By Natalie Alkiviadou
Introduction
Article 17 of the European Convention on Human Rights (ECHR), commonly referred to as the ‘abuse clause,’ provides that:
“Nothing in [the] Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.”
This provision emerged in response to the historical context marked by the atrocities of World War II, with its fundamental purpose being to furnish democratic systems with the necessary legal mechanisms to prevent the recurrence of egregious acts perpetrated by past totalitarian regimes. This foundational rationale was reflected in the landmark 1957 case of KPD v Germany, in which the now-defunct European Commission on Human Rights sanctioned the prohibition of the German Communist Party. Over time, the Strasbourg organs extended the use of Article 17 to speech, which may not be associated with totalitarian groups but which, more broadly, ‘destroys’ Convention rights and freedoms. It is within this framework and given last year’s judgement in Lenis v Greece, which involved homophobic speech by a church official, that a re-consideration of this provision and its use is warranted.
Development and Enforcement of Article 17
In relation to ‘hate speech’ cases, the ECtHR either excludes them from protection without the legal analysis conducted under Article 10 or considers the case within the framework of Article 10 and its limitation grounds. Article 10 grants the right to freedom of opinion and expression but subjects it to limitations on the grounds of, amongst others, protecting the rights and reputations of others. When a case is considered in the framework of Article 10, the Court conducts a multi-fold test through which it determines whether there is a pressing social need for the interference, whether it is necessary and proportionate and whether it is prescribed by law. Applying Article 17 to cases involving speech can have a chilling effect to one of the fundamental freedoms of a democratic society, that of freedom of expression. When Article 17 is relied on, issues such as legitimacy, necessity and proportionality are not considered by the Court. As early as De Becker v Belgium (1962), the Court acknowledged that Article 17 applies exclusively to individuals posing a threat to the democratic system of contracting parties. The case of Kuhnen v Germany (1988) further broadened the scope of Article 17 by extending its applicability to activities deemed contrary to the text and spirit of the Convention. The application of Article 17 has extended beyond threats to democracy, encompassing instances where individuals or groups exploit Convention rights in a manner which jeopardizes the ECHR’s “spirit” and also fundamental rights rather than endangering democratic governance.
There is also a certain hierarchy attached to the use of Article 17 when employing content-based ousting from Article 10 protection. Cases involving Holocaust denial and anti-Semitism have frequently (but not always) been handled through the utilization of Article 17. The divergence in the Court's treatment of the Holocaust in comparison to other genocides, specifically the Armenian genocide adds another layer of complexity to the analysis.Perinçek v Switzerland (2015) involved expression which denied the occurrence of the Armenian genocide. Here, the Court did not follow the Article 17 route as it usually does in equivalent cases of Holocaust denial.
Furthermore, over time, the provision’s application has extended, albeit sporadically, to cases involving other types of speech, namely Islamophobia in 2003 and homophobia in 2023.
Homophobic Speech
In Vejdeland and Others v Sweden (2012), the ECtHR was confronted with homophobic rhetoric disseminated by a youth group through leaflets. The applicants had faced conviction by national courts for inciting hatred against a national or ethnic group due to the leaflets' content. The leaflets contained derogatory statements about homosexuality, including assertions linking homosexuality to HIV/AIDS and paedophilia. The Court found no violation of Article 10, following an analysis under the relevant legal test.
Lilliendahl v Iceland (2020) involved online comments made by a citizen regarding a proposal to enhance education and counselling on LGBT issues in schools. The individual expressed disdain for the proposal, using derogatory language to describe homosexuality and those identifying as LGBT. While the Court found that the severity of the speech in question did not meet the threshold of Article 17, it found no violation of Article 10.
Lenis v Greece (2023) involved the speech of Amvrosios, a high-ranking church official and is the first case in which Article 17 has been employed in relation to homophobic speech. During the material time, the Hellenic Parliament was close to debating proposed legislation to introduce civil unions for same sex couples. The applicant published an article on his blog with the title “The scum of society have reared their heads! Let’s be honest spit on them”. The article was reproduced by several outlets, mostly with derogatory titles in relation to the applicant such as “the raving of Amvrosios” and the “unbelievable raving of Amvrosios against homosexuals…”. As a response to the upheaval the applicant published a second article entitled “Let’s get things clear – love the sinner but deal with the sin.”
