6 No. 57 JUSTICE European Case Law on Holocaust Denial In three separate judgments, the ECtHR has ruled that Holocaust denial is a breach of the Convention, thereby establishing the fact that, in certain cases, Holocaust denial constitutes incitement to hatred. In the first case, the French Holocaust denier Roger Garaudy sought to overturn his conviction for denying the Holocaust that was upheld by the Court of Cassation. The ECtHR ruled that his right to free speech enshrined in Article 10 of the Convention did not outweigh his duty not to dispute the existence of crimes against humanity, contained in Article 17. They further stated that the purpose of Holocaust deniers was to rehabilitate the National Socialist regime, to accuse the victims of the Holocaust of falsifying history, and therefore constituted one of the most severe forms of racial defamation, and of incitement to hatred.10 In Honsik v. Austria, the European Commission on Human Rights, sitting in private as a court, dismissed the applicant’s complaint under Article 10 of the Convention that his right to freedom of expression had been violated when he had published material denying the facts of the Holocaust in his periodical, Halt, in September and November 1986, and that they constituted National Socialist activities within the meaning of Section 3(g) of the Austrian National Socialist Prohibition Act.11 In Marais v. France, Pierre Marais had complained that the French courts had convicted and sentenced him for defending war crimes, publishing racial insults, denying crimes against humanity and publishing racially defamatory statements for an article about the NatzweilerStruthof death camp in the journal Revision. In June 1996, the Court dismissed his claim that the French court was biased against him and had no right to rely on the judgment given by the Nuremberg International Military Tribunal.12 Although it does not deal with antisemitism, the Delfi AS v. Estonia case lays down an important principle, though one that some have found contentious, namely that a publisher is liable for the material on his platform if it contains illegal content. This has important implications for the right of Jews, among others, not to be defamed or not to be the focus of incitement to hatred.13 The case concerned the liability of an Internet news portal for offensive comments that were posted by readers below one of its online news articles. In particular, the domestic courts had rejected the portal’s argument that under the EU Directive 2000/31/EC on Electronic Commerce, its role as an Internet society service provider or storage host was merely technical, passive or neutral, finding that the portal exercized control over the publication of comments. Before the Court, the applicant company complained that being held liable for comments of its readers breached its right to freedom of expression. The ECtHR upheld the judgment of the Estonian courts regarding the liability of an Internet news portal for offensive comments posted by readers in 2013. It rejected the argument that an ISP’s role was merely technical, passive or neutral, finding that it must exercise control over the publication of comments. The judgment was upheld two years later by the higher Grand Chamber, to which the earlier judgment was referred for final adjudication. The case therefore concerned the duties and responsibilities of Internet news portals that provide on a commercial basis a platform for user-generated comments on previously published content and some users, whether identified or anonymous, engaged in clearly unlawful hate speech that infringed the rights of others. The Delfi case did not concern other fora on the Internet where third party comments could be disseminated, for example an Internet discussion forum, a bulletin board or a social media platform. The Grand Chamber held by a majority decision that there had been no violation of the applicant’s freedom of expression and therefore no breach of Article 10 of the Convention.14 Some Cases from the European Courts On July 11, 2008, at Leeds Crown Court in the UK, Stephen Whittle was convicted of four counts of publishing racially inflammatory material and Simon Sheppard was convicted of nine counts of publishing racially 10. Garaudy v. France, 65831/01, ECtHR, press release (2003). 11. Honsik v. Austria, Eur. Comm'n H. R. First Chamber (1997), ECtHR, available at hudoc.echr.coe.int/eng?i=00146008#{"itemid":["001-46008"]} (last visited Sept. 9, 2015). 12. Marais v. France, Application No. 31159/96, Decision of June 24, 1996 on the admissibility of the application, ECtHR, available at hudoc.echr.coe.int/sites/eng/pages/search. aspx?i=001-88275#{"itemid":["001-88275"]} (last visited Sept. 9, 2015). 13. Delfi AS v. Estonia, ECtHR, Application No. 64569/09, Decision of October 10, 2013, available at http://hudoc.echr. coe.int/eng?i=001-126635#{"itemid":["001-126635"]}. 14. Press Release, the Registrar of the Court, ECtHR. Commercially run Internet news portal was liable for the offensive online comments of its readers (June 16, 2015), available at http://hudoc.echr.coe.int/app/conversion/ pdf/?library=ECHR&id=003-5110487-6300958&filena me=003-5110487-6300958.pdf (last visited September 9, 2015).
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