It is 2008. A far-right party in Austria hosts seminars that are free to attend and advertised to the public. The subject of one such seminar series is “Basic Information on Islam.” An undercover journalist attends two of these seminars, during which the speaker makes claims to the effect that the Prophet Muhammed displayed pedophilic tendencies. Those claims are reported and formally investigated, leading to the speaker’s conviction for “disparagement of religious doctrines” under Article 188 of the Austrian Criminal Code, with a fine of EUR 480 (or 60 days’ imprisonment in the event of default). That conviction is upheld on appeal, including by the Supreme Court of Austria.

Fast forward to 2018. The European Court of Human Rights (ECtHR) is asked to consider the argument that the speaker’s conviction under Article 188 amounts to a violation of her right to freedom of expression, as enshrined under Article 10 of the European Convention on Human Rights. In an Oct. 25, 2018, judgment, the ECtHR finds no violation of the speaker’s right to freedom of expression; where religious feelings and free speech clash, religious feelings appear to prevail, while speech is seemingly criminalized.

The judgment in E.S. v. Austria has been widely criticized on both sides of the Atlantic, with one commentator characterizing it as an attempt to legitimize blasphemy laws through the backdoor.

As the judgment was being handed down by the ECtHR, Asia Bibi was under sentence of death for blasphemy and awaiting the outcome of her appeal to the Supreme Court of Pakistan. Two days later, in a referendum in Ireland, just under 65 percent of those casting a ballot voted to remove the offense of blasphemy from their national law. Against this backdrop and at a time when people around the world continue to face criminal conviction and even capital punishment under blasphemy laws, it is not surprising that the ECtHR’s decision in E.S. has been seen by many as a retrograde step.

It is fair to say that the decision of the ECtHR is beset with difficulties; positive obligations to ensure peaceful religious co-existence and mutual tolerance look, in their practical application, awfully like old-fashioned blasphemy legislation operating with full force. It is not right, however, to suggest that the ECtHR has gifted a blanket justification for such laws or imposed a Europe-wide law prohibiting blasphemy.

Article 188 & Justified Indignation in Austria

E.S. is not the first time that the ECtHR has had to consider Article 188 of Austria’s Criminal Code in the context of religious rights and free speech. The same statutory provision was the subject of the infamous Otto-Preminger-Institut v. Austria, a case decided in 1994 that remains one of the ECtHR’s most controversial attempts to set the parameters of free speech under the Convention.

That case had involved the seizure of a film that it was said insulted the Roman Catholic faith; a complaint had been brought by the Roman Catholic Church under Article 188, resulting in a successful prosecution. The ECtHR considered the compatibility of the prosecution with the Convention and found no violation of the right of freedom of expression under Article 10. The Court took into account the absence of a uniform position in Europe on the significance of religion in society and held that the Austrian authorities were entitled to a certain “margin of appreciation” in assessing the necessity of imposing restrictions to avoid offending religious beliefs. (The margin of appreciation is the judicial doctrine that allows the ECtHR to reconcile practical differences in implementing Convention rights domestically.)

Twenty-four years later, Article 188 took center stage again, this time in the E.S. case. At first instance and on appeal, the Vienna Regional Criminal Court, the Vienna Court of Appeal, and the Austrian Supreme Court all found that the speaker had violated Article 188, which prohibits the public disparagement of religious objects, persons, customs and institutions, with behavior “likely to arouse justified indignation.”

In dismissing E.S.’s final appeal, the Austrian Supreme Court sought to distinguish serious contributions to debates about Islam or child marriage from the speaker’s comments, which it determined were made “primarily in order to defame Muhammed.” While harsh criticism of religious traditions and practices was lawful, mere insult and mockery were not. As a result, the speaker’s comments fell outside the scope of protection for freedom of expression in Article 10. The comments also clashed with the protections accorded by Article 9 of the Convention for religious beliefs and religious practice; in that light, the conviction and fine were seen as a proportionate way to achieve the legitimate aims of protecting religious peace and the religious feelings of others.

The ECtHR found that this was a case that engaged the right to freedom of expression: the speaker had been prosecuted and convicted for things she had said. However, the Court held that the interference with the speaker’s qualified right to freedom of expression: (i) had a sufficient basis in law (Article 188); (ii) pursued the legitimate aim of protecting the rights of others (under Article 10(2)); and (iii) was “necessary in a democratic society” as a means of fulfilling that legitimate aim. In other words, while there was an interference with the speaker’s individual right to freedom of expression, it was justified, and therefore lawful.

The ECtHR noted that questions concerning the impact on religious peace of the speaker’s statements, and judgments about the factual justification and the interpretation of those statements, fell within Austria’s wide margin of appreciation as a state. Reviewing the approach taken by the Austrian courts, the ECtHR found that it was open to those courts to conclude that the impugned comments went, on balance, beyond the scope of permissible debate — that they amounted to unprotected expressions of value that were insufficiently supported by fact, and that they put religious peace at risk.

Arguing context

The parties’ submissions in the case were directed to three distinct layers of contextual analysis:

The first, of particular importance to the speaker, was the content of the remarks and the physical environment in which the statements were made. Her primary case was that her claims were grounded in historical fact and could not be construed merely as offensive value judgments. Notwithstanding this, however, the speaker also argued that the impugned words formed only a small part of what was a lengthy and otherwise objective public debate, helping to promote a “lively discussion,” such that her criminal conviction constituted a disproportionate (and therefore unlawful) interference with her right to freedom of expression under Article 10.

