Licensed to kill…discourse? agents provocateurs and a purposive right to freedom of expression
| Author | Katie Pentney |
| Date | 01 September 2021 |
| DOI | 10.1177/09240519211033429 |
| Published date | 01 September 2021 |
| Subject Matter | Articles |
Licensed to kill…discourse?
agents provocateurs and a
purposive right to freedom
of expression
Katie Pentney
*
Institute for Information Law, University of Amsterdam, Amsterdam,
the Netherlands
Abstract
Undercover police operations have emerged from the shadows and into the spotlight in the
United Kingdom as a result of a public inquiry into undercover policing and the enactment of
the Covert Human Intelligence Sources (Criminal Conduct) Act. The inquiry has revealed troub-
ling details about the ways intelligence and police services have wielded their powers to infiltrate
and undermine political groups and social movements over the course of five decades. The prob-
lem is not exclusive to the United Kingdom, but is seen the world over. Yet despite the widescale
nature of the problem, the legality of agents provocateurs –undercover officers who infiltrate social
and political movements to manipulate their messaging, instigate violent tactics and undermine
public perception –has received scant attention in legal scholarship or the jurisprudence of the
European Court of Human Rights. This article capitalises on the current spotlight to suggest
that agents provocateurs can and should be conceived of as (potential) violations of the right to free-
dom of expression under the European Convention on Human Rights. A purposive approach is
required to ensure protection for not only the means of expression –the exchange of information
and ideas –but also the ends –vibrant democratic discourse and meaningful public debate.
Keywords
Freedom of expression, ECHR, agents provocateurs, covert operations, counterintelligence,
protest, positive obligations
* Visiting Researcher,Institute for Information Law (University of Amsterdam). I am grateful to Prof. dr. TarlachMcGonagle
and the editors and reviewers for their helpful feedback and incisive comments.
Corresponding author:
Katie Pentney, Institute for Information Law, University of Amsterdam, Nieuwe Achtergracht 166, Amsterdam, the
Netherlands.
Email: kaitlyn.pentney@wolfson.ox.ac.uk
Article
Netherlands Quarterly of Human Rights
2021, Vol. 39(3) 241–257
© The Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09240519211033429
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1. INTRODUCTION
The heroic spy, willing to do whatever it takes for Queen and country, is a much beloved and cele-
brated trope. James Bond –the perennial hero –gets the bad guy, each and every time. The tactics
he employs, and the legality of his actions, are barely an afterthought: whether he is wooing (and
bedding) the bad guy’s wife or girlfriend to get the inside track or killing anyone who gets in his
way, the ends always justify the means.
But undercover agents are not mere fictions on the silver screen or in the pages of spy novels.
Their actions have real-world consequences (and often unhappy endings). Just ask the political
groups and social movements around the world that have been targeted by agents provocateurs
–undercover police and intelligence officers who infiltrate protest movements to manipulate
their messaging, instigate violent tactics, and undermine public perception of the group, movement
and message.
1
Critically, an agent provocateur –an ‘authorized scoundrel’in the words of Joseph
Conrad
2
–is ‘someone who actually causes offences to be committed which otherwise would not be
committed at all’.
3
Governments in Europe and North America have been accused of employing agents provoca-
teurs to infiltrate and undermine groups pushing for educational and race reforms, environmental-
ism, labour rights, nuclear disarmament and democratisation. The inherent secrecy of such
operations makes it difficult to prove that an agent provocateur has been employed, much less
to pinpoint their role within –or impacts on –the movement itself.
But agents provocateurs have emerged from the shadows and landed on the front pages of
national papers in the United Kingdom of late for two reasons. The first is the Undercover
Policing Inquiry, launched in 2015, which has started hearing evidence into undercover operations
dating back to 1968 to unearth the ‘truth’about undercover policing and provide recommendations
for the future.
4
What has emerged paints a troubling picture of the ways intelligence and police ser-
vices have wielded their powers in the shadows. Over five decades, undercover police agents are
said to have infiltrated more than 1,000 political groups –including trade unions, anti-racist
groups, women’s rights groups, pro-Palestine campaigners, environmental activists and animal
rights groups.
5
Undercover agents are said to have spied on more than seventeen families cam-
paigning for justice and reform after the loss of loved ones –somber echoes of the Stephen
Lawrence scandal which rocked the Metropolitan police nearly three decades ago.
