Constitutional Rights: Testing the Limits of Freedom of Speech

 

The Issue

I was at a party on Saturday evening and the German comedian, Jan Bohmermann, came up as a discussion.  In the ZDF television show on German television last week, “Neo Magazin Royale,” the comedian presented a snide, satirical poem, in which he criticised Erdogan’s limitations on freedom of speech in Turkey.  In this program the comedian made personal jabs at the president, “including references to child pornography and sex with animals”.

Source: http://www.dw.com/en/what-turkish-satirists-have-to-say-about-the-böhmermann-affair/a-19180073

The person that I spoke to said that this was ridiculous and that this situation would not arise in the UK as the government would just laugh it off.   Furthermore, he questioned the appropriateness of a criminal penalty for espousing his opinion.

Legal Technicalities and UK Law 

My response was that whilst I agreed with his comments on how the UK government could respond, the UK government did not have any legislation that would enable a foreign minister to seek a criminal penalty within the jurisdiction of the British legal system.  As far as I am aware, (and I did check this in the Law Gazette, referenced below); defamation in the UK is covered by the UK Defamation Act 2013, damages for which are civil and not criminal.  This act came into force on 1st January 2014.  In that Act, the distinction is drawn between libel: something that is published in permanent form, i.e. in a newspaper, television, radio broadcast, book or internet article and slander: the spoken word.

In the English Courts (for the Scottish courts differ slightly, although there are similarities), defamation law is available to those as a mechanism for protecting serious harm to reputation where that damage can be proven.  Damages under libel can be awarded even if there is no financial loss whereas under slander, the claimant must prove that actual damage has been suffered.

Source: http://www.lawgazette.co.uk/law/legal-updates/libel-and-slander/5047889.fullarticle

Merkel’s Response 

I further said that I believed Merkel was in a difficult position to show that she was acknowledging Erdogan’s complaint in terms of addressing an existing point of law.  To hear his concern is not incorrect: the law is there and is something that needs to be addressed.  It is without doubt to me that Erdogan and his team of legal experts will have highlighted this law in order to challenge the legality of the satirical poem but if that legality is there, the only way in which it can be contested is to bring it out into the open and fight it.  Chancellor Merkel did in fact say on Friday last week that her government will put forward a proposal to reform the law.  The link below is an article from the New York Times on the subject, which also provides a video of Merkel’s speech, (with subtitles as it is in German).

Source: http://www.nytimes.com/2016/04/16/world/europe/germany-turkey-recep-tayyip-erdogan-jan-bohmermann.html  

Freedom of Speech according to the European Court of Human Rights 

Perhaps legal counsel could contest the antiquated law under European legislation, which often overrides national laws.  Article 10 of the European Convention of Human Rights states the following:

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Source: http://www.coe.int/en/web/freedom-expression/home/-/asset_publisher/RAupmF2S6voG/content/council-of-europe-adopts-guidelines-to-protect-media-freedom-and-journalists?inheritRedirect=false&redirect=http%3A%2F%2Fwww.coe.int%2Fen%2Fweb%2Ffreedom-expression%2Fhome%3Fp_p_id%3D101_INSTANCE_RAupmF2S6voG%26p_p_lifecycle%3D0%26p_p_state%3Dnormal%26p_p_mode%3Dview%26p_p_col_id%3Dcolumn-1%26p_p_col_count%3D3

Distinction between Satire and Insult

Deutsche Welle spoke with the internationally successful Turkish caricaturist M.K. Perker and Tuncay Akgün, editor-in-chief of the weekly satirical magazine, “Leman.”  I was interested in the question that raised the issue of the line between satire and insult:

Q: Bohmermann’s poem has also been criticized in Germany. In your opinion, is there a line between satire and insult?

A: M.K. Perker: Yes, there is a line. If it doesn’t contain a creative opinion, if there are no allusions, no jokes and no creativity, but just rants, then it’s an insult. But there’s also a difference between criticising a normal person and criticising a politician. It should be easier to criticize a politician, because it’s not personal. Their position is under fire, not their person. But of course it depends on how they exert power. If these politicians exercise their power in bad ways, they will be criticized more frequently. That’s normal.

Source: http://www.dw.com/en/what-turkish-satirists-have-to-say-about-the-böhmermann-affair/a-19180073

In an earlier article by Deutsche Welle, Bohmermann admits to testing the limits of satire.

The antiquated German legislation that has allowed Erdogan to file criminal charges

According to paragraph 103 of the German criminal code, an archaic clause rarely invoked in Germany, anyone who insults a representative or symbol of a foreign state faces up to three years in jail or a fine.

