Hate Speech and the European Court of Human Rights: An Overview of My New Book

The European Court of Human Rights (ECtHR) has traditionally maintained that freedom of expression safeguards speech that may "offend, shock or disturb." However, its stance on hate speech is not in line with this core principle. My book, "Hate Speech and the European Court of Human Rights" (Routledge, 2025), argues that the ECtHR's current trajectory, anchored in what I term the "low-threshold hatred paradigm" jeopardizes free speech by permitting restrictions on expression that is merely insulting or prejudicial, without any requirement of incitement to violence or hostility. Drawing on doctrinal analysis and normative critique, the book contends that the ECtHR's hate speech jurisprudence suffers from conceptual ambiguity, internal inconsistencies, and a lack of empirical grounding. The book examines hate speech jurisprudence of the now defunct European Commission on Human Rights and the ECtHR to allow for an inclusive analysis from the very onset of relevant cases. This guest blog will feature a series of five posts that highlight some of the book's key findings. The first post provides a general overview of some of the key issues developed in the book, followed by thematic explorations in the subsequent entries.

Definitions and justifications

The book starts off with the conceptual foundation for the book's critique. The initial chapter evaluates the disjointed and variable understanding of hate speech among international, regional, and national entities, such as the Council of Europe, the United Nations, the European Union, and prominent social media platforms. I contend that this ambiguity influences the ECtHR's jurisprudence, which is characterized by an unclear threshold and depends on normative rather than empirical evaluations of harm.

After grappling with definitional issues, the book considers the possible effects of hate speech, drawing from psychological, sociological, and legal scholarship. The chapter critically examines whether criminalization is an effective or justified response, warning of unintended consequences like the creation of martyrs, pushing hate underground, or chilling legitimate dissent. It emphasizes the ECtHR's tendency to adopt a militant democracy without substantively engaging with academic evidence on speech harms or the effectiveness of restrictions. This undermines both the freedom of expression and the democratic values the ECtHR aims to protect. To this end, I argue that:

Rather than adopting a "plaster approach" that seeks to regulate speech indiscriminately, the focus should be on addressing the structural inequalities that underlie and perpetuate the marginalisation of vulnerable groups. These deeper systemic issues are the root cause of hate speech's most damaging effects and require long-term, transformative solutions that empower marginalised voices to participate fully and equitably in public discourse.

From Handyside to Féret: The decline of free speech protection

The book proceeds to assess the approach of the ECtHR and, also, the now defunct European Commission of Human Rights to hate speech cases. It sets the scene by looking at Handyside v United Kingdom (1976), where the ECtHR stated that freedom of expression protects not only favorable opinions but also those that "offend, shock or disturb the State or any sector of the population." For years, this judgment served as a constitutional cornerstone of European free speech doctrine.

But in Féret v Belgium (2009), the ECtHR upheld the criminal conviction of a far-right politician who distributed anti-immigration leaflets. Although the speech lacked any direct call to violence or hostility, the ECtHR concluded that it "clearly incited discrimination and racial hatred" and was thus unprotected. This marked the shift toward a low-threshold paradigm, in which even insult or ridicule could qualify as hate speech. Subsequent decisions solidified this view. As argued in the book, "none of the cases amounted to incitement of any kind, and all involved the imposition of criminal penalties. The Court's broad interpretation of harm in such cases risks stifling legitimate public debate and disproportionately privileging state-sanctioned narratives, as highlighted in dissenting opinions…"

The result is a jurisprudence that too readily accepts vague national hate speech laws and too hastily dismisses the chilling effects they create. This reality risks eroding the expressive freedoms at the core of the European Convention on Human Rights (ECHR). As well as the low threshold of speech protection, another striking issue is the lack of a clear definition of "hate speech." In its case law, the ECtHR has never adopted a consistent doctrinal framework. Instead, it relies on impressionistic assessments. This has led to an overbroad understanding of what constitutes hate speech. As the ECtHR held in Féret, insult and stereotype in a political context may suffice. This broad reasoning does not differentiate between legitimately harmful speech and speech that merely causes discomfort or outrage. This minimal threshold permits state overreach and fosters self-censorship, particularly in delicate domains like as religion, sexuality, or migration.

