Hate Speech and the European Court of Human Rights: The Low Threshold Hatred Paradigm—When "Offence" Is Enough to Restrict Speech

In this third post in The Volokh Conspiracy guest series, I examine a critical issue in the European Court of Human Rights' (ECtHR) hate speech jurisprudence: its embrace of what I term the "low threshold hatred paradigm." Under this approach, expressions that offend, insult, ridicule, or defame minority groups are routinely held to fall outside the protection of Article 10 of the European Convention on Human Rights (ECHR). This, I argue, has diluted the robust speech protections previously associated with the ECtHR's celebrated precedent in Handyside v The United Kingdom (1976), a landmark case on the freedom of expression and its boundaries. As a result, the ECtHR's jurisprudence increasingly reflects not a balancing of rights, but an asymmetric favoring of state-defined "tolerance" over pluralistic expression. This approach risks insulating majoritarian or institutional viewpoints from critique under the guise of promoting social cohesion.

From allowing speech that may "shock, offend, disturb" to prohibiting offense, insult and ridicule

The ECtHR famously held in Handyside that Article 10 on the right to freedom of expression protects not only inoffensive speech, but also that which "offends, shocks or disturbs." In theory, this forms the backbone of European free speech protection. In practice, however, the ECtHR's hate speech rulings suggest a growing willingness to subordinate the Handyside principles to vague concepts such as the values and spirit of the Convention, particularly when the speech in question targets protected characteristics such as religion, ethnicity, or sexual orientation.

The paradigmatic shift can be traced most clearly to Féret v Belgium (2009), where a far-right member of parliament was criminally convicted for distributing anti-immigration leaflets during an election campaign. The ECtHR upheld the conviction, holding that statements such as "Stop the Islamization of Belgium," were likely to arouse feelings of "distrust, rejection or hatred" and thus justified interference. In a blistering dissent, Judge András Sajó warned that the majority had abandoned the foundational principle that speech must be protected especially "when we face ideas that we abhor or despise." He cautioned that "humans, including judges, are inclined to label positions with which they disagree as unacceptable and therefore beyond the realm of protected expression." According to Judge Sajó, the Féret majority treated the public as susceptible "nitwits," incapable of resisting emotional manipulation. This marked the emergence of a paternalistic framework: citizens need protection not just from direct harm, but from exposure to ideas the ECtHR deems offensive.

The "Féret doctrine" spreads: Le Pen, Zemmour and beyond

In the years since Féret, the ECtHR has cited and silently applied its logic across a range of cases. In Le Pen v France (2010), the ECtHR dismissed, without a full Article 10 review, a complaint from Jean-Marie Le Pen after he was fined for warning of a Muslim "conquest." As in Féret, there was no incitement to violence or unlawful acts, but the ECtHR found the statement "likely to arouse a feeling of rejection and hostility." In Zemmour v France (2022), journalist and politician Eric Zemmour was fined for claiming on live television that Muslims in France represent a form of "territorial occupation." The ECtHR again upheld the penalty, invoking Féret's reasoning that hate speech includes "insults, ridicule or defamation" without needing to cross into incitement. Despite acknowledging the statements touched on a matter of public interest, immigration and national identity, the ECtHR found that Zemmour's words were "not merely criticisms of Islam" but rather calls to marginalize Muslims. While Article 17 which prohibits the abuse of rights provided for by the ECHR was not formally applied, the ECtHR declared that the statements were "not protected under Article 10 in light of Article 17," blurring the boundary between exclusion and interpretation.

Political speech: still protected?

The ECtHR purports to give enhanced protection to political speech, especially during election periods. But its recent hate speech rulings appear to exempt themselves from this norm. In Féret, the ECtHR held that alleged racist speech becomes more harmful in electoral contexts, since it may "contribute to stir up hatred and intolerance." This logic was reiterated in Zemmour, where the applicant's public profile and media reach were cited as reasons for heightened responsibility. But as the dissenters in Féret argued, this effectively reverses the burden: instead of acknowledging the value of robust public debate, the ECtHR uses influence as a reason to silence it. What we are witnessing is not a careful balancing between expression and harm, but a presumption against controversial speech, especially from populist or right-wing politicians. The danger, of course, is that courts begin to enforce viewpoint-based restrictions under the cover of neutrality.