If the remark is found to be slanderous, the custodial sentence could be as long as five years.

According to paragraph 104a, criminal proceedings can be launched if “the Federal Republic of Germany has diplomatic relations to the other state …, a criminal complaint from a foreign government is lodged, and the Federal Government grants authorisation of the complaint.”

Here is a direct translation of the law:

The German Penal Code, or Strafgesetzbuch (StGB), section 103, can be invoked if there is an ‘insult of organs and representatives of foreign States (1) If a foreign head of State or who insulted a member of a foreign Government, that is in official capacity at home, or a head of a foreign diplomatic mission accredited to the Federal territory with relationship on their position, is punishable by up to three years or punished with fines in the case of the slanderous insult with prison sentence of three months up to five years.

(2) the fact publicly, in a meeting or through dissemination of writings (§ 11 ABS. 3) committed, section 200 is to apply. Also, the public prosecutor may file an application on notice of the conviction.’

Source:  https://www.gesetze-im-internet.de/stgb/__103.html

The Guardian in Philip Oltermann’s article of 14th April 2016 cites the following reference:

The  German Criminal Code recognises three types of defamation offence: insult (Beleidigung), defamation (üble Nachrede) and intentional malicious defamation (Verleumdung).

Insult (Art. 185) is punishable by up to one year in prison (two if committed “by means of an assault”) or a fine.

Defamation (Art. 186) is defined as assert[ing] or disseminat[ing] a fact related to another person which may defame him or negatively affect public opinion about him”. It is punished with a fine or imprisonment for up to one year. A sentence of imprisonment for up to two years can be imposed if the act is “committed publicly or through the dissemination of written materials“.

Slander (Art. 187) consists of a defamatory statement that the speaker knows to be false and that is aimed at damaging a person’s reputation “or endanger[ing] his creditworthiness”. The punishment is a fine or imprisonment for up to two years. A sentence of imprisonment for up to five years can be imposed if the act is committed publicly or via media.

Source: http://legaldb.freemedia.at/legal-database/germany/?target=criminal-defamation

Quoted in: http://www.theguardian.com/world/2016/apr/14/obscure-german-law-angela-merkel-recep-tayyip-erdogan

Oltermann states that triggering the above law requires both a notification from the offended party, Erdogan; and an authorisation from the government, Merkel.

Insulting foreign heads of state remains a criminal offence not just in Germany but also in Italy, Poland and Switzerland. Denmark, the Netherlands, Norway and Spain have remnants of these laws for royals in their criminal codes.

Political scientist Cengiz Aktar of Istanbul’s Suleyman Sah University says Erdogan’s decision to pursue the German satirist is ‘evidence of how emboldened he has become in his dealings with Europe.’  This has no doubt arisen as a result of the political leverage Erdogan has gained in Europe’s deal with Turkey to take in more refugees.

Source: http://www.voanews.com/content/turkey-president-german-satirist-jailed-insult-erdogan/3284537.html

The Law elsewhere in Europe 

On looking into this I found very good article on a report prepared by the parliamentary assembly of the Council of Europe; this was published by the International Press Institute (IPI) on 17th July 2014 and can be found below:

https://www.ifex.org/europe_central_asia/2014/07/17/defamation_laws/

I was unable to download the report itself (called the ‘Out of Balance‘ report), but the article covers a great deal and so did not find the need to delve further.

The report found that many European member states fell short of adhering to international standards on freedom of expression and, at the time of writing in 2014, found that just 5 in 28 member states had repealed their criminal defamation laws, despite an international consensus amongst legal experts that criminal punishments represent a ‘disproportionate restriction on free expression’.

20 of these member states had legislation that permitted imprisonment as a punishment for defamation which, the report suggests, contradicts the European Court of Human Rights’ stance that incarceration is never an appropriate punishment for said misdemeanour.  The report goes on to say that 6 of these EU member states elevate criminal punishments for defamation when the offended party is a public figure.

Additional Reading 

The following article from Carnegie Europe also makes interesting reading in relation to the above:

http://carnegieeurope.eu/strategiceurope/?fa=63329

Image references:

Merkel and Erdogan: http://www.articolotre.com/wp-content/uploads/2016/04/1672226_erdogan_bohmermann.jpg

Merkel: http://www.dagospia.com/img/foto/09-2013/angela-merkel-264911.jpg

Cartoon: http://farm4.static.flickr.com/3464/3816836752_1c82248556_o.jpg

Freedom: http://2.bp.blogspot.com/-kWdJrAilQfU/T27kwu4UPlI/AAAAAAAAAgY/XczQiQmCc8E/s1600/freedom-of-speech1.jpg