A Global Perspective on the Regulation of Free Speech – Is there a Duty to Weigh the Rights of “Others”?

The controversial cartoons of the prophet Muhammad, published by the Danish journal Jyllands-Posten and the French Charlie Hebdo, raise fundamental legal questions concerning the global reach of laws regulating speech: Should state prosecutors and courts take into account the effects of the speech on those who find it offensive, even if the latter are foreigners who live thousands of miles away?

This question is relevant for state organs of both the country where the expression takes place and the countries where the expression is received. So not only did the Danish and the French courts have to address this issue (in the cartoons examples above), but also state organs in foreign jurisdiction may be asked to react. For example, a German Federal Court has found that it had criminal jurisdiction over an Australian citizen that had expressed views denying the Holocaust on an Australian-based website, because the site had been accessible in Germany. And of course, there is the famous Yahoo!/LICRA litigation involving French and American courts, and the debate about who has the right to be forgotten (and against whom). What weight should the German or French prosecutors and courts give to the fact that the speaker enjoyed freedom of speech in her country?

Laws regulating speech usually include no spatial delimitations. As a result, they can be read as requiring state organs to consider also the impact of expression on foreign audiences. The “insult” could theoretically also be the insult of the foreigner, and similarly a “publication that is liable crudely to offend the religious faith or sentiment of others” (Article 173(a) of the Israeli Penal Law) could include offence to the religious faith of “others.” Likewise, the French law that defines “any offensive expression, term of contempt or invective not containing an allegation of fact” as “an insult” could in principle refer to an expression that “foreigners” view as “offensive.”

When international conventions that protect human rights authorize states to subject freedom of expression to “conditions, restrictions … for the protection of the reputation or rights of others,” (Article 10 of the ECHR, Article 19 of the ICCPR), do they include foreigners in faraway lands among the “others”? If so, who defines their “rights”? Are there situations where the authority to protect the rights of others becomes a duty to do so?

With respect to the last question, the jurisprudence of the ECtHR offers inconsistent responses. The court did include foreigners – both foreigners who resided in other European countries and even those who lived outside Europe – among those affected by domestic speech and subject to the state’s duty to protect. It determined that Germany was responsible for the infringement of the privacy of Princess Caroline from Monaco by the German press. Later, the same court examined the merits of a claim by a person residing in Mozambique that a publication by a Swedish journal had violated his right to respect for his private and family life under the Convention. Interestingly, in both cases the court did not dwell upon the foreign factor, as if it was self-evidently covered by the treaty. These decisions conform to the general principle that the court explicitly acknowledged in another (not speech-related) decision, namely that “the responsibility of the High Contracting Parties may be engaged by [internal] acts of their authorities that produce effects outside their own territory.”

On the other hand, when Moroccan citizens and NGOs petitioned to the court against Denmark’s lack of repression of the caricatures of the prophet Muhammad published by Jyllands-Posten, the Court found the petition inadmissible due to the limited spatial scope of the convention. In that judgment the court found that the contracting states “must answer for any infringement of the rights and freedoms protected by the Convention committed against individuals placed under their ‘jurisdiction’ [and] persons affected when situated outside the jurisdiction cannot be regarded as ‘within the jurisdiction’ of that state.”

Needless to say, this insistence on the jurisdictional clause detracts considerably from the promise embodied in the human rights conventions to extend the protection of the rights to “everyone.” This is probably why the ECtHR itself overlooked the question of jurisdiction in the cases cited above.

Beyond the regulation of speech, the more general question exposed here is whether the principle first pronounced in the Trail Smelter arbitral award, namely that “no State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another,” should encompass all regulatory decisions that have extraterritorial effects, including when the “injury” is not tangible or is a matter for normative assessment, proportionality and balancing. At the very least one could expect regulators to take into account (also) the impact of the regulations on “others.”