Freedom of Expression and Political Controversy: The ECtHR’s BDS Judgment

In its June 11 Baldassi et al v. France judgment (French original not yet translated), the European Court of Human Rights (ECtHR) confirmed and reinforced the fundamental right of freedom of expression in political discourse. The case concerned the prosecution and conviction of French activists involved with the so-called BDS (Boycott, Divestment, and Sanctions) movement, which targets the Israeli government’s policies in the occupied territories (for nuanced accounts, see here (in German) and here (in English)). As is well known, BDS has been the subject of fierce debate in various countries, including in Germany, where this has even led to a cross-party anti-BDS decision in the Bundestag (for a critique see here). The ECtHR found in favour of BDS activists, confirming its generous case law on the freedom of expression within the context of political debate: calls to boycott represent a legitimate exercise of the freedom of opinion as long as they do not incite violence, hatred, or intolerance.

The activists in the Baldassi case had called for boycotting Israeli goods in two French supermarkets in Alsace in 2009 and 2010 by identifying these goods to customers and distributing leaflets advocating their boycott. Criminal proceedings subsequently were initiated against the activists pursuant to Article 24(8) of the French Free Press Law (Loi du 29 juillet 1881 sur la liberté de la presse) (English explanation available here). This law sets out a prison sentence of a year or a fine of €45,000, or both, for individuals participating in activities that incite discrimination, hatred, or violence against a person or a group of people on discriminatory grounds (see French text here). The first instance ruling in French courts acquitted the activist defendants, finding, among other things, that their slogans, such as “Long live Palestine” and “Boycott products imported from Israel,” do not fulfil the requirements of the law. At most, the first instance ruling determined, the slogans constitute economic discrimination (ECtHR judgment, para. 12), which does not fall within the definition of the incitement crime provided in Article 24. However, a French appellate court reversed this judgment and convicted the accused activists (ECtHR judgment, paras. 13–15). France’s highest court, the Cour de Cassation, later rejected their appeal (ECtHR judgment, paras. 16–17).

The activists appealed to the ECtHR, arguing that their convictions violated Articles 7 (“no punishment without law”) and 10 (“freedom of expression”) of the European Convention on Human Rights (ECHR). The Court summarily rejected the complaint that the activists had been punished without law, stating that, according to the respective French case law, Article 24(8) encompasses economic discrimination in the form of calls to boycott Israeli products, even though it only speaks broadly of discrimination (without the “economic”) (paras. 35-41). In her dissenting opinion, Judge O’Leary provides a masterful explanation of why the matter is not that simple (para. 13-34). For one, O’Leary points out that the question always arises of how established a case law interpretation needs to be to satisfy the Article 7 legality requirement (see, for example, Pessino v. France, para. 28); for another – as is particularly relevant in this case – Article 225–2 of the French Penal Code, which explicitly includes economic discrimination, is referred to only in Article 24(9) of the Free Press Law, but not in paragraph (8), which is the specific subsection the activists were charged with violating.

Intricacies of Article 7 of the ECHR aside, the Baldassi judgment’s main effect beyond the specific outcome for the activists involved concerns the interpretation of freedom of expression pursuant to Article 10 of the ECHR. In this regard, from the outset it is striking that the parties to the proceedings agreed that the criminal conviction of the BDS activists constituted an intervention implicating Article 10 (para. 58). Furthermore, the Chamber unanimously found that overall, a violation of Article 10 had taken place (para. 81). Following the usual three-step test, the Chamber considered the following:

  1. Whether the French law in question constitutes a basis for limiting expression “prescribed by law” (ECHR Art. 10(2)).

  2. Whether the goal served by the French law – to protect the (economic) rights of third parties – here, of the Israeli importers and the sellers of the Israeli products – is legitimate in principle.

  3. Whether in the present case, the abovementioned restrictions were “necessary in a democratic society,” that is, whether they were proportionate in this case.

In this regard, the Chamber considers calls to boycott, as a “particular form of the exercise of freedom of expression” (“modalité particulière d’exercice de la liberté d’expression”) that is a legitimate means to employ in conflicts of political opinion. It distinguishes the concomitant demands for legitimate “differentiated treatment” (“traitement différencié”) from illegitimate discrimination against the addressees affected, finding that discrimination is characterized by the incitement to intolerance combined with violence and hatred. This marks a red line in political discourse. While political debate may be “polemical” and “virulent,” and yet not offend Article 10, it may not degenerate into violence, hatred, or intolerance (“sauf s’il dégénère en un appel à la violence, à la haine ou à l’intolérance”). It should also be noted that in political disputes about matters of general public interest – which in this case the Chamber finds explicitly encompasses issues related to Israel’s observance of international law and the human rights of the Palestinian population (para. 78) – freedom of expression can only be restricted under very narrow conditions. Indeed, this is settled case law (see e.g. here, para. 50).

