Esther Janssen is a legal researcher in the field of fundamental rights and religion. She received her doctorate from the University of Amsterdam (2014), where she studied French language and literature and Law (L.L.M 2007). During her studies she specialised in Information Law and Freedom of Expression. Previously Esther worked as a lawyer for the Dutch Association of Journalists (NVJ), and for a Dutch Law firm specialised in Media- and Information Law (Van Kaam Advocaten).

• CONTENTSAcknowledgementsChapter 1. General Introduction 1.1. Introduction 1.2. Aim of research 1.3. Research question 1.4. Outline and methodology 1.5. Scope and relevance Chapter 2. Analytical Framework Introduction1. Actions versus Opinions 1.1. The distinction between actions and opinions and a strict connection between opinions and subsequent actions 1.1.1. The general freedom to act, the free expression of opinions and autonomy 1.1.2. The Millian speech and harm-principle and the concept of the 'delit d'opinion' 1.1.3. Seditious libel and public order 1.2. Contra position: the intrinsic properties of opinions 1.2.1. Human dignity 1.2.2. Equality 1.3. Opinions as 'discriminatory actions' 1.4. The 'clear and present danger' and 'imminent lawlessness' tests in American free speech doctrine 1.5. European hate speech bans 1.6. Synthesis Actions versus Opinions 2. Contributions to Public Debate versus Other Types of Expression 2.1. Democracy; popular sovereignty and political participation 2.2. Public discourse 2.3. Abuse of rights2.4. The special position of politicians, the media and a typology of offenders 2.5. Synthesis Public Debate versus Other Types of Expression 3. Allegation of Facts versus Value Judgments 3.1. Truth and the marketplace of ideas 3.2. The fact/opinion-distinction and defamation laws 3.3. Group defamation 3.4. Holocaust denial 3.5. Criminal and/ or civil law 3.6. Synthesis Facts versus Value Judgments 4. Race versus Religion 4.1. Race 4.1.1. Race as a biological characteristic 4.1.2. Ethnicity 4.1.3. Nationality and xenophobia 4.2. Religion 4.2.1. Religion as a discriminatory ground 4.2.2. Demarcating a religious group 4.2.3. Religious intolerance, 'Islamophobia' and 'Defamation of Religions' 4.3. Relevance of the distinction for specific hate speech bans 4.4. Demarcation of hate speech from blasphemy 4.4.1. The offence of Blasphemy 4.4.2. Offence versus dignity 4.4.3. Freedom of religion and freedom of expression 4.5. Hate speech based on other discriminatory grounds: handicap, gender and sexual orientation 4.6. Synthesis Race versus Religion 5. Conclusion Chapter 3. European and International Law Introduction1. The European Convention on Human Rights (ECHR) 1.1. The general framework of Article 10 ECHR 1.1.1. Scope of freedom of expression under Article 10(1) ECHR 1.1.2. Limitations to freedom of expression under 10(2) ECHR 1.1.3. Categorization of expression 1.1.4. Facts or value judgments 1.1.5. Public debate and the media 1.1.6. Public debate and democracy 1.1.7. Public debate, politicians and political parties or groupings 1.1.8. Article 17 ECHR in the light of Article 10 1.2. Incitement to violence 1.3. Hate speech 1.3.1. The notion of hate speech in the ECtHR's case law 1.3.2. Hate speech on the basis of race under Article 17 1.3.3. Hate speech on the basis of race under Article 10(2) 1.3.4. Hate speech on the basis of religion under Article 17 1.3.5. Hate speech on the basis of religion under Article 10(2) 1.4. Demarcation with blasphemy and religious offence 1.4.1. The right to respect for religious feelings in accordance with 9 ECHR 1.4.2. Group defamation on the basis of religion 1.5. Holocaust denial as a particular form of hate speech 1.6. Positive state obligations and access to the ECtHR 1.6.1. Hate speech 1.6.2. Blasphemy, religious offence and religious violence 1.7. Synthesis ECHR 2. Selection of Resolutions and Recommendations of institutions of the Council of Europe 3. Additional Protocol to the Convention on Cybercrime, concerning the criminalization of acts of a racist and xenophobic nature committed through computer systems 4. EU Council Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law 5. The International Covenant on Civil and Political Rights (ICCPR) 5.1. Articles 19(1-2) ICCPR: freedom of opinion and expression 5.2. Article 19(3): restrictions on freedom of expression 5.3. Article 20(2): the prohibition of hate speech and relationship with Article 19 5.4. Synthesis ICCPR 6. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 6.1. The prohibition of all forms of racial discrimination in ICERD 6.2. Article 4 ICERD: the prohibition of hate speech 6.3. Articles 4 and 5 ICERD: relationship between hate speech and freedom of expression 6.4. Additional standards for discrimination and hate speech on the ground of religion? 