People commemorate the victims of the Copenhagen shootings at a gathering in Århus. Demotix/Gonzales Photo. All rights reserved.

The global spate of terrorist attacks has brought the phenomenon of online radicalisation to the forefront. Governments and intelligence services warn that extremist groups use social media to recruit new adherents and potential terrorists. From the perspective of human rights, this raises a question – where should the line be drawn between protecting free speech and criminalising “extremist speech” related to terrorism?

Last week that question was answered very differently in two similar cases by Norwegian and Danish appeal courts. Both cases dealt with radical Islamists who had uploaded comments, photos and videos with vocal support of terrorism and violent jihad on their respective Facebook accounts. In the Danish case the defendant had also sent a number of e-mails to a list-serve, and had edited and distributed a number of books on jihad.

In the Norwegian case the defendant was charged for public incitement to murder with terrorist intent, whereas the Danish case included charges for both “otherwise advanc[ing] the activities of another person, group or association, committing or intending to commit” terrorism, “incitement” to terrorism and “publicly condoning” terrorism. While there are important differences between the relevant provisions in the Danish and Norwegian criminal codes, both have been amended to take into account the Council of Europe’s Convention on Prevention of Terrorism (CPT), which includes an obligation to criminalise the “public provocation to commit a terrorist offence", which means “the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of a terrorist offence, where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed”.

However, the convention also states that such prohibitions must be implemented “while respecting human rights obligations, in particular the right to freedom of expression, freedom of association and freedom of religion” as guaranteed by the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR).

The statements in the Norwegian case included the following comments on a news story about hostages killed by Islamists in Algeria: “May Allah swt reward our brothers with the biggest and best [of] paradise and expel the enemies of Islam from our country and destroy them”.

After the Boston bombing in 2013 the defendant wrote “To hell with Boston and may Allah destroy America!! Our prayers and tears go to our loved ones in Afghanistan, Mali, Syria, Iraq, Myanmar, Yemen, Pakistan, Chechnya, Somalia, Bosnia and to all the Muslim Ummah” as well as “REAL LIONS!!! May Allah reward them!!! Amiiin!” accompanied by two pictures of the Boston bombers. He wrote similar updates praising the killers of a British solder beheaded by Islamists in London and the perpetrators of a terrorist attack against the Westgate mall in Nairobi.

The Danish case involved more than 40 comments on Facebook, e-mails sent to a list serve and a number of books. While some of the comments explicitly called for violent jihad other statements were more ambiguous. For instance a photo of the World Trade Center in flames and a manipulated 7-11 logo, reading “9-11 made by Qaeda”, a picture of horsemen with raised swords and black flags with the following Quranic verse: “Fight in the way of Allah those who fight you”, a picture of water and rock formations with the following quotation from a Danish Islamist killed in Syria: “Paradise has one hundred degrees and between each two degrees is a distance like that between the heaven and the earth, and Allah has reserved these degrees for the Mujahedeen who fight for his cause”, and these quotes also from a known Al-Qaeda member: “any person, who calls for Islam and fights for it, will be persecuted as were the prophets. Every prophet was persecuted due to his calling, so it doesn’t surprise me, but rather it pleases us, since we follow in the footsteps of the prophets”.

While The Danish appeal court did distinguish between the above statements and simple quotations from the Quran, the judges had no reservations about treating explicit calls for jihad and the more ambiguous and abstract statements identically and found that all of these comments “advanced” and “publicly condoned” terrorism. The court summarily and with no balancing of competing interests, dismissed the argument that article 10 of the ECHR, protecting freedom of expression, could lead to another result. Perhaps even more controversially, the appeal court also found that by editing and distributing three books that included theoretic, mystical and theological discussions and justifications for jihad, the defendant had “advanced” and “condoned” terrorism.

In stark contrast with the Danish case, the Norwegian courts handed down a detailed and meticulous judgment that did not merely pay lip service to the ideals of the rule of law and freedom of expression. At the first instance, charges of “glorification of terrorism” were dismissed as inapplicable since “glorification of already committed acts are not punishable”. Accordingly, in the context of the statements cited above, the appeal court only had to decide whether the defendant was guilty of incitement to murder with a terrorist intent.

The appeals court took great care in emphasising that freedom of expression is a fundamental right of great importance. The court scolded Parliament for not having drafted the provision with sufficient clarity and found that the legal uncertainty created by such vague criminal provisions had to benefit the defendant and thus interpreted “incitement” as requiring a “degree of concretisation” and “strength” to be met. The court also confirmed previous Supreme Court case law determining that no one should risk criminal liability for expressions based on inferred interpretation rather than explicit statements. Accordingly, the court found that the statements in question constituted “mere” glorification of already committed terrorist acts, rather than “incitement” to commit new ones and thus acquitted the defendant (who was also acquitted for racist hate speech but convicted for threats in relation to a number of other statements).

It is arguable that both the Danish and the Norwegian decision are in line with the CPT as well as the ECHR, since the CPT provides very little guidance on how to reconcile the requirement of criminalising terrorist speech while respecting freedom of expression. Moreover, the most authoritative guide to reconciling these competing interests, the European Court of Human Rights, has delivered a number of judgements that set a low threshold for cases where terrorist speech, including glorification, may be restricted. In the Leroy case, a French cartoonist was convicted for “glorification of terrorism” for having made a cartoon of a plane crashing in to two towers with the caption “We all dreamt about it – Hamas did it” days after the attacks on 9/11, which the court found in accordance with article 10. On the other hand the Norwegian approach seems more in line with Security Council Resolution 1624, which calls upon member states to “Prohibit by law incitement to commit a terrorist act or acts”. The threshold may also well be higher under Article 19 of the ICCPR, than under the ECHR, though there seems to be little case law from the Human Rights Committee.

Regardless of whether the restrictive Danish approach is consistent with CPT and the ECHR, from the point of view of the rule of law and human rights, the decision of the Norwegian appeals court offers a much more convincing and robust framework for determining where to draw the line between permissible free speech and unlawful statements in support of terrorism. Mere glorification of terrorist attacks that have already occurred (however morally reprehensible) should not be criminalised, and convictions of incitement to terrorism should be based on clear and unambiguous calls for terrorism, rather than inferred interpretations that attribute meaning to words that may or may not be an accurate reflection of what the author intended. While it may be tempting for governments to crack down on extremist speech in order to send a clear signal, the consequences of such a draconian response should not only be measured in the erosion of basic freedoms but also includes social costs.

With more than 100 prosecutions for glorification of terrorism after the Charlie Hebdo attack, including for comments that constituted nothing more than poor taste and lack of moral character, it is inevitable that the idea of freedom of expression as a truly fundamental value, is rejected as hypocrisy among communities affected by such spikes in prosecutions.

Moreover, the focus on terrorist speech also creates an unacceptable level of arbitrariness and selectiveness. For instance under Danish law it would be legal to glorify and praise Assad’s gassing of children and slaughter of civilians, the Holocaust and Stalin’s mass murder of millions, whereas people have been convicted for praising the perpetrator of the terrorist attack in Copenhagen on 14 February 2015.

At any rate it is surely naïve to think that overcoming the very real and increasing threat from terrorism can be achieved through cracking down on speech (especially on social media, where identities can be hidden and new accounts can be created at the click of a button). Apart from traditional approaches, including intelligence operations and policing, open societies must be engaging in a battle of ideas with the people who create, share and become attracted to the extremist narrative. That can only be achieved in a setting where the right to freedom of expression is robustly protected.