A Brief Account of Offending Public Morals and Religious Sensibilities before the European Court of Human Rights

Abstract

The article analyzes the scope of the right to freedom of expression under the European Convention for the Protection of Human Rights and Fundamental Freedoms and the potential limitations arising from its intersection with the right to freedom of thought, conscience and religion as interpreted by the European Court of Human Rights. It focuses on examples of artistic expression that are deemed offensive to public morals as well as religious convictions in the European sphere. The main query in the article traces whether the Court sought an even-handed approach towards restrictions on offensive speech arising from different moral and religious backgrounds in Europe and whether it changed over time. This entails an assessment of the rationale in upholding imposed restrictions on various forms of artistic expression, which found their way to the Court by means of offending public morals, committing religious defamation and blasphemy, besides inciting religious hatred. The analysis highlights some of the inconsistencies in the Court’s supervisory role in light of its reliance on the margin of appreciation doctrine to avoid playing a norm-setting role in matters of morality and religious sensibilities, which are left to the Member States to formulate according to their specific legal orders and particular social needs.