6.5. Synthesis ICERD 7. Conclusion Chapter 4. France. Abbreviations IntroductionI. Liberte: free expression of opinion in French Law 1. History and fundaments: free expression of opinion or abuse by punishable acts 1.1. Constitutional protection of the free expression of an opinion 1.2. The concept of the 'delit d'opinion' 1.2.1. Defi nition of a 'delit d'opinion' in French legal doctrine 1.2.2. Le delit d'outrage a la morale publique et religieuse 1.3. The 1881 Press Act 1.3.1. The liberal aim of the 1881 Press Act 1.3.2. The press offences of the 1881 Press Act 1.3.3. The primacy of the 1881 Press Act 1.4. Relation between the legislator and the judge 1.5. Rights through the state and not against the state 1.6. Relation to international law: 'l'exception francaise' 1.6.1. A 'nationalistic' defence-reflex towards international law 1.6.2. France before the ECtHR 1.7. Conclusion II. Egalite: hate speech bans in accordance with the French Press Act 2. The French notion of equality 2.1. Equality as a central characteristic of the French Republic 2.2. Non-recognition of minorities under French law 2.3. Immigration and integration policy2.4. Representation through and consultation with religious and anti-racism associations 2.5. 'Laicite' as a subset of freedom and equality 2.6. Conclusion 3. The Pleven Act of 1 July 1972 3.1. Adhesions and reservations made to ICERD 3.2. The situation prior to the adoption of the Pleven Act: the Decree-law Marchandeau 3.3. The merit of the Pleven Act 3.3.1. Rationale of the Pleven Act of 1 July 1972 3.3.2. The hate speech bans 3.3.3. The criminalization of discrimination 3.3.4. The right of anti-racism associations to set in motion public prosecutions 3.4. Conclusion 4. Racial defamation 4.1. The criminalization of defamation 4.2. Intent and the presumption of bad faith 4.3. The designation of a group 4.3.1. Racial groups 4.3.2. Religious groups 4.4. Justifications 4.4.1. The exception of truth and the excuse of provocation:exclusion in the field of racial defamation 4.4.2. The demonstration of good faith 4.4.3. The influence of the case law of the ECtHR on the notion of good faith 4.5. Racial or religious defamation in context 4.5.1. The imputation of a specific fact on the ground of race or a value judgment in the context of a political debate: the Edgar Morin case 4.5.2. The imputation of a specific fact on the ground of religion or a value judgment in the context of a historical debate: the Paul Giniewski case 4.5.3. The imputation of a specific fact on the ground of religion or criticizing a religion in a humoristic context: Charlie Hebdo 4.6. Conclusion 5. Racial insult 5.1. Insult and intent 5.2. Designation of a group 5.2.1. Racial groups 5.2.2. Religious groups 5.3. Justifications: the excuse of provocation 5.4. The special case of the protection of religious feelings 5.4.1. The development of the right to respect for religious feelings pursuant 1382 CC and 809 CCP 5.4.2. The right to respect for religious feelings weakened by the priority of the press offences 5.4.3. The distinction between a religion and its adherents safeguarded by the French Supreme Court: the cases of Girbaud and Sainte Capote 5.4.4. Affirmation of the free criticism of a religion: Charlie Hebdo and the Mohammed cartoons case 5.5. Conclusion 6. Racial provocation 6.1. Provocation and intent 6.2. Discrimination, hatred or violence 6.3. The designation of a group 6.4. No justifications 6.5. Provocative expression concerning a religion in a humoristic or political context 6.5.1. The ridiculing of the Catholic faith 6.5.2. The political and public debate about Islam, 'islamization', and Muslim-immigration 6.5.3. Jean-Marie Le Pen and Le Front National 6.6. Conclusion 7. Modifications of the Pleven Act 7.1. Draft proposals to modify the Pleven Act in order to criminalize racist propaganda or the diffusion of racist and xenophobic ideas 7.2. The Act of 30 December 2004: extension of the scope of the Pleven Act to the discriminatory grounds of sex, sexual preference and handicap 7.3. Conclusion 8. The Gayssot Act of 13 July 19908.1. The situation prior to the adoption of the Gayssot Act of13 July 1990 8.2. The merit of the Gayssot Act 8.2.1. Rationale of the Gayssot Act of 13 July 1990. 