Morality, sex and censorship at the European Court of Human Rights

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Andrew Smith

09 Dec 2016

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In a unanimous decision in Kaos GL v. Turkey, the European Court of Human Rights held that Turkey violated the right to freedom of expression (Article 10 of the European Convention on Human Rights) when it confiscated the publications of an association which promotes the rights of lesbian, gay, bisexual and trans (LGBT) people.

More than a decade has passed between the seizure of Kaos GL’s magazines and the European Court’s decision; and it was seven years ago that ARTICLE 19, together with Human Rights Watch and the Miller Institute for Global Challenges and the Law at Berkeley Law, made submissions in the case as third-party interveners.

… we’ve been waiting a while.

The finding of a violation is obviously welcome: to our knowledge, it is the first such decision from the European Court of Human Rights concerning the prior-censorship of an LGBT publication. The decision shines a spotlight on censorship for the “protection of morals”, and reasserts fundamental points of principle to limit the misuse of this legal basis for restricting freedom of expression. It also shows a willingness of the European Court to extend the protections of the Convention to sexually explicit expression.

The decision should be read in light of the significant barriers LGBT people still face in exercising their free expression rights in many of the Council of Europe’s Member States. In the last decade, the adoption of so-called “propaganda bans” in several countries are just one example of this worsening situation. As Vitit Muntarbhorn, the newly appointed UN Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity, has highlighted: this not a uniquely European problem

Against this background, it is disappointing that the European Court’s decision did not go further in identifying the discriminatory basis and impact of “morality” based censorship. The decision could have more clearly articulated that the protection of “morals” should not be tied to the “sensibilities” of a country’s population (or part thereof), as applied in other cases this may place minorities’ free expression in a precarious position: subservient to majoritarian prejudices. 

In our third party submission, we argued that morality is an evolving concept and should not be interpreted to singularly reflect majoritarian values. To prevent the abuse of this legal basis for limiting expression, we said that the Court should require the State to evidence the necessity of the restriction to prevent a real and specific harm to society. Framing such prohibitions in vague terms of “obscenity”, untethered to any requirement to demonstrate specific harm, should be considered incompatible with international law. Likewise, absolute prohibitions on minors’ access to information without robust justification should be considered unsustainable. Developments in international human rights law since the submission, including in relation to the freedom of expression rights of LGBT people, support these propositions and should inform how the Court addresses these issues in future.

The facts in Kaos GL

On 21 July 2006, the Criminal Court of First Instance in Ankara ordered the seizure of 375 copies of Issue 28 of Kaos GL’s quarterly magazine, preventing their circulation. The order, based on Article 162 of the Code of Criminal Procedure and Article 28 of the Constitution, alleged that the publication was contrary to the principle of protecting public morals. The publication featured articles, interviews and images offering analytical and critical perspectives on the role of sexual imagery and representation in the lives of LGBT people.

Following the seizure of the magazine, Mr Umut Güner, the President of Kaos GL and editor-in-chief of the magazine, was charged with publishing obscene images via the press under Article 226(2) of the Penal Code. Though acquitted in 2007 on the basis that the issue of the magazine was never distributed, it was a further five years until his acquittal was upheld on appeal and the seized magazines finally returned.

The court’s seizure order did not specify a particular article or image in Issue 28 alleged to be damaging to public morals. The criminal case against Mr Güner, however, was premised on a particular image: the reproduction of an oil painting by artist Taner Ceylan. Titled “Taner Taner”, it depicted two identical men with a likeness to the artist engaged in sexual intercourse (a modified version of the photo is available on the Kaos GL website). Interestingly, the original work had been publicly exhibited in Istanbul in November 2005, under the patronage of the Turkish Prime Minister and Ministry of Culture.

A violation of freedom of expression

The European Court of Human Rights ruled unanimously that the confiscation of Issue 28, sustained over a period of 5 years and 7 months, was not necessary in a democratic society and violated the applicant’s right to freedom of expression.

The decision reiterates several fundamental principles on freedom of expression:

  1. Art matters: artistic expression is given particular protection by the European Court on the basis that it provides all people the opportunity to take part in the public exchange of cultural, political and social information and ideas of all kinds. This is reflected at the international level, where Article 19 of the International Covenant on Civil and Political Rights (ICCPR), unlike the European Convention, specifically protects expression “in the form of art”.  The court considered Issue 28 to be of artistic value, without a need to distinguish the concept of art from “pornography” or “obscenity”.  
  2. Prior censorship is draconian: any measure that prevents expression from reaching its audience is a grave danger to democracy, and must attract close scrutiny to establish whether they can be justified.
  3. Information is a perishable commodity: even a short delay to the publication of a story or commentary may deprive it of its value and interest. For this reason, the European Court treats any measure delaying a publication from reaching its audience as a serious infringement of freedom of expression that requires robust justification.     

