personality’s disparaging social media comments about Scotland and Scots recently prompted Scottish police to tweet that it would “thoroughly investigate any reports of offensive or criminal behaviour online and anyone found to be responsible will be robustly dealt with”.

France and numerous other European countries also have bans against Holocaust denial. In 2010, a Muslim group claiming to expose free speech double standards in the aftermath of the Danish cartoon controversy was convicted after publishing a cartoon suggesting that Jews have made up the Holocaust.

When it comes to countering terrorism, European states increasingly target not only expression that incites terrorism but also expression that may constitute “glorification”. Exactly a week after the attack against Charlie Hebdo, Dieudonné once again ran afoul of the law and was detained over a Facebook post. According to Le Monde at least 50 other cases of terror apology have been opened against people in France since the attack. In Denmark, a number of Islamists have been prosecuted for glorifying terrorism following Facebook postings that seemingly approved of terrorism, including the assault on Charlie Hebdo. Recently British Home Secretary Theresa May unveiled plans that would ban “non-violent extremists” from using television and social media to spread their ideology.

While Europe has a sophisticated and elaborate regional system for the protection of human rights, these institutions have frequently sided with the censors over citizens. In 2008 the EU adopted a framework decision obliging all member states to criminalise certain forms of hate speech. The European Court of Human Rights has found the confiscation of a “blasphemous” film, the conviction of a French cartoonist mocking the victims of 9/11, and the banning of religious fundamentalist group Hizb-ut-Tahrir compatible with freedom of expression. The Council of Europe’s current High Commissioner for Human Rights Nils Muižniekshas called for all 47 member states to enact bans against Holocaust denial and gender based hate speech.

These non-exhaustive examples demonstrate that contemporary Europe’s approach to freedom of expression is far more complicated and far less principled than the statements made by its leading politicians in recent days suggest. It is an approach to freedom of expression based on the premise that social peace in increasingly multicultural societies requires restrictions on freedom of expression in order to avoid offending ethnic and religious groups. Thus in 2004, when Dutch film maker Theo Van Gogh was murdered by an Islamist offended by Van Gogh’s controversial and anti-Islamic film “Submission”, the Dutch minister of justice proposed to revive the country’s blasphemy law which had been disused since 1968.  He argued that “if opinions have a potentially damaging effect on society, the government must act … It is not about religion specifically, but any harmful comments in general.”

Such sentiments might appeal to pragmatists in the wake of the tragedy in France. But there is little reason to think that restricting freedom of expression fosters tolerance and social cohesion across a Europe increasingly divided along ethnic and religious lines, and where anti-semitism and other forms of intolerance is on the rise. In fact such laws seem to fuel the feeling of separateness of modern Europe by legally protecting group identities against offence rather than fostering an identity rooted in common citizenship. While minorities may be offended by disparaging comments, insisting that freedom of expression be limited to protect them from racism and offence, is a very dangerous game at a time where far-right movements with questionable commitment to liberal democracy are on the rise. In this context it should not be forgotten that Dutch politician Geert Wilders once proposed banning the Quran and that the leader of Front National Marine Le Pen wants to ban religious head wear, including the Jewish kippah. The freedoms that (sometimes) allow bigots to bait minorities are also the very freedoms that allow Muslims and Jews to practice their faiths freely. By further eroding these freedoms, no one is more than a political majority away from being the target rather than the beneficiary of laws against hatred and offence. Only by reaffirming a genuine and principled defence of freedom of thought, expression and religion can Europe hope to create a society built on real tolerance and respect for diversity, and where cartoonists neither have to fear gunmen nor jail, but only the moral judgment of their fellow citizens.

This guest post was published on 16 January 2015 at indexoncensorship.org

Rashid Razaq: As a Muslim, I know there is no God-given right not to be offended


Rashid Razaq is a reporter for London Evening Standard and a playwright.

What is the solution to the Muslim Problem? Britain has tried multiculturalism; the French, a stricter enforcement of secularism. Neither has been an unequivocal success.

I’m afraid I don’t have the answer. I have only doubts and questions, whereas the terrorists have certainties and guns.

