Oliver Wendell Holmes famously wrote ‘The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic’. The day before Ireland’s population voting to repeal the blasphemy law, the European Court of Human Rights released a decision which dealt with freedom of speech and its typically hazy boundaries. The applicant, referred to as ES to protect her anonymity, held seminars titled ‘Basic Information on Islam’ as part of the Freedom Party Education Institute. One of these seminars contained statements which began by saying that Muslims typically worship Muhammad as the ideal man, the perfect Muslim. However, ES contrasted this with Muhammad’s marriage to a six year-old, Aisha, when he was 56 years of age, and later said ‘A 56-year-old and a six-year-old? What do you call that if it is not paedophilia? We have heard that so many times. ‘Those were different times’ – it wasn’t okay back then, and it’s not okay today. Full stop. And it is still happening today. One can never approve something like that,’.

The Vienna Regional Criminal Court convicted ES under Article 188 of the Criminal Code, specifically for disparaging religious doctrines in a manner capable of arousing justified indignation; they also charged her with a €480 fine. Later ‘Ms S’ appealed to the Austrian Supreme Court which came to no avail. Failing this, she then went to the European Court of Human Rights. She claimed that the criminal conviction violated her right to freedom of expression under Article 10 of the European Convention of Human Rights. She contended in her appeal that her statements were based in fact and so these were not mere value judgements. Rather they were objective criticisms of religion meant to contribute to public debate. She also submitted that religious groups were akin to public institutions and so should be subject to criticism. Criticisms could also be based on ambiguous facts if they did not incite violence.

The ECHR first admitted that religious groups did have to tolerate the propagation of doctrines hostile to their faith, as long as these statements did not incite hatred or violence. Legitimate criticisms could be levelled at the Islamic religion, provided it was expressed in a way that did not seek to provoke or cause justified indignation. The ECHR noted that the Regional Court had interpreted the Criminal Code in this way. The ECHR then went on to say that while the statements ES made were not without factual basis, she had also attached her own subjective ideas. She had not informed her audience of the historical background regarding Muslim marriage in a neutral manner, and consequently could not have a serious debate on the issue. Furthermore while Ms S’s remarks were made in the context of a lively discussion, the ECHR ruled that this did not excuse the nature of her comments. Finally the court noted that Article 9 of the European Convention of Human Rights requires Convention States to ensure peaceful co-existence and mutual tolerance between different religious groups.

Regarding ES’s comments, it is not surprising that the court upheld her conviction. ES’s labelling of Muhammad may contain some truth (Aisha’s age has been a source of contention amongst Muslims for a long time), but that does not mean it is the singular truth. As the ECHR noted, if ES wished to have a public, reasoned debate, then she ought to have quoted both the context of seventh century Muslim marriage and the fact that Aisha’s age is still disputed amongst some scholars. Furthermore, in this author’s opinion, calling Muhammad a Paedophile does not advance any debate; if anything it is likely to incite Muslims. It is not wrong at all to question a religious figure or indeed any part of a religion, but it is another thing to say ‘one can never approve of a thing like that,’ without hearing someone else’s perspective.

However the ECHR’s judgment is not without flaws. The Court’s idea that dissenting ideas must be phrased in a way that is conducive to public discourse could prove problematic in the future. Dissenting ideas rarely land without some crash. Also disputed ideas (especially the ones concerning religion) are disputed because of the precarious nature of the facts. ES’s mention of Muhammad’s possible paedophilia appears to be an easily identifiable attempt to stir up some anti-Islamic feeling. But what if had been part of a genuine academic debate? What if her comments had given some context? It is likely that no case would have been lodged, but it is equally likely that there would have been some discomfort from the 600,000 Muslims inhabiting Austria.

Some have termed Article 188 of Austria’s Criminal Code as a new version of a blasphemy law. I would disagree as the section qualifies its prohibition with the idea of ‘justified indignation’ which would suggest that there has to be some particularly robust reason to feel offended. However as societies grow more and more multicultural, the possibility of offending certain religious groups sensibilities will only increase. The law must learn to steer a safe course between this motley collection of communities. Blasphemy laws are no longer tenable in our society but there will be a future need for laws which can discern between those who wish to deepen division and those who wish to contribute ideas. The ECHR’s may be step towards that, or it may be the first of many follies on the road to completion. It is hard to tell. But as Oliver Wendell Holmes also said ‘the life of the law has not been logic; it has been experience,’.


By Daniel Forde – Law Editor