The second type of contextual argument appealed to the broader national setting, within which the speaker’s comments were made. Here it was Austria submitting that the speaker’s remarks threatened religious peace by arousing justified indignation and arguing that the Austrian courts had properly weighed this concern against the rights of the speaker.

Finally, the ECtHR was invited (by the parties and a third-party intervener) to consider the international context, prevailing international standards and, in particular, the question of whether a criminal sanction for blasphemy was consistent with such standards.

The outcome of the E.S. case is really a function of the ECtHR’s consideration of these three layers of contextual argument. Noting the absence, in its view, of a “uniform European conception” of how best to protect religious rights and feeling, the ECtHR granted a wide margin of appreciation to Austria, in the domestic courts’ balancing of religious rights on the one hand and freedom of expression on the other.

Where such margins (given to states) are widened, the standard of review (of the international court) finds itself correspondingly diminished. In such circumstances, the respondent state is best-placed to assess the proper parameters of free-speech rights in the face of moral or religious considerations, given the national authorities’ “continuous contact with the vital forces of their countries.” Here, the Austrian courts had closely considered the basis for the prosecution and conviction and had “carefully balanced” the competing rights at stake, the ECtHR found.

Misunderstandings and Legitimate Concerns

Almost a quarter of a century separates the ECtHR’s judgments in Otto-Preminger-Institut and E.S. In some ways, both cases are a product of their times. Otto-Preminger-Institut saw a clash between a homogeneous Catholic society and an irreverent media company pushing the boundaries of free speech. In E.S., it was the rights of a minority religious group on the one hand and the Article 10 rights of a far-right-leaning speaker on the other, against the backdrop of an increasingly pluralistic Austria.

What is striking is the near-identical approach taken by the ECtHR in both cases. Arguably, the E.S. case involved a more nuanced “contextual” analysis. But, ultimately, the Court reached more or less the same conclusion as it had in Otto-Preminger-Institut, while using similar reasoning to get there. Therefore, some of the criticisms made of Otto must inevitably apply to E.S. Others, however, are widely off the mark. Three errors stand out:

First, the speaker in S. did not “appeal” to the ECtHR. The ECtHR is not a court of appeal; it is an international human rights court that exercises a supervisory function, setting and policing an international minimum standard of treaty-based human rights, while granting a margin of appreciation to Convention states in the implementation of those rights.

Secondly, the ECtHR did not approve the substantive reasoning of the Austrian courts, nor did it uphold Austrian anti-blasphemy laws. Rather, the Court found that Austria had not exceeded its wide margin of appreciation in applying its domestic law in this area.

Thirdly, what the ECtHR certainly did not do (as has been suggested by one British commentator) is find that defaming the Prophet Mohammad “should be punishable by law.” Nor did it put at risk the free speech rights of all Europeans in this area. Blasphemy laws remain a matter for nation states and their courts in the first instance.

Nevertheless, the decision does raise legitimate questions about the approach the ECtHR takes to free-speech concerns when religious feelings and rights are engaged. For example, how meaningful is an international human rights court’s supervision, when it is prepared to grant such wide margins of appreciation to states? And do justifications such as “religious peace” provide a principled basis for lawful interferences with individual rights?

There is also, on the facts of E.S., the further question of whether it was appropriate, and consistent with the ECtHR’s own case law, to apply a wide margin of appreciation at all in the case. The principal justification for doing so was the purported lack of a uniform European consensus on the criminalization of blasphemy.

But that finding ignores, or is simply blind to, a significant movement away from such laws in recent years. Several influential international bodies, including the Council of Europe’s own Venice Commission, have expressed support for decriminalization in this area. That call has, in turn, been taken up by legislatures in several European states: within the last decade, Denmark, Iceland, Malta, the Netherlands, England, Wales, and Ireland, have abolished or repealed laws criminalizing blasphemy or religious insult. If “general trends” in the practice of Council of Europe states form a relevant consideration for the ECtHR, the Court’s reluctance to acknowledge shifting attitudes to anti-blasphemy legislation seems all the more puzzling.

So, the margin of appreciation problem in this case is really two-fold. First, was it appropriate for the ECtHR to grant such a wide margin of appreciation to Austria in the light of recent developments? Secondly, once granted, was the margin not so generous as to preclude any meaningful review by the international court?

These issues go hand in hand with another -– the justifications advanced by states for interfering with individual rights. In E.S., “religious peace” was said to be threatened. Those words are to be found nowhere in the text of the Convention itself. At best, it is a justification that engages the “rights of others” (a formulation found in Article 10(2)) but by reference to a concept that is difficult to define, test, and verify. Taken together with wide margins of appreciation, the picture that emerges is not of a Court that is taking an oppressive approach to free speech, but rather one that is, if anything, abrogating its responsibility to consider the question at all.

IMAGE: A poster being unveiled in the courtyard of the Bordeaux City Hall in southwestern France in March 2015 in honor of Asia Bibi, a Christian Pakistani woman who was on death row in Pakistan for the blasphemy of Prophet Mohammed. (Photo by NICOLAS TUCAT/AFP/Getty Images)