Notwithstanding this high level of protection, Article 10(2) of the Convention permits States to limit freedom of expression to achieve a list of collective or individual interests, including the protection of “morals”. But, a State cannot just cite one of these aims and then censor at will: they must show that any limitation is provided for by law, and is also necessary in a democratic society. So while the State can impose limitations on artistic works, the burden is on the State to justify those measures against the requirements of this “three-part test”.

However, in freedom of expression cases concerning public morals, the European Court’s approach gets a little more complicated. Going back to their seminal 1988 freedom of expression decision in Müller v. Switzerland, the Court has found it impossible to find a consensus among states on what “morals” means in the context of Article 10(2) of the Convention. The decision reiterates that the requirements of morality change over time and place, even within a State. In the absence of a common European standard, the European Court therefore often applies the “margin of appreciation” doctrine to give greater leeway to the national court’s interpretation of what is necessary for the protection of morals in their particular national context. This is based on an assumption that a court closer to the national context, having been presented with the relevant facts, is better placed to make this assessment.

But the margin of appreciation doctrine will only take a State so far at the European Court. The Kaos GL decision makes clear that a measure as extreme as seizing a magazine for over five years cannot be justified by a general invocation of public morality grounds without any specified motivation. The seizure order, and the response to the applicants’ attempt to challenge that order in national courts, did not specify which images or articles contravened public morals, or how they did so. Where the national court does not give reasons for the necessity of a censorship measure on the basis of “morals”, the European Court is required to apply its own analysis to the question of necessity.

That assessment has two parts. The European Court first addressed whether there was a pressing social need for the restriction. Giving the example of the “Taner Taner” image, the European Court decided there was. In their words, this image was particularly explicit, and “notwithstanding its intellectual and artistic character”, it “may be considered likely to offend the sensibilities of an uninformed public”, and was not appropriate for minors.

The European Court then asked whether the measure applied was a proportionate means of achieving the pressing social need. They decided it was not proportionate: nothing about the seizure order sought to limit its impact to protecting the groups that the European Court considered to be in need of protection. The measure instead had the effect of depriving the whole population of access to the magazine. In the view of the European Court, a less restrictive means of achieving the pressing social need could have been to prohibit sales to minors, or require an age advisory on the publication at the point of sale. The infringement of the right to freedom of expression could therefore not be justified by the requirements of Article 10(2) of the Convention, and it was therefore a violation. The decision demonstrates the willingness of the European Court to identify a State’s response to sexually explicit (or “obscene”) content as too excessive.

The question of discrimination

Kaos GL alleged that the seizure of the magazine not only violated their right to freedom of expression, but also that this was discrimination on the basis of sexual orientation and therefore additionally violated Article 14 of the Convention.  

However, because a violation of the Convention had been found under Article 10 alone, the European Court considered that it was not necessary to consider the applicability or merits of the discrimination complaint. This is an example of the Court exercising “procedural economy”, where for pragmatic reasons of reducing the burden of its caseload, they consider their task complete where a single article of the Convention is violated. This allows them to avoid entering what can be a repetitive exercise of judging the facts against multiple articles in the Convention.

A missed opportunity?

In the view of ARTICLE 19, while welcoming the finding of a violation of Article 10, the Kaos GL decision could have more clearly defined the circumstances in which the State can legitimately invoke the protection of morals as a basis for limiting rights. In particular, this would be important to prevent States from relying upon morality-based arguments to justify discriminatory limitations on freedom of expression in the future.  

In our view, the decision could be strengthened in three ways:

1. “Offensiveness” should be irrelevant. The European Court’s finding that the Taner Taner image was “likely to offend the sensibilities of an uninformed public”, to the extent that there was a pressing social need to limit its distribution, is dangerously subjective. This position appears to contradict the Court’s famous Handyside dicta that freedom of expression is applicable to information or ideas that “offend, shock or disturb the State or any sector of the population.” It renders vulnerable the political and sexual expression of LGBT people, which in many places may be against the status quo.

These problems are compounded by the way the decision seems to offer minors as one example of a group to whom distribution of the publication could reasonably be restricted, implying that limiting distribution to others (presumably adults) could also be justified. It appears to leave open the possibility that insulating adults susceptible to offense from ideas they do not like is a “pressing social need”.