8.2.2. The criminalization of revisionism 8.2.3. An aggravation of the sanctions of the hate speech bans 8.2.4. A reinforcement of the rights of anti-racism associations 8.3. Conclusion 9. Holocaust denial 9.1. Denial 9.2. Intent and the presumption of bad faith9.3. Crimes against humanity 9.4. Constitutionality and the value of human dignity: the Dieudonne case 9.5. Compatibility with international law: the cases of Garaudy and Faurisson 9.6. Revisionism as an abuse of right: 'neutralization' of the conflict 9.7. Development of memorial laws since 1990 and proposals to modify Article 24bis 9.8. Conclusion III. Fraternite: a shared role of the state and associations in the fight against racism and discrimination 10. The engagement of public prosecutions 10.1. The public prosecutor 10.2. The affected party 10.3. Associations 10.3.1. Qualification: legal entitlement and an interest to act 10.3.2. Les Francais Chretiens 10.4. Effective enforcement 10.5. Government policy 10.6. Conclusion Chapter 5. The Netherlands Abbreviations IntroductionI. Free expression of opinion in Dutch Law 1. History and fundaments: free expression of opinion provided theresponsibility under the law 1.1. History of freedom of the press 1.2. Constitutional protection of the free expression of opinion 1.2.1. Article 7 of the 1983 Constitution 1.2.2. Limitations 1.2.3. Proposals for reform 1.3. Vertical and horizontal effect 1.4. The relationship to freedom of religion 1.5. The relationship between criminal and civil law 1.5.1. Criminal responsibility and speech offences 1.5.2. Civil responsibility and the wrongful act of Article 6:162 BW 1.6. The relationship between the legislator and the judge 1.7. Influence of ECtHR case law 1.8. Conclusion II. The Dutch hate speech bans 2. The Dutch notion of equality 2.1. Equality in the Constitution of the Kingdom of the Netherlands 2.2. 'Pillarization' and minority policy 2.3. The separation between State and Church 2.4. Conclusion 3. The long preservation and final abolishment of the offence of blasphemy - Article 147 Sr 3.1. History 3.2. Elements of the offence 3.3. Application: the Donkey trial 3.4. Political developments and proposals of abolishment 3.5. Conclusion 4. Implementation of ICERD 4.1. Adhesions to ICERD 4.2. The situation before the implementation of ICERD 4.3. The merit of the implementation of ICERD 4.3.1. The hate speech bans 4.3.2. Rationale 4.3.3. The criminalization of discrimination 4.3.4. The prohibition of associations violating the public order 4.4. Conclusion 5. Group insult - Article 137c Sr.5.1. The criminalization of insult to an individual person 5.2. The criminalization of group insult 5.3. Intent 5.4. Designation of a racial group 5.5. Indirect insult on the ground of race 5.5.1. Nazi propaganda 5.5.2. Political criticism of the State of Israel 5.5.3. Holocaust denial as a subset of group insult 5.5.4. Proposal to create an offence penalizing the denial of genocides 5.6. Designation of a religious group 5.7. Indirect insult on the ground of religion: the Cancer called Islam case 5.8. Contextual review 5.9. The special case of the protection of feelings in civil cases 5.10. Concurrence between freedom of religion and freedom of expression 5.11. Desirability of the criminalization of group insult 5.12. Conclusion 6. Incitement to hatred, discrimination or violence - Article 137d Sr 6.1. Incitement and intent 6.2. Hatred, discrimination or violence 6.3. Designation of persons 6.4. Contextual review 6.5. Nazi propaganda: the Combat 18 case 6.6. The political discussion about immigration: the cases against the NVU, CP'86 and CD 6.7. The Wilders case: a controversial acquittal for hate speech uttered in the context of a political and public debate about Islam, 'islamization' and Muslim-immigration 6.8. Conclusion 7. Modifi cations of 137c-d Sr 7.1. Extension of the scope of 137c-e Sr to the discriminatory grounds of sex, sexual preference and handicap 7.2. Desirability of a free speech clause 7.3. Draft proposals to modify 137c-e Sr in the light of freedom of expression 7.4. Conclusion III. The government as the sole guardian of the public order 8. The engagement of prosecutions 8.1. The engagement of prosecutions by the public prosecutor 8.2. Appealing the dismissal of the prosecution 8.2.1. Complaint procedure of Article 12 Sv 8.2.2. The position of the affected parties in the Wilders case 8.2.3. Interested parties 8.3. Conclusion Chapter 6. Analysis And Conclusion Introduction1. Synthesis France, the Netherlands and the ECHR 1.1. France versus the Netherlands 1.2. The approach under the ECHR 1.3. Actions versus Opinions 1.4. Public Debate versus Other Types of Expression 1.5. Allegation of Facts versus Value judgments1.6. Race versus Religion 1.7. In sum 2. Towards greater consistency Bibliography Samenvatting School of Human Rights Research Series