Facts and Proceedings:

The European Court of Human Rights has ruled against a controversial French anti-Semitic comedian, Dieudonne M’Bala M’Bala, who claimed his right to free expression (under Article 10 of the European Convention of Human Rights). The Court found that the right to free expression did not offer protection for anti-Semitism or Holocaust denial. Consequently, on November 10^th, the Court held the appeal inadmissible.

At the end of a show on December 26^th 2008, the comedian Dieudonne invited an infamous negationist and revisionsist, Robert Faurisson, who denies the existence of gas chambers in concentration camps in World War II, onto the stage. He received a prize for “unfrequentability and insolence” from an actor dressed like a Jewish deportee in a concentration camp. The prize took the form of a three-branched candlestick, which is a metaphor of the emblem of the Jewish religion, with an apple on each branch.

On October 27^th 2009, Dieudonne was prosecuted for “public insults directed at a person or group of persons on account of their origin of belonging, or not belonging, to a given ethnic community, nation, race or religion, particularly in this case, persons of Jewish origin or faith”. On the same day, the Paris court found Dieudonne guilty as charged and fined him 10,000 euros. Dieudonne, the public prosecutor of this case, and a number of civil parties appealed against this decision. On March 17^th 2011 the Paris Court of Appeal upheld the lower court’s judgment and on October 16^th 2012 the Court of Cassation also dismissed Dieudonne’s appeal.

The Reasoning of the European Court of Human Rights:

The European Court of Human Rights’ reasoning sided with the French courts on several matters. The Court agreed with the domestic courts about the highly anti-Semitic content of Dieudonne’s show. Dieudonne had brought an actor dressed like a Jewish deportee in a concentration camp to award a prize to Robert Faurisson, a negationist who is well known in France, to promote his negationism. The Court saw a demonstration of hatred and denial of the Holocaust in Robert Faurisson’s appearance and the deprecatory portrayal of Jewish victims facing someone who denied the fact of their extermination.

In addition, judging from the exchanges between the performer and the audience, the Court agreed with the Court of Appeal that the show could no longer be deemed as entertainment but instead as a political meeting. The audience was aware of what they were going to see in the show. And the audience’s reaction manifested that the anti-Semitic nature of the part of the show when Robert Faurisson was on stage was appreciated by those present. The Court also noted that Dieudonne had already shown his political commitment and had previously been convicted for racial insult. Dieudonne’s previous shows had already been described as the biggest anti-Semitic rallies since World War II.

With respect to Dieudonne’s claim of Article 10 in the European Convention on Human Rights, the Court scrutinised Article 17 (prohibition of abuse of rights) of the Convention and decided to apply it. The Court recognised that Dieudonne’s performance was not even satirical or provocative, which could have been fallen within the protection of freedom of expression. Conversely, it was a demonstration of “hatred and anti-Semitism and support for Holocaust denial” disguised as an artistic performance, which propagandised an ideology running afoul of the values of the European Convention on Human Rights. The reference and application of Article 10, freedom of expression, should not be deflected from its real purpose and spirit. Precisely because of that, the Court found that in the light of Article 17 Dieudonne could not attain the protection of Article 10 and dismissed his appeal; otherwise, the admittance of this case would contribute to the “destruction of Convention rights and freedoms”.

How Does Dieudonne’s Performance Differ from Charlie Hebdo’s Caricatures?

Dieudonne’s performeance during that show might seem quite like what Charlie Hebdo (the famous satirical journal that was subject to carnage as a result of its cartoon of Mohammed earlier this year) has been doing all these years: poignant sarcasm and provoking caricatures, both addressing religious groups. However Charlie Hebdo’s work is recognised as their freedom of expression. It has been pointed out that the differential treatment of Dieudonne and Charlie Hebdo is hypocritical and an example of double-standards. Why is Dieudonne’s show not entitled to the protection of freedom of expression?

Principally, the divergence lies in how French laws regulate freedom of expression. The Court of European Human Rights also took the position of French laws in this case. Charlie Hebdo can and does ridicule all religions openly and freely. Blasphemy laws have been absent from French laws since the French Revolution, however Dieudonne’s satirical show specifically targeted Jews, and therefore is contrary to the French Penal Code, which prohibits actions that incite “discrimination, hatred, or violence toward a person or group of people because of their race, nation, religion or ethnicity”. It is not a crime to blaspheme any religion, but it is prohibited to conduct hate speech or incite it towards certain people. It has been proposed that this distinction in laws reflects France’s anti-clerical roots, meaning that individuals are protected from defamation whilst churches and their religions are not. It is also how France’s secularism or laïcité differs from other states’: their laws are designed to protect individuals but not religions.

An additional reason to distinguish between Dieudonne and Charlie Hebdo is that the content of the satirise is different. Charlie Hebdo’s caricatures of religions were expressions of this journal’s opinions of religions, while Dieudonne’s show intended to facilitate the denial of the fact of the Holocaust. And this denial is outlawed according to a French law, the Gayssot Act, passed in 1990.