The decision therefore does little to resolve the tension between protecting “offensive” expression and the protection of “morals” – missing the opportunity to provide clearer guidance in this regard. It could have made explicit that the prejudices of one section of society should not be privileged over the sexual expression of others, including of LGBT persons dissenting against majoritarian interpretations of what is deemed to be “moral”. The European Court effectively articulated this point in Alekseyev v. Russia (2010); Kaos GL would have provided an opportunity to test this in the context of “obscene” expression (in Alekseyev, the Court was at pains to distinguish Müller v. Switzerland,since the public expression in Alekseyev was not sexually explicit).

2. Censorship for the protection of children (or any other group) should be supported by evidence for preventing a real and specific harm. Though the decision makes clear that the State must provide reasons for invoking “public morals” as a basis for restricting freedom of expression, the European Court should have gone further to specify that the national court must show evidence that the limitation was necessary to prevent a real and specific harm to society.

It should not be assumed that expression that is “explicit” or “offensive” to the “sensibilities” of some adults is injurious to and therefore inappropriate for children. States’ obligations to protect the rights of the child to receive seek, receive and impart information should be considered in line with Article 13 of the UN Convention on the Rights of the Child (CRC). Not all children should be treated identically, rather, it is incumbent on States to take into account the “evolving capacity” of the child to exercise their own rights, giving due weight to the views of the child in accordance with their age and level of maturity (Article 12 of the CRC).

The decision lacks detail here. It could have identified a narrower “pressing social need” connected to an identified harm, e.g. to limit a child’s access to information that may be aimed at or otherwise encourage them to engage in sexual relations where they do not have the capacity to consent to sexual contact.

The European Court may have clarified a number of points through such an approach. It could have made clear that not all information concerning sex or sexuality is harmful to all minors, and that this publication in no way aimed at causing such harm. On the contrary, adolescents of a certain age and level of maturity may be considered to have a right to access critical commentary on sex, sexuality, and depictions of these themes in the form of art. This is critical for young people exploring their own identity and sexual orientation.

A greater focus on evidence-based harm would have built upon the European Court’s decision in Alekseyev, extending that approach to analysis of sexually explicit content. In Alekseyev, the European Court foundthat there is no scientific or social data “suggesting that the mere mention of homosexuality, or open public debate about sexual minorities’ social status, would adversely affect children or ‘vulnerable adults’.” Had there been closer scrutiny of these issues in Kaos GL, the European Court may have refrained from suggesting that a blanket prohibition on the sale of the magazine to children would have been proportionate.

We have urged the European Court to pay closer attention to the need to evidence alleged harms in the pending case of Bayev and others v. Russia, stressing that denying access to information on sex and sexuality to all children is harmful to their rights to freedom of expression, to health, and to education.

3. Recognising discrimination on the basis of sexual orientation matters. Given the decade that the applicants waited for this decision, the Court’s prioritisation of “procedural economy” over determining whether this censorship was also discrimination under Article 14 of the Convention (in conjunction with Article 10) is regrettable.

The decision provides the applicants with no reason why procedural economy has been favoured over determining the question of discrimination. This contrasts with a number of cases concerning the freedom of assembly rights of LGBT people where the European Court has found violations of Article 11 in conjunction with Article 14: Identoba and Others v. Georgia (2015), Alekseyev v. Russia (2010), and Baczkowski and Others v. Poland (2007).

Extending the rationale of these Article 11 cases to freedom of expression cases under Article 10 would not have been taxing. The UN Human Rights Committee did exactly this in its decision Fedotova v. Russian Federation (2012), finding the application of a so-called “homosexual propaganda” ban to violate the right to freedom of expression (Article 19, ICCPR) and the right to equality and prohibition on discrimination (Article 2(1) and Article 26 ICCPR). The Council of Europe’s Venice Commission has provided an authoritative framework for this type of analysis, making clear that in cases where discrimination is at issue there must be a much narrower margin of appreciation.  

Homophobia clearly motivated the Turkish authorities’ response to the Kaos GLpublication. The sledge-hammer-to-crack-a-nut reaction would be difficult to imagine if the same content appeared in a magazine with a predominantly heterosexual readership, especially if the content had explored similar issues in relation to portrayals of heterosexual sex. That the original Taner Taner work was displayed in a government-backed exhibit a year earlier in Istanbul without incident supports this conclusion.

In future decisions, the European Court should prioritise giving judicial recognition to the full impact of discriminatory human rights violations. Applicants who bring their cases to Strasbourg deserve this, and all people working to defend the rights of LGBT people would share in the vindication of this point. States must never be allowed to forget that the Convention does not tolerate discrimination of any kind.

 

 

 

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