If an alien landed in modern Europe, it might be forgiven for thinking the EU was founded to restrict speech. It has a Code of Conduct demanding social media companies take down objectionable content and then report publicly on just how quickly they did so. It has funded the European Digital Media Observatory, which seeks to “coordinate actions in the fight against disinformation.” And, most recently, under France’s presidency, it has pushed to amend the list of “EU crimes—defined as “particularly serious crime with a cross-border dimension.” The current list includes murder, terrorism, international drug trafficking. To that list, the European Commission now proposes to add “hate speech.”
Of course, there is objectionable content online and offline. We can probably all agree on that. But what no-one can agree on is what exactly constitutes “hate speech.” It seems to be concerned with offense. Yet that is a painfully subjective thing, as anyone who has ever been misinterpreted knows.
In an EU seemingly determined to close the Overton window, a case against France pending at the European Court of Human Rights could be a harbinger of things to come.
Paris-based Fondation Jérôme Lejeune has, for years, set the standard in research and care for people with Down syndrome. A few years ago, they helped create an incredible, joy-filled infomercial featuring 18 people with Down Syndrome. The video opens by quoting an email that had arrived from a pregnant woman who had found out her unborn child had Down Syndrome. “I’m scared: what kind of life will my child have?” she asks.
Over the following two and a half minutes, individuals with Down Syndrome share the joys and struggles of life with the condition. It was a masterpiece, produced by leading advertising agency Saatchi and Saatchi. It was seen by millions across multiple platforms. And, given its positive message and contribution to destigmatizing disability, it was agreed that it should be broadcast by French TV as a message of general interest.
At least, that was the plan, until the French government agency responsible for audio-visual communication issued a negative opinion. It considered that showing the video might disturb the consciences of women who had chosen to abort a child with a disability. And that settled it. The TV channels backpedaled and the courageous individuals in the video were silenced. Never mind the video never mentions abortion. Never mind no-one had actually complained. Never mind the positive potential impact of the video for those affected by Down Syndrome and society more broadly.
It was blocked because someone might be offended. It’s still online—you can take a look and judge for yourself. And in many ways, that is the point. You can decide. For the state to begin deciding what, in its sole judgment, might offend some people, sets a troubling precedent.
Thankfully, some measure of justice may now be in sight. France finds itself in the ‘dock’ of Europe’s top human rights court over its censorial approach. It has taken a number of years for the case to reach Strasbourg. To be admissible, those bringing a case have first to seek redress at a national level. This rule requiring the so-called ‘exhaustion of domestic remedies’ is designed to give national governments a chance to address whatever issue is in question.
In this case, rather than apologizing, or changing its view, the French government position became entrenched through domestic proceedings. The government maintained that the infomercial could have disturbed the consciences of women who had chosen to abort a child with disabilities. It maintained that this hypothetical concern was enough to outweigh the fundamental right to freedom of expression.
That right is protected by every major human rights treaty and France has agreed to be bound by it. Any possible restrictions on it must be truly necessary and robustly scrutinized by the courts. There is no right ‘not to be offended’ under the European Convention. On the contrary, the court has rightly ruled that even speech that might “shock, offend, or disturb” is protected by the Convention. Such is the price of freedom—hearing things with which we might disagree.
France claims to be acting in defense of those who might be offended or disturbed. But that is not only a thankless, but an impossible task. It inevitably leads to selective and ideological enforcement based on subjective determinations. Even more fundamentally, it is not the role of the state, nor the EU, to be the arbiter of acceptable opinions.
So, on this World Down Syndrome Day, we proudly stand with those who spoke out to challenge misconceptions and stigmatization and, in the process, found themselves being subject to misconceptions and stigmatization.
You can find out more about the case here.
Robert Clarke is the Deputy Director of ADF International. @Rob_ADFIntl