The only thing I can say with a fair amount of confidence is that the right not to be offended is a ridiculous thing. For there is no way to measure a subjective, emotional state other than to ask “Does this offend you?” in the same way you would ask “Are you tired?”, “Are you hungry?”, “Do you love me?”

One person’s silly cartoon is another person’s existential threat. Try as I might, I cannot get offended by a drawing. Maybe I’m a bad Muslim, maybe a true believer would be so mortally wounded by an image, any image, of the Prophet Mohammed that the only remedy is bloodshed. But I don’t think that’s the case. Much of the outrage is manufactured, stoked up by rabble-rousers for political purposes. Because that’s the brilliance of the right not to be offended (Irony — just to be crystal- clear): you can get offended on other people’s behalf, you can get offended about books you haven’t read, about things that may or may not exist.

Loath as I am to bring up scripture in a discussion about religion, the Islamic prohibition against making graven images of the Prophet Mohammed only really applies to Muslims. It stems from the same commandment not to worship false idols, intended to protect against idolatry.

As far as I’m aware neither Stephane Charbonnier nor any of his leading cartoonists at Charlie Hebdo was a practising Muslim. The two victims believed to be Muslims, copy-editor Mustapha Ourad and policeman Ahmed Merabet, appear to have been collateral damage rather than targets.

So, just to make the murders even more pointless, you have Muslims killing non-Muslims for not sufficiently respecting something which they don’t believe in. Irony? I’m not sure.

Not that there is any justification. It is a shabby excuse for a heinous act, convenient religious cover for something that is probably nothing more than a twisted marketing stunt for al Qaeda in Yemen, if initial accounts prove to be true. The killings were not carried out to “avenge” the Prophet’s honour. Their real intent was to remind the West: “We’re still here”.

Many lofty and true words will be written about the need to protect the freedom of expression. But the attack on Charlie Hebdo wasn’t an attack on freedom of expression. It was an attack on an easy target. A group of middle-aged, unarmed cartoonists were never going to be much of a match for battle-hardened jihadists brandishing Kalashnikovs.

Satire is scary for people who can’t live with doubt. Because satire is all about creating doubt, questioning the way things are done, challenging those in power, pushing for change. I don’t know if the killings say more about the power of satire or the weakness of the gunmen’s supposed faith.

The jihadists want us to accept their narrative, that they are brave holy warriors and not just some over-sensitive, bloodthirsty bullies. But I have my doubts. I think the terrorists continue to provoke fear because they’re afraid. Afraid that we’ll realise their brand of religion is a joke.

This article was originally posted at London Evening Standard on January 12, 2015. It is reposted here with permission.

Padraig Reidy: Public outrage — from radio plays to Twitter mobs

(Photo: YouTube/BB TV)

(Photo: YouTube/BB TV)

Patrick Hamilton, the English author and playwright, has now reached the curious position within the literary world of being best known for being overlooked. Hamilton wrote sad, cruel and intensely funny novels of what I’ve taken to calling the Oh-God-The-War-Is-Coming (OGTWIC) genre — a genre of rented rooms, gin and lonely, quietly failing people, usually based in London and the South East, striving grimly, dimly aware that something is going drastically wrong on the continent and their inconsequential existence is unsustainable in its current form (see also Nigel Collins, Julian McClaren-Ross, and George Orwell, to an extent).

Put simply, there are Nazis, and sooner or later there will be a war. In Hamilton’s Hangover Square, George Harvey Bone’s drinking cronies display fascist sympathies, the bullying Peter having actual served time in jail for Blackshirt streetfighting. Orwell’s George Bowling, in 1939’s Coming Up For Air, bemoans the machine world in the perfect line: “Everything’s streamlined now, even the bullet Hitler’s saving for you.”

Perhaps alone among the OGTWIC novelists, Hamilton found fame in Britain before Hitler. His thrilling play Rope debuted on the West End in April 1929, shortly after his 25th birthday, and was an immediate sensation. Rope, later filmed by Alfred Hitchcock, concerned a pair of students who decide to kill a friend, just for the hell of it. But, after the murder, as suspicion grows, their nerve dissolves.