Amvrosios was convicted of inciting violence against a group based on sexual orientation. The applicant argued that his article and statements referred to politicians and not homosexual persons. The ECtHR agreed with the conviction and relied on Article 17 to do so, finding that the speech constituted hate speech and incited violence against the LGBT community. The Court found that it was “immediately clear that the statements sought to deflect Article 10 from its real purpose…for ends clearly contrary to the values of the Convention” (para 53). It noted that criticism of certain lifestyles on moral or religious grounds does not fall outside the Article 10 framework, but that this case involved ‘denying LGBTI people their human nature’ (para 54) in addition to inciting violence.
Considering the nature of the statements and the wide dissemination online, the Court found that in light of Article 17, the complaint could not benefit from the protection afforded by Article 10. The Court noted that this finding was further reinforced by the fact that the applicant was a senior official of the church and had the power to influence his congregation but also many others who adhered to the Greek Orthodox religion, namely the majority of the population. However, in reaching this conclusion – on Lenis’ public statement and the broad dissemination of the article – the ECtHR did not refer to the fact that the headlines it had mentioned in other outlets were actually a form of counter speech to the applicant’s statement (so much so that he felt a need to respond in a second article). It neither considered the fact that although the majority of the population belongs to the Greek Orthodox religion, this does not positively correlate with the endorsement of the applicant’s position (see for example titles of the other articles and the fact that there was, at the material time, a discussion on civil unions amongst homosexuals which was about to commence). Moreover, the Court’s reference to violence is not entirely or immediately clear (a necessary element for the use of Article 17). This is particularly so when considering that the term “spit on them” was interpreted by the Court in its literal sense (in agreement with the national courts) without any linguistic or other analysis of the possible metaphor in this phrase. In terms of the statement ‘blacken them,’ which was included in the text of the applicant’s first article, this was deemed by the domestic courts and agreed upon by the ECtHR to refer to politicians.
Concluding Comments
While the ECtHR's aim to protect marginalised groups is commendable, the use of Article 17 to restrict speech poses challenges. Such utilization of Article 17 warrants careful scrutiny, as it significantly impacts the exercise of freedom of expression by circumventing the requisite balancing of competing interests inherent in an Article 10 assessment. The broad interpretation of Article 17 raises concerns regarding the potential erosion of democratic principles, as it risks inadvertently fostering intolerance and self-destructive tendencies within democratic societies. As argued, the use of Article 17 in hate speech cases is “not a desirable project for the future development of democracy in Europe” (p. 82). In fact, one of the inherent problems with the use of Article 17 in speech cases is the “frightening possibility of a democracy becoming too intolerant and, therefore, self-destructive” (p. 85). In sum, the ECtHR must exercise greater caution when resorting to Article 17 and should refrain from its use in hate speech cases, as freedom of expression constitutes a fundamental right essential for the proper functioning of a democratic society. Silencing this right without due regard for legality, necessity, and proportionality is, at best, paradoxical. The jurisprudential evolution in Article 17’s application illustrates the precarious and chilling trajectory the Court is navigating, with Lenis serving as the most recent example. Moreover, the Court's intentions behind extending Article 17 to cases beyond its original scope, aimed at preventing totalitarian groups, remain unclear. Will minority groups truly benefit from this approach? Doubtful. Will it provide haters with further justification to portray themselves as martyrs? Highly likely.
Bio:
Natalie Alkiviadou is a Senior Research Fellow at The Future of Free Speech. Her research interests lie in the freedom of expression, the far-right, hate speech, hate crime and non-discrimination. She holds a PhD (Law) from the Vrije Universiteit Amsterdam. She has published three monographs, namely 'The Far-Right in International and European Law' (Routledge 2019), 'Legal Challenges to the Far-right: Lessons from England and Wales' (Routledge 2019) and 'The Far-Right in Greece and the Law' (Routledge 2022). She has published on hate speech, free speech and the far-right in a wide range of peer reviewed journals, has been reviewer for journals such as the International Journal of Human Rights, The Netherlands Quarterly of Human Rights and guest editor for the International Journal of Semiotics and the Law. Natalie has over ten years experience in working with civil society, educators and public servants on human rights education and has participated in European actions such as the High-Level Group on Combating Racism, Xenophobia and Other Forms of Intolerance. Natalie has been the country researcher for the 2019 European Network against Racism report on Hate Crime and the 2022 report on structural racism. She has drafted handbooks, strategy papers and shadow reports for projects funded by the Anna Lindh Foundation, the European Commission and the European Youth Foundation, on themes such as hate speech. Natalie is an international Fellow (2022/23) of the ISLC – Information Society Law Centre of the Università degli Studi di Milano.