Against this background, it follows that freedom of expression must be given due consideration in all State decisions with potentially restrictive effects, in particular in criminal court decisions. In other words, in light of ECHR Article 10, relevant criminal provisions need to be interpreted restrictively.

The Chamber found that such restrictive interpretation did not occur in the French prosecution of the activists. According to the Chamber, insufficient reasons were provided for the conviction (“ne repose pas sur des motifs pertinents et suffisants,” para. 80). The Chamber was also not convinced that the national criminal judge applied relevant rules in accordance with Article 10, or that the decisions were based on an acceptable evaluation of the facts (“n’est pas convaincue que le juge interne ait appliqué des règles conformes aux principes consacrés à l’article 10 et se soit fondé sur une appréciation acceptable des faits,” para. 80).

Irrespective of one’s stance on the BDS movement, this decision is of far-reaching significance, if only because it puts a stop to restrictions on the freedom of opinion – often based on unjustified accusations of anti-Semitic or other discrimination that affect corresponding anti-BDS initiatives in Europe (for the United States see here). In doing so, the Chamber wisely refrains from any evaluation of the legitimacy or merits of the BDS movement itself, ultimately only describing the history of the movement’s origins and concerns (para. 5). However, it does evaluate the call for a boycott that formed the subject of the dispute, finding it to be a legitimate form of political protest, without racist or anti-Semitic connotations or any incitement to hatred, violence, and intolerance (“Absence de propos racistes ou antisémites et d’appel à la haine, la violence et l’intolérance,” case abstract), noting with regard to the appellants that they were not convicted for the reasons mentioned (“les requérants n’ont pas été condamnés pour avoir proféré des propos racistes ou antisémites ou pour avoir appelé à la haine ou à la violence,” para. 71).

While some have characterized the Chamber’s decision as “firmly and categorically” rejecting the accusation that BDS’s attitude was discriminatory and anti-Semitic, this is probably going too far. After all, the Chamber was not required to decide on the merits of the BDS movement’s underlying claims, but rather solely whether certain French criminal court decisions were compatible with the ECHR. If the conduct on which the conviction was based still constitutes a permissible expression of opinion in this regard, then that is the end of the matter. The fact that certain statements made in BDS circles may go beyond what is permissible and hence, might not be protected under the ECHR, cannot be held against the activist-defendants in Baldassi.

It follows, therefore, from the Baldassi judgment that restrictions on freedom of expression that are based on sweeping accusations of racism and/or anti-Semitism – restrictions that sometimes are decreed by “civil inquisitors” at the highest levels of the State authority – are unlikely to be compatible with Article 10 of the ECHR and thus unlikely to withstand the ECtHR’s scrutiny in Strasbourg. The holding in Baldassi is also in line with German administrative court rulings that have overturned municipal prohibition orders against persons or groups affiliated with the BDS movement. For example, German courts have allowed a 2019 BDS event and admitted the German-Palestinian Women’s Association to participate in the annual Bonn “Culture and Engagement Festival.” In a similar vein, a U.K. government directive that prohibited local councils from refusing to invest their pension funds in companies that participated in the Israeli occupation policy was found to be illegal by the U.K. Supreme Court this April, albeit by a narrow 3-2 majority. British local authorities are thus free to boycott such companies.

(Editor’s Note: The author wishes to thank Margaret Hiley for her invaluable assistance in preparing the English version of this article and Just Security for helpful editing.)

Image: A man attends a protest rally organized by the Boycott, Divestment, Sanctions (BDS) movement on June 28, 2018 in font of Agora in Montpellier, southern France, against the performance of Israeli Batsheva Dance Company at the Montpellier Dance Festival. (Photo by SYLVAIN THOMAS/AFP)

 

About the Author(s)

Kai Ambos

Chair for criminal law, criminal procedure, comparative law, international criminal law, and international law, and director of the Study Center for Latin American Criminal and Criminal Procedural Law (CEDPAL), at the Georg-August-Universität Göttingen, Germany. Judge at the Kosovo Specialist Chambers, The Hague. Advisor (amicus curiae) of the Colombian Special Jurisdiction for Peace, Bogotá.