Viewpoint discrimination and jurisprudential inconsistencies

A particularly troubling aspect of the ECtHR's jurisprudence is its selective application of Article 17 of the ECHR, the so-called "abuse clause." While intended to exclude incitement to violence or hatred from Article 10 protection, Article 17 is often invoked based on the ideological content of speech, creating de facto viewpoint discrimination. For example, in Garaudy v France (2003), the ECtHR excluded Holocaust denial from Article 10 (right to freedom of expression) by invoking Article 17, emphasizing the established historical nature of the Holocaust and its intrinsic link to anti-Semitism. But in Perinçek v Switzerland (2015), which involved the denial of the Armenian genocide, the ECtHR declined to apply Article 17. It cited the lack of a unified historical consensus and ruled that Perinçek's comments were part of legitimate political debate. As noted in the book:

"the selective application of Article 17 risks creating a hierarchy of historical suffering. Judicial protection should not depend on the geopolitical sensitivities or historical proximity of member states."

A similar inconsistency appears in the treatment of political symbols. In Nix v Germany (2018), a blogger was convicted for displaying Nazi symbols as part of an anti-racist post. Despite the clear critical intent, the ECtHR upheld the conviction, giving weight to national sensitivities about Nazi imagery. Yet in Vajnai v Hungary (2008), the ECtHR found a violation of Article 10 when a protester was punished for wearing a red star, a Communist-era symbol. In Fáber v Hungary (2012), the ECtHR protected use of the Árpád Stripes, historically associated with Hungary's fascist Arrow Cross party, citing freedom of expression. This differential treatment, where symbols or speech related to Nazi Germany are almost automatically considered unprotected speech, but Communist or fascist-nationalist symbols that did not emanate directly from Nazi Germany are not, reflects inconsistent viewpoint sensitivity, shaped more by political consensus than legal principle.

Towards a principled framework

The book argues that the ECtHR's jurisprudence must be reformed to maintain the integrity of Article 10 and to guarantee uniformity, transparency, and fairness. As well as the need for this change in light of the fundamental nature of the freedom of expression, it would strengthen the ECtHR's impact in an increasingly speech-restrictive online and offline world. The ECtHR ought to establish a precise and restricted definition of hate speech and set out a high threshold of harm in cases where violations of Article 10 are not found. This being said, I am cognizant of European tradition and, for example, of what was well-described in a dissenting opinion in Vejdeland and Others where Judges Yudkivska and Villiger noted that in the USA

"hate speech is protected until it threatens to give rise to imminent violence. This is a very high threshold, and for many well-known political and historical reasons, today's Europe cannot afford the luxury of such a vision of the paramount value of free speech."

Nevertheless, the ECtHR can look more closely to the threshold set by Article 20(2) of the International Covenant on Civil and Political Rights as interpreted by the six-part threshold test set out in the Rabat Plan of Action and seek to apply that more robustly than allow for the exclusion of offensive speech for example. Furthermore, it must eschew viewpoint prejudice by treating expression uniformly, irrespective of its ideological or historical significance. Article 17 must be used judiciously and uniformly, guaranteeing it does not replace the proportionality assessment outlined in Article 10 of the ECHR. Speech restrictions must be grounded in empirical harm rather than abstract assumptions or moral claims.

In the absence of these modifications, the ECtHR facilitates limitations of speech that undermine democratic discourse and suppress dissent. The jurisprudence must revert to the principles established in Handyside, confirming that the ability to offend is fundamental, not ancillary, to freedom of expression. The book argued, throughout, that the ECtHR should turn to the plethora of empirical and normative academic research to guide its decision-making on the intricately complex question of hate speech.