The play was apparently based on the 1924 “Leopold and Loeb” case, in which two wealthy Chicago students, convinced by Nietzsche’s idea of the the Übermensch who live beyond humanity’s moral codes, decide to murder a young friend, Bobby Franks. In the lead up to the murder, Nathan Leopold had written to Richard Loeb that: “A superman … is, on account of certain superior qualities inherent in him, exempted from the ordinary laws which govern men He is not liable for anything he may do.”

The courts felt differently: Leopold and Loeb did kill poor young Franks, but far from committing the perfect crime, they made several clumsy mistakes and were easily caught and convicted. Only the brilliance of their defence lawyer, the famed Clarence Darrow, helped them avoid execution.

Hamilton was almost embarrassed by Rope’s success, perhaps irritated that his fame had come from a popular West End thriller rather than his novels. But, according to Hamilton biographer Nigel Jones, others gave it more credit. An article in the Times Literary Supplement after the war credited Hamilton with picking up on the Zeitgeist of 1920s and 1930s masculinity, specifically the “young men with the highest social pretensions and an almost mystical pursuit of violence” who would fill the ranks of Europe’s fascist movements. The TLS went on to praise the Rope writer, saying “[W]hether the author was conscious of it or not, his social sensitiveness had invested the thriller form with more than its usual significance. And he has shown himself at least concerned for human values and able to feel passionate indignation at their denial.”

Rope roared on to Broadway and round the world, providing Hamilton with a steady income for the rest of his too-short, drink-sodden life.

But, given its prescience, it encountered a particularly ironic moral panic when it was scheduled for broadcast by the BBC in January 1932.

The radio had been commissioned by BBC HEad of Productions Val Gielgud — brother of Sir John and of an equally theatrical leaning. Eagerly hyping his commission, Gielgud put himself forward to issue a statement on air, warning that the play was shocking indeed and that BBC listeners should “send the children to bed and lock granny in her room” before settling down to listen to the thriller.

Gielgud’s music-hall instincts worked a dream, and the newspapers and defenders of the nation flew into a fury. The Morning Post quoted a concerned correspondent who allegedly wrote: “The play had a successful run — there is, of course, a section of the British public which enjoys the degenerate; no one wishes to interfere with their pleasure. It is, however, quite another thing to broadcast this stuff into millions of homes.”

The aggrieved Morning Post reader went on to bemoan the “outrages and murders of little girls” that filled the pages of the newspapers, and suggested that the broadcast of Rope would only encourage “the morbid tendency which leads to these crimes. I submit that the BBC is making a gross misuse of its powers.”

The British Empire Union, a xenophobic, ultra-conservative organisation, picked up on the “morbid tendency” theme, protesting to the BBC that: “While not questioning the ‘cleverness’ of the play, or the undoubted dramatic ability of the author, we consider the broadcasting of a play of this description cannot but encourage in unbalanced and degenerate minds that morbid tendency which leads to the crimes depicted.”

Gielgud, by this point trolling the entire country, told the Evening Standard: “There is nothing disgusting or gruesome about this play, [but] it would have been unfair to broadcast it without letting people know in advance what they were going to hear. For example it might not be the most suitable thing to hear in a hospital.”

The broadcast was, of course, a roaring success, with millions listening in and critics (the Morning Post and the Daily Mail aside) wooed utterly.

The mechanisms of so many public outrages are tied up neatly in Rope: the tease of the promoter; the wilful misunderstanding of a work which explores a controversial issue rather than condoning it; the head in the sand refusal to look at the context of the work; the censorious impulse of those who, while not themselves affected by such things, fear for those lesser beings who may be; the intervention of the Daily Mail; and, ultimately, the fleeting, soon-forgotten nature of the controversy. Over 80 years later, in the age of the iPhone and the Twitter mob, how little we have changed.

This article was published on June 19, 2014 at indexoncensorship.org

The big issues for Indian web users

Some of India’s most prominant internet writers, researchers and policy analysts came together in Bangalore on 9 April to discuss “Strengthening Freedom of Expression on the Internet in India”, organised by the Internet Democracy Project.

