The Importance of State Practice in the Shaping of International Standards Pertaining to the Clash between Free Speech and the Banning of Negationism: The Contribution of the Greek Legal Order
in P. Grzebyk (ed.), Responsibility for the Denial of International Crimes, Instytut Wymiaru Sprawiedliwośki, Justice Institute, 2020
22 Pages Posted: 27 Oct 2020
Date Written: September 7, 2020
Considering the tension between freedom of expression and the banning/punishing of historical negationism as a means to fight hate speech, the paper makes three interconnected points. First, it identifies a number of international legal authorities calling on states to enact legislation at the domestic level to prohibit and, in particular, to prosecute denialism. This movement is thinner at the global level, but more tangible within Europe. The authorities at issue acknowledge the importance of FoE, but they offer no clear guidance as to the balance that should be maintained between it and the prohibition/punishment of denialism, or as to the limits of FoE more generally. Moreover, these authorities contain no fully shaped and clear criteria as to how to draw a satisfying distinction between legitimate debate and disagreement, on the one hand, and negationism amounting to hate speech that shall constitute a criminal offence, on the other. Second, the paper argues that establishing such limits and balances involves a value judgment. It is not an objective, “dry” technical legal exercise. In this respect, analysis in the study highlights certain criteria established by the European Court of Human Rights in historical negationism cases arguing that, even though they may be useful, they are not adequate, in the sense that these criteria do not suffice to avoid shifting to a subjective appraisal (by means of stricto sensu proportionality or by declaring certain speech as abusive) based upon the personal values, ideals, preferences and the ideological predispositions of judges. Third, the key argument advanced in this note is that the combination of the previous two points invites us to recognise the weight of state practice in the shaping of international standards in an area (namely the balance between FoE and the prohibition/criminalisation of denialism, particularly as a form of hate speech) that is far less settled than one may think or than what the exigencies of legal certainty, particularly in areas like human rights and especially in criminal law, require. In this respect, the paper outlines the importance of state practice and how, from a technical point of view, such practice may help to shape standards, to give the example of the Greek legal order, briefly discussing relatively recent relevant legislative and judicial practice that allows learning certain lessons regarding, inter alia, the dangers of abusive prosecution of free speech on the basis of defective legislation criminalising denialism.
Keywords: freedom of expression; free speech; historical negationism; hate speech; ECHR; proportionality; abuse of rights; Richter case
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