Elastic concepts of harm

A central concern throughout these cases is the ECtHR's failure to define the harm that justifies speech restriction. The ECtHR rarely explains how contested speech threatens democracy, minority rights, or public order in any concrete sense. It invokes abstract notions which it does not extrapolate on such as "social tension" and "trust in democratic institutions" but provides no standard for measuring these effects or proving a causal link between the speech and its consequences. In Féret, the ECtHR did not assess whether the applicant's leaflets led to hostility or discrimination, nor whether less restrictive measures could address the concerns. Instead, it accepted the government's position that the speech was harmful, treating emotional or reputational discomfort as sufficient for criminal sanctions. This trend continued in Lilliendahl v Iceland (2020), where a man was fined for online comments describing LGBTQ+ people as "sexual deviants." The comments were not widely disseminated nor where they uttered by a politician or someone else with a certain standing, yet the ECtHR upheld the penalty, holding that the expression of "disgust" itself justified restriction.

Platform, audience, and inconsistency

Another inconsistency concerns how the ECtHR weighs the medium and reach of speech. In Karataş v Turkey (1999), the ECtHR found that Kurdish nationalist poetry did not violate Article 10, partly because poetry reaches a relatively small audience. But in Lilliendahl, the limited reach of the speech (online comment under a news article) made no difference to the outcome. By contrast, in Soulas and Others v France (2008), the ECtHR found that a book's accessible style and wide distribution contributed to its potential harm. These cases reveal a lack of guiding principle. Sometimes reach matters, sometimes it doesn't. This inconsistency undermines legal predictability and reinforces the risk of arbitrary enforcement.

Toward a more coherent standard

While the ECtHR's goal of combating discrimination is principled and essential, its current trajectory in hate speech jurisprudence risks undermining the very values it seeks to protect. What is needed now is a recalibration, one that restores coherence to the ECtHR's speech doctrine and ensures that freedom of expression remains a meaningful safeguard in pluralistic democracies. At the heart of this recalibration should be a renewed commitment to the Handyside principle: the recognition that freedom of expression must extend not only to inoffensive or widely accepted speech, but also, and especially, to speech that shocks, offends, or disturbs. This foundational standard should not be treated as a rhetorical preface to judgments that ultimately uphold restrictions; it must serve as a guiding framework with substantive weight in legal reasoning. Crucially, the ECtHR must also articulate clearer thresholds for what constitutes hate speech, particularly in cases where the expression does not advocate violence or unlawful conduct. The current doctrine, where insult, ridicule, or prejudice alone can justify criminal penalties, leaves too much room for subjective interpretation and state overreach and is an anathema to the fundamental right to freedom of expression. A coherent standard requires more than abstract appeals to "social cohesion" or "democratic values"; it demands precise legal tests that distinguish between expression that merely causes discomfort and that which poses a demonstrable risk to the rights of others. To that end, restrictions on speech should be grounded in concrete evidence of harm. The ECtHR must move beyond assumptions about potential emotional injury or speculative societal disruption and instead require rigorous justification for why a particular expression crosses the threshold into legally punishable hate speech. Vague invocations of public order or institutional trust are insufficient when what is at stake is the criminalization of speech in democratic societies. Throughout the book I argue that the ECtHR must turn to the rich body of academic literature from legal and social science to support this recalibration.

Moreover, any interference with political expression must be subjected to strict scrutiny. Political discourse, even when provocative, lies at the core of democratic participation. It is in this domain that the doctrine of the margin of appreciation should narrow, not expand. Deference to national authorities cannot excuse the abdication of the ECtHR's supervisory role, particularly where laws risk silencing dissent or chilling public debate. If the ECtHR is to preserve its credibility as a guardian of democratic freedoms, it must apply these principles consistently. Protecting vulnerable groups and confronting discrimination are legitimate and necessary aims. But they must not come at the cost of abandoning the robust, principled protection of free expression. As things stand, the ECtHR's low-threshold paradigm threatens to turn Article 10 into a conditional liberty, available only to those who speak within the bounds of what is socially comfortable or politically acceptable. That is not the promise of the Convention. It is a warning sign.

[UPDATE 10:31 am from EV: Sorry, originally posted this under my own name, but it's of course Natalie Alkiviadou's guest-post; just corrected this.]