Europe’s Freedom of Speech Fail

Over the past decade, there has been a global decline in respect for freedom of expression. And Europe’s democracies — traditionally understood to be places in which these rights are both honored and protected — have not been immune.

According to Reporters Without Borders’s Press Freedom Index, which measures trends in media freedom at both the global and regional levels, all but two European Union-member states (plus Iceland and Norway) have a lower press freedom score in 2016 than they did in 2013. In some cases, there has been marked backsliding: Germany went from a score of 10.24 in 2013 to 14.8 in 2016 (the lower the score, the more respect for press freedom); the United Kingdom has gone from 16.89 to 21.7; and Poland is among the worst cases, jumping from a respectable 13.11 to a deeply worrying 23.89. These scores reflect changes in important indicators such as media independence, self-censorship, and rule of law, among others.

Freedom of expression has always been unevenly protected in Europe. This is because of a philosophical divide that cuts across the continent: Some European countries can be classified as militant democracies. In these countries, the state limits freedom of speech and association when it is deemed to threaten other values outlined in the constitution, such as democracy and the freedom of others. Germany, which regularly bans or has banned various Communist, National Socialist, and Islamist organizations, is a classic example. France, which prohibits Holocaust denial, shuts down mosques it deems too radical and aggressively enforces laws against hate speech and glorification of terrorism, also falls mainly into this camp.

While there are historical justifications for some of these policies, they raise important questions and produce awkward results. Why is it impermissible to deny the Holocaust but permissible to deny the Armenian genocide? Or the evils of the slave trade and colonialism for that matter? What is the metric used for determining whether something is “hate” speech, or just permissible criticism? Increasingly, laws against hatred and offense have come to target controversial but non-violent speech including that of comedians, politicians critical of immigration, as well as Muslims vocally opposed to Western foreign policy. Moreover, there seems to be little evidence suggesting that suppressing speech leads to higher levels of tolerance in liberal democracies. A new report from Germany’s domestic intelligence agency shows not only that there were 500 more extreme-right entities in 2015 than in 2014, but also that there has been a 42 percent increase in violent acts by right-wing extremists over that same period. American NGO Human Rights First also documented a doubling of anti-Semitic hate crimes in France from 2014-2015. A recent report by two Norwegian researchers suggests that an environment where controversial expressions are filtered out may increase the risk of extremist violence.

On the other end of the spectrum are the Scandinavian countries and the United Kingdom – the liberal democracies that have traditionally been more tolerant of intolerance (though no European state offers as robust a protection of free speech as the First Amendment in the U.S. Constitution). Lately, however, it seems that even these states are edging closer toward a militant democracy-style approach.

This past spring, a majority in the Danish Parliament broke with 70 years of tolerating most instances of extreme expressions to enact a law that will criminalize “religious teaching” that “explicitly condones” certain crimes such as murder, violence, and even polygamy. Under the law, an imam or priest who explicitly condones the spanking of children or polygamy as part of his or her religious teaching would face up to three years in prison, whereas a politician or ordinary citizen condoning such practices would be free to do so. The law also bars religious preachers who have expressed “anti-democratic” views from entering the country.

Denmark has been a bastion of free speech protections in Europe, including, at times, from groups that have advocated for totalitarian ideologies, both secular and religious. During the Cold War, the Danish Communist Party held seats in Parliament and freely published pro-Kremlin propaganda. Nazis were also allowed to regroup and advocate their supremacist ideas despite the Nazi occupation of Denmark from 1940-45. Notwithstanding this permissive environment, neither Nazism nor Communism has managed to seriously establish themselves in Denmark. Despite worrying levels of radicalization among some Danish Muslims, Denmark is hardly poised to become a caliphate anytime soon. And yet there are signs that the land that fiercely stood up for the right of its newspapers to publish cartoons of the Prophet Mohammed has begun shifting away from this commitment to free expression. On Constitution Day in early June, Danish Justice Minister Søren Pind – who once called himself the “Freedom Minister” because of his determination to spread liberty to developing countries in the global south — announced his intention to criminalize the “grossly negligent” sharing of extremist material online. If the law is enacted, linking to online magazines such as the Islamic State’s Dabiq would mean jail time.