The subject has been intermittently making headlines in India, with a number of politically motivated arrests made under the Information Technology Act’s controversial Section 66a. Causing more confusion, in 2011, the Minister for Communications & Information Technology, Kapil Sibal, made headlines by asking social media intermediaries to take down “objectionable” content.

At the time, the content in question seemed to be mainly objectionable to to the government itself. The content in question seemed to be mainly objectionable to the government alone.

This caused a huge public uproar, and since then Sibal has exercised more caution, though still maintaining that “the country must have an enabling framework — rules and regulations must not come in the way of the growth of the net.”

As well as Index on Censorship, the roundtable in Bangalore brought together a number of actors, including analysts from social media giants Facebook and Google, as well as Change.org, Wikimedia India Foundation, Medianama, Digital Empowerment Foundation, Open Governance India, Knowledge Commons, Alternative Law Forum, Center for Internet and Society, Tactical Tech, researchers from IIM Bangalore and Aziz Premji University. Journalists from The Hindu, Hindustan Times, DNA and smaller media organisations like Oorvani Media, Mahiti and The Alternative also took part in the debate.

The overall discussion centered around a few key issues, the first being whether the law “protects” free speech as it stands today. Many of those present felt that while Section 66a of The Information Technology Act 2000, which protects against “annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will…” has been misused in the past, it needs to be examined from different angles, such as protecting women from online abuse.

While some writers have outright rejected this argument, the Internet Democracy Project released a draft paper on the subject. In it, they revealed that women think of the internet — social media — as “the street” where they can be taunted and abused in a similar manner to real life. In fact, drawing on the experiences of writer Meena Kandasamy and singer Chinmayi Sripada, who have faced violent abuse on social networks, the panel discussed ways to fend off misogyny that did not involve the law. These included using humour, blocking people, ignoring the comments, and even asking or waiting for others to come to your defence.

Interestingly, many women who were questioned for the study revealed that they prefer not to go to their families to report the abuse, for fear that they would be told to stop spending so much time online. The women and their families also said they had little confidence in going to the police with the same complaints.

This led the panel to discuss beyond the validity of the law — and question the role and capacity of the police in enforcing controversial measures like Section 66a. Some felt that 95 per cent of police on the front lines were not even aware of free speech issues, or the law in question, while others believed that police reforms are the way forward.

Some were unsure if they wanted the police to be tech savvy in the future, suggesting that it could lead to more arrests than there are today. It was agreed that there needs to be more research on the law as it functions today, to understand the crucial role the police will play in upholding it, particularly regarding the role the judiciary currently plays.

The question of defamation was also raised, with some panelists believing that there needs to be a distinction between those who have a small number of followers versus those who have a large following. Can the punishment be the same, if the effect of their status update or tweet is not?

Other discussions assessed challenges to freedom of speech at state level rather than national level and whether or not the mainstream media is forcefully supportive of free speech on the internet. The panelists debated the issue of anonyminity, and whether it is the cause or the solution to some of the free speech issues we see today.

An issue was raised surrounding how internet users are not a core constituency for the government right now; a fact reflected in the budget of the Ministry of Information and Technology, which chooses to focus areas such as computer hardware.

Another question circulating the room was whether strict laws such as Section 66a were designed with the intention to shape the internet a certain way, so that future users simply fall into line. The government’s perspective on the internet’s purposes was also explored, examining whether the National Broadband Network, currently being laid out to connect rural India, was viewed simply as a delivery service platform or for two-way communication.

Two questions that prompted considerable debate were “what is the role — actual or desired — of non legal actors such as intermediaries, pressure groups; the public at large” and “what non-legal strategies can we develop to protect free speech and who should implement such strategies?”

Some suggestions were to try out a “naming and shaming” site or Tumblr account for hate speech, although there were doubts as to how effective it would be. Other panelists advised that intermediaries could reveal more data that could save the government from taking drastic measures — for example, if a certain video was not being heavily viewed from within India, then the government would not feel the need to censor/block a website as it does now.

It was clear that civil society members and even the intermediaries are grappling with the same questions as the government. While a section of Indian society is firmly opposed to laws like Section 66a, there are discussion platforms to help understand how to operate within the constraints of the law.