Restricting Freedom of Expression for Religious Peace: On the echr’s Approach to Blasphemy

Abstract

The ECtHR’s ruling in ES v Austria raises questions about the Court’s methodology in blasphemy cases. The ECtHR interprets Article 9 of the Convention as including a right to respect for religious feelings and presumes that ‘justified indignation’ may disrupt ‘religious peace’. Therefore, expression counting as ‘gratuitously offensive’ to religious feelings is not granted protection under Article 10. es v Austria reveals certain problems that arise when criticism of religion is driven by hatred and when religious insult merges with political criticism. This article argues that Strasbourg’s approach to blasphemy increases uncertainty about the boundaries of free speech. The terms ‘religious feelings’ and ‘religious peace’ are scrutinised, and the political context of es v Austria analysed. It concludes that by failing to distinguish clearly between blasphemy and incitement to hatred, and by upholding the criminalisation of questioning the Prophet Muhammad’s morals, the Court has jeopardised freedom of expression in Europe.