Viewpoint by Ben Hayes: "White man’s burden": criminalising free speech
01 January 2008
While the recurring publication of the ‘Danish cartoons’ of the Prophet Mohammed continues to provoke anger in the Muslim world and a defence of ‘free speech’ in the West, a proposed EU law on “public provocation” to terrorism could criminalise widely held political views – but it has barely raised a murmur.
In November 2007 the European Commission submitted a proposal to add three new criminal offences to the 2002 EU Framework Decision on terrorism [1]. If agreed by governments, EU countries will be obliged to criminalise “provocation”, “recruitment” and “training” for terrorism. Charges of “recruitment” and “training” will need to show a direct link with terrorist groups or activity (as defined in 2002), but the “provocation” offence is extremely broad, as it does not require a direct encouragement to commit terrorist acts but applies to any statements which create a “danger” of such acts being committed. According to the proposal:
public provocation to commit a terrorist offence" means the distribution, or otherwise making available, of a message to the public, with the intent to incite the commission of [a terrorist offence as defined in the Framework Decision], where such conduct, whether or not directly advocating terrorist offences, causes a danger that one or more such offences may be committed.
As
Statewatch pointed out in its analysis of the proposal, the wording of this definition is clearly likely to result in the criminalisation of the expression of political views (for example on the situation in Middle East or on certain conflicts within Member States),
even if that expression does not in any way include the advocacy of terrorism to support those opinions [2]. It will be enough that the authorities deem that there is a “danger” that this will happen, an actual terrorist offence as a consequence is expressly not necessary for the Framework Decision to apply.
The origins of the proposal
All three offences in the proposed Framework Decision are taken from the text of the 2005 Council of Europe convention on the prevention of terrorism [3]. This Convention started life in 2003 in a working group established by Council of Europe Justice ministers to consider the harmonization of laws on incitement to terrorism and the act of “justifying terrorism”, which was already illegal in Spain (where prosecutions for the crime of “apologia” have been extensive) and France (where prosecutions for “apologie” are extremely rare). After the Madrid bombings in March 2004 the Council of Europe mandated a far-reaching Convention addressing “public expressions of support for terrorist offences and/or groups”; “the instigation of ethnic and religious tensions which can provide a basis for terrorism”; “the dissemination of "hate speech" and the promotion of ideologies favourable to terrorism”.
The Council of Europe already had some experience in this area, having adopted in 2003 a Protocol to the “Cybercrime Convention” (of 2001) concerning the “criminalisation of acts of a racist and xenophobic nature committed through computer systems”, which addresses the dissemination of “racist propaganda” over the internet [4]. However, while this Protocol contains an opt-out based expressly on established national principles concerning freedom of expression, there is no opt-out in the terrorism Convention agreed in 2005. There is at least a “safeguards” clause (in article 12) which obliges states to respect “freedom of expression, freedom of association and freedom of religion”, “proportionality” and the prohibition of “arbitrariness or discriminatory or racist treatment”. But in the EU proposals, even these limited safeguards have been dropped.
The EU negotiations
The EU proposals are a recipe for an overbroad offence encompassing political opinion and giving prosecutors enormous discretion in deciding when and if to bring cases for “public provocation” to terrorism. So ber