[ANALYSIS] A right to offend

MPs debating a forthcoming bill for the removal of religious vilification from the Criminal Code have their work cut out for them.

The Opposition and the Catholic Church are clear on the need to protect worshippers, of any religion, from so called ‘vilification’ – a crime that carries up to six months’ imprisonment for offending worshippers.

It has been a problematic crime for a society that aspires to European liberal standards but which hosts one of the most homogenous Catholic communities in Europe – not to mention that Roman Catholicism is constitutionally, the state religion.

Problematic, because of the wide berth the law allows for the prosecution of artists or broadcasters whose work offends the faith. Charlie Hebdo and masturbatory pontiffs? Possibly a very clear charge for vilification.

It was PN leader Simon Busutttil who said that removing the deterrent against vilification could easily be a threat to public order, suggesting that a liberal treatment of gratuitous offenders could bait religious hotheads to commit the unthinkable. Again, the Charlie Hebdo massacre looms large in MPs’ heads.

Hard to digest for Catholics...

The Maltese conundrum is at the heart of a ‘conflict’ between two fundamental rights in the European Convention of Fundamental Rights: the freedom of worship and freedom of expression, rights which may appear to be at loggerheads with each other.

Article 9 grants everyone the right to manifest one’s religion or beliefs, subject only to “necessary” limitations “in the interests of public safety, for the protection of public order.”

Likewise, Article 10 grants everyone the right to freedom of expression, but also subject to limits that include the “protection of health or morals, the protection of the reputation or rights of others…” amongst other restrictions.

The ‘Otto Preminger Institut’ case

Supporters of Busuttil’s cautious stand will cite the Otto Preminger Institut (OPI) case, an audiovisual arts club that took Austria to the European Court of Human Rights after it was prevented from screening the Werner Schroetr film Liebeskonzil. The film was banned on the grounds that it insulted the Christian religion. In 1994, the ECHR held by 6 votes to 3 that the banning was a justifiable limitation on the freedom of expression, because the film would offend Austrian Roman Catholics. Sounds just like Malta.

In fact the courts viewed the film and noted what they said was “the provocative portrayal of God the Father, the Virgin Mary and Jesus Christ” and that in seizing the film, the Austrian authorities acted “to ensure religious peace in that region and to prevent that some people should feel the object of attacks on their religious beliefs in an unwarranted and offensive manner.”

The OPI case sets a debatable standard for Malta, where its national pretention to Catholic piety has often been invoked to suppress the arts. The ECHR noted that the Innsbruck police were in fact “better placed… to assess the need for such a measure in the light of the situation obtaining locally at a given time.”

But the three dissenting judges in the OPI case capture the sense of frustration with this stand. 

Freedom of expression is famously illustrated as a fundamental feature of European democracies in the Handyside case (1978), when 20,000 copies of the The Little Red Schoolbook, written by Søren Hansen and Jesper Jensen – which contained a 26-page section concerning “Sex” for school-children – were seized by British police from the Handyside publishers.

In Handyside, freedom of expression was accorded to ideas that also “shock, offend or disturb the State or any sector of the population”, and that a government’s interference with this right – though permitted – had to be narrowly interpreted.

“There is a danger that if applied to protect the perceived interests of a powerful group in society, such prior restraint could be detrimental to that tolerance on which pluralist democracy depends,” the judges stated, pointing out that the European Convention did not strictly guarantee ‘a right to protection of religious feelings’ – which is what Malta’s Criminal Code [PDF] does.

Article 163 criminalises not just the vilification of religious faiths, but also the ‘giving of offence’ by vilifying those who profess their faith and its ministers, or its objects of worship – a wide berth that can place any ‘offensive’ work of art in the dock.

What the dissenting judges proposed in the OPI case was that freedom of expression should only be restricted by the authorities when they have to protect faiths and their adherents from abuse and intolerance. They said that those who avail themselves of the freedom of expression should limit the offence that may be caused. “The need for repressive action… can only be accepted if the behaviour concerned reaches so high a level of abuse, and comes so close to a denial of the freedom of religion of others, as to forfeit for itself the right to be tolerated by society.”

Which was the with the film Liebeskonzil: it was aired to a paying audience in an “art cinema” for a small public with a taste for experimental films, and with promotional posters that warned minors and the religiously sensitive to make an informed decision to stay away.

An American performance of Stitching

Unifaun director Adrian Buckle

Malta’s own ‘Otto Preminger moment’ must certainly be the ban on Unifaun Theatre’s interpretation of Anthony Nielsen’s Stitching. The Maltese courts upheld the censors’ ban, saying there was “nothing unreasonable in the board having viewed the play as being offensive to the culture of this country in its broadest sense” for “exalting perversion as if it was acceptable behaviour. Bestiality, the stitching up of a vagina as an act of sexual pleasure and having a woman eat somebody else’s excrement, rape and infanticide were unacceptable, even in a democratic society.”