Denmark’s efforts have been inspired by various counterextremist measures that the historically tolerant U.K. has taken over the past decade. In a speech in May, for example, British Prime Minister David Cameron announced his intentions to pursue a law that will, according to the Guardian, allow the government “the ability to ban non-violent ‘extremist’ organizations, gag individuals and empower local councils to close premises used to ‘promote hatred.’” The government has previously defined extremism as “vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty, and mutual respect and tolerance of different faiths and beliefs.” This definition is vast and sweeping: It would essentially label anyone opposed to liberal democracy as an “extremist.”

The movement toward a more German approach to free speech, one that silences the perceived enemies of an open society, has not only taken root at the national level but is increasingly the guiding philosophy of European institutions. The final limits on free speech in Europe are ultimately determined by the European Court of Human Rights, which is under the auspices of the Council of Europe and the European Convention on Human Rights. The court can pass legally binding judgments against member states. In a number of cases, the court has determined that member states may ban extremist religious and political organizations (such as Hizb-ut-Tahrir, an Islamist movement committed to the nonviolent establishment of a global caliphate) and prohibit mere “glorification” of terrorism. The court views hate speech, including Holocaust denial, as an “abuse” of convention rights and therefore allows it no legal free speech protections. This sets a relatively low bar for the protection of controversial speech across 47 European states and leaves wiggle room for states eager to exploit such openings to further expand the permissible limits on expression.

EU law, which has primacy over national law, is increasingly developing new limitations on speech that apply to all member states. The Framework Decision on Combating Racism and Xenophobia, adopted in 2008, obliges EU states to criminalize hate speech, albeit not in a uniform manner. Lately, the European Commission has signaled that it wants to see the Framework Decision enforced more vigorously. In a speech on Oct. 2, 2015, EU Commissioner for Justice and Consumers Vera Jourova said that “member states must firmly and immediately investigate and prosecute racist hatred.” She added, “I find it disgraceful that Holocaust denial is a criminal offense in only 13 member states.” The commission has even suggested that legal proceedings could be brought against member states that have not fully transposed the Framework Decision — that is, the commission is considering bringing member states before the European Court of Justice for offering freedom of expression protection that is too strong.

But the most serious blow to freedom of expression in Europe may be the recently signed “Code of Conduct” (COC) between the European Commission and Facebook, Microsoft, Twitter, and YouTube. Under the COC, these tech giants have agreed to “review the majority of valid notifications for removal of illegal hate speech in less than 24 hours and remove or disable access to such content, if necessary.” What constitutes “illegal hate speech” is not clear. The COC refers to the Framework Decision and national laws. However, the Framework Decision’s definition of what constitutes “incitement” to “hatred” is far from clear, and national hate speech laws vary widely. While 13 countries ban Holocaust denial, many others do not. In Sweden, an artist was imprisoned for six months for “racist and offensive” posters exhibited in an art museum; the same posters were freely exhibited in Denmark. Should Facebook remove all content that may constitute Holocaust denial, or only when uploaded in, say, Germany or France? Should an internet meme based on the “offensive” Swedish posters be guided by Danish or Swedish standards? This uncertainty may force companies to err on the side of caution and adopt a bias toward preventive censorship.

The COC essentially privatizes internet censorship with none of the accountability, publicity, and legal safeguards that follow from proper legal procedures. Since social media has become essential for traditional media to reach a wide audience, the COC could cause a ripple effect of self-censorship on the part of outlets that fear their content could be removed from social media platforms for being “hate speech.” The COC will not only affect freedom of expression in the EU, but also the EU’s ability to campaign credibly for freedom of expression and internet freedom in countries where censorship is the norm. After all, why should the Putins and Xi Jipings of the world take lessons on internet freedom from an organization that imposes nebulous limits on the internet?

Democratic Europe still remains a bastion of free speech compared with most other places in the world. But the “closing of the European mind,” by prohibiting expressions that agitate against Europe’s fundamental values, moves these democracies uncomfortably close to practices that the EU is supposed to guard against. This trend bears an uncanny (albeit imperfect) resemblance to the infamous Section 106 of the East German penal code, which criminalized “anti-state propaganda,” including “agitation against the constitutional basis of the socialist state and social order of the GDR” (German Democratic Republic) and “glorification of fascism and militarism.” Europe should make sure that such rot does not take hold in its democratic foundation, which cannot hold firm without a robust protection of free speech.

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