In a unanimous judgment, the European Court of Human Rights has confirmed that hate-speech is not protected by the right to freedom of expression under Article 10 ECHR.

In Belkacem v Belgium [2017] ECHR No 34367/14 [in French], the applicant had been convicted of various infractions of Article 22 of the Law of 10 May 2007 on combating certain forms of discrimination: in particular, that he had posted videos on YouTube in which he was seen making grossly inflammatory statements about the then Minister of Defence of Belgium [4] and that he had harassed the husband of a Belgian politician after her death by posting a video saying that she would spend eternity in Hell [5].

He argued before the Second Section that he had never intended to “incite” hatred, violence or discrimination but merely to disseminate his ideas and opinions. The intentional element of the offence for which he was convicted could therefore not be established. According to him, his shocking and offensive remarks about non-Muslims were only a manifestation of his freedom of expression and religion and were not such as to constitute a threat to public order [27]. Therefore, his conviction was a breach of Article 10.

The Court did not buy his argument. It was not the Court’s task to rule on the constituent elements of the offence of incitement to hatred, violence and discrimination: it was primarily for the national courts to interpret and apply domestic law. The Strasbourg Court had to be satisfied that, in so doing, the national authorities had relied on an acceptable assessment of the relevant facts [29.] Further, though the case-law of the ECtHR had established the eminent and essential character of freedom of expression in a democratic society, it had also defined its limits by excluding certain statements from the protection of Article 10. It had held, inter alia, that certain speeches were exempted from the protection of Article 10 by virtue of Article 17, according to which:

“Nothing in the Convention may be interpreted as implying for any State, group or individual any right to engage in any activity or to perform any act aimed at the destruction of the rights or freedoms recognised in the Convention or to more extensive limitations of those rights and freedoms than those provided for in the Convention” [30].

Article 17 applied only exceptionally and in extreme cases; and in those relating to Article 10, it was to be used only when it was quite clear that the words complained of were intended to divert the provision from its real purpose by the misuse of the right to freedom of speech. The decisive issue under Article 17 was whether the applicant’s statements were intended to stir up hatred or violence and whether he had sought to invoke the Convention in such a way as to engage in or to commit acts aimed at the destruction of the rights and freedoms that the Article was intended to protect [31]. The Court had therefore applied Article 17 of the Convention by excluding certain comments from the protection afforded by Article 10 in cases relating to statements that had denied the Holocaust and its organisation by Hitler, to a poster that associated all Muslims with a serious act of terrorism and to cases relating to publications and performances deemed antisemitic [32].

In the present case, the Court had no doubt as to the hateful nature of the applicant’s views and endorsed the conclusion of the domestic courts that he had sought to incite hatred, discrimination and violence against non-Muslims. Such a general and vehement attack was at odds with the values of tolerance, social peace and non-discrimination underlying the Convention [33].

The application was therefore inadmissible because it was incompatible ratione materiae with the provisions of the Convention (Article 35 §§3(a) and 4).