The case is still pending before the European Court of Human Rights, a judgement which will once again reopen old wounds on judicial conservatism and the wide berth granted to religious sentiment and prejudice.

Is ‘offence’ victimless?

How far should we go in claiming for ourselves a right to offend? Our liberal societies have been tested by the murderous attack on the Charlie Hebdo offices. Sure, Christians can take it on their chin when a French satirical newspaper desecrates the Trinity in an act of auto-fornication. But should we risk ‘Muslim retaliation’ for satirising the Prophet?

The Guardian, 'On Satire' by Joe Sacco

Joe Sacco, the Maltese-American cartoonist, meditated on the subject of vapid and gratuitous offence after the Charlie Hebdo attacks in a cartoon for the Guardian. He drew a black man holding a banana falling out of a tree, and a hook-nosed Jew counting his money: caricatures that often made the press in the 1930s. Not funny by today’s standards, he surmises, as he asks whether Muslims enraged by European satire do not just ‘lack a sense of humour’ but whether this is a reaction from an antagonised and marginalised community.

Stephanos Stavros, the executive secretary to the European Commission against Racism and Intolerance (ECRI), and a former référendaire in the European Court of Human Rights, says that Article 10’s primary beneficiary of protection should be those who create the offence, but not those who take the offence.

Stavros however adds that governments are positively obliged to protect religious worshippers from hate speech or threats. He cites the Karaahmed case (2015) where the Bulgarian national police failed to investigate properly threats made against a mosque during a demonstration. “While freedom of expression is unquestionably a key European value, human-rights law cannot ignore the weakest, who are often the victims of hate speech. And while there can little disagreement that criminal law should be used sparingly in the field of freedom of expression, one should not lose sight of the powerful message it conveys and the role it can play in shaping public opinion,” Stavros writes.

And it is perhaps at this intersection that Malta’s overhaul of religious vilification appears to be heading: locating a crime of ‘religious vilification’ not merely at the point of offence, but where it threatens people’s security by virtue of their membership of a religious faith. 

In the past, the law was invoked to charge proselytisers from other faiths, satirists, Satanists, artistic producers, politicians, journalists, and pranksters.

But religions and ethnicities who identify with a faith should be protected from incitement to hatred – speech and actions that threaten people’s security. Religious offence is a victimless crime, the prejudice of the one who beholds it. MT

Australian law

The Queensland Anti-Discrimination Act 1991 contains prohibitions that are designed to protect people from vilification because of their race, religion, sexuality or gender identity. The legislation seeks to balance the right to freedom of speech with the right to be free from discrimination, harassment and harm.

It is unlawful to incite hatred towards, serious contempt for, or severe ridicule of a person because of their race, religion, sexuality or gender identity, by a public act. This gives rise to a civil claim, but it is a criminal offence if the unlawful vilification includes a threat of harm to a person or their property.

Examples of unlawful vilification in religion would be a building’s outside wall was painted with a swastika and the words “No Jews.” Exceptions that ensure that freedom of speech is not unduly restricted, include a public act done reasonably and in good faith for purposes in the public interest, including discussion and debate; or for academic, artistic, scientific or research purposes.

Crimes of offence

1948 Police v Peter Bridle A Jehovah’s Witness was prosecuted for selling literature on Kingsway deemed offensive to the Roman Pontiff [a 5c pamphlet titled ‘The Watchtower explains the Theocratic Government’]. He was then also charged for breaching the Press Ordinance which made “insult or ridicule of the Supreme Pontiff” a criminal offence. The Court of Appeal found that the book’s claims against the infallibility of the Pope, the immortality of the soul and the falsity of the Trinity went beyond the limits of “rational and dispassionate discussion”, and that sacred objects had been “gravely charged with scoffing”.

1962 Police v Rokku Abdilla At the height of the conflict with archbishop Michael Gonzi, the Labour Party president of the Zurrieq club affixes a poster stating: ‘Ave Nero, urbs quam incendisti te salutat’ (Hail Nero, the city you burned greets you), ahead of a visit from Gonzi. His two-month jail sentence was reduced to 12 days. Judge Harding said that in an “eminently Catholic country like Malta it was injurious to compare the Archbishop on the basis of the cruelty of historical personages like Nero, the incarnation of iniquity.”

1998 Police v Stafrace, Baldacchino, Busuttil The three were apprehended carrying out a black mass (13 March 1998 happened to be a full moon). The first court freed them because the alleged offensive ritual was not carried out publicly and that therefore, no element of offence was present. Judge Patrick Vella upheld the first court’s acquittal, quoting Sir Anthony Mamo in saying that no apprehension was felt by a public “unaware of the irreligious act committed in private… to drag such into the limelight of judicial proceedings would do more harm than good.”