6
1. Gary T. Marx, ‘Thoughts on a Neglected Category of Social Movement Participant: The Agent Provocateur and the
Informant’(1974) 80(2) American Journal of Sociology 404. Marx notes that unlike an informant, an agent provocateur
‘more assertively seeks to influence the actions taken by the group,’for instance by provoking illegal actions and vio-
lence 404.
2. ibid 403, citing Joseph Conrad, The Secret Agent (Methuen & Co 1907) 75-6.
3. R v Mealey and Sheridan (1974) 60 Crim. R. 59 [62] cited in ML Friedland, ‘Controlling Entrapment’(1982) 32(001)
University of Toronto Law Journal 3.
4. Undercover Policing Inquiry (Inquiry)
5. ibid; Rob Evans, ‘Undercover police spied on more than 1,000 political groups in UK’(The Guardian, 27 July 2017)
undercover-police-spied-on-more-than-1000-political-groups-in-uk> accessed 28 April 2021. For a searchable database
of the political groups alleged to have been spied on, see Rob Evans, ‘UK political groups spied on by undercover police
–search the list’(The Guardian, 13 February 2019)
uk-political-groups-spied-on-undercover-police-list> accessed 28 April 2021.
6. Rob Evans and Paul Lewis, ‘Police “smear”campaign targeted Stephen Lawrence’s friends and family’(The Guardian,
24 June 2013) accessed
242 Netherlands Quarterly of Human Rights 39(3)
The second is the enactment, in March 2021, of the Covert Human Intelligence Sources
(Criminal Conduct) Act 2021 (CHIS Act or Act).
7
In the face of public outcry over the propriety
of covert operations –and a pending appeal over their legality –the Act authorises ‘covert
human intelligence sources’to commit unspecified crimes in the course of their operations
where necessary in the interests of national security, to prevent or detect crime or disorder, or in
the interests of the ‘economic well-being’of the UK.
8
Prior to its passage, the British government
assured Parliamentarians, and the public, that the CHIS Bill (as it then was) complied with the
European Convention on Human Rights (ECHR or Convention), including prohibitions on the
unjustified use of force and torture, fair trial rights, and respect for private and family life.
9
However, the use ofcovert agents may infringe other ECHR-protected rights–including freedom
of expression and assembly –and affect broader democratic interests where such undercover agents
go from sourcing information to creating or manipulating it; from surveilling individuals to prevent
future law-breaking to actively encouraging it.
10
The legality of suchoperations from a human rights
perspective has received scant attention by British Parliamentarians
11
or legal scholars,
12
and has yet
to be considered by the European Court of Human Rights (ECtHR or Court).
This article explores this novel terrain to shine a spotlight on the use of agents provocateurs as a
potential violation of freedom of expression under Article 10 of the ECHR.
13
The use of covert
agents may contravene freedom of expression where the agents intentionally turn movements
violent as pretext to suppress them: in doing so, they have impermissibly interfered with the
means of expression (the exchange of information and ideas) as well as the ends (vibrant public
debate and meaningful democratic discourse). More challenging cases arise where undercover
28 April 2021; Rob Evans and Vikram Dodd, ‘Stephen Lawrence case: Theresa May orders inquiry into police spies’
(The Guardian, 6 March 2014)
inquiry-police> accessed 28 April 2021.
7. Covert Human Intelligence Sources (Criminal Conduct) Act, 2021 c. 4. An additional pressure point for the government
concerns the pending appeal before the Court of Appeal concerning the so-called ‘Third Direction’judgment of the
Investigatory Powers Tribunal, which assessed the legality of such operations: (2019) UKIPTrib IPT_18_186_CH.
8. CHIS Act (n 7) ss 1(5)(5) and (6).
9. ibid Explanatory Notes, 1. See also Covert Human Intelligence Sources (Criminal Conduct) Bill, European Convention
on Human Rights Memorandum by the Home Office (ECHR Memorandum)
bills/cbill/58-01/0188/CHIS%20(CC)%20Bill%20-%20ECHR%20Memo%20FINAL.pdf> accessed 28 April 2021.
Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR),
as amended by Protocols No. 11 and 14, 4 November 1950 (CETS, No. 5).
10. Ben Fitzpatrick, ‘#SPYCOPS: Undercover Policing, Intimate Relationships and the Manufacture of Consent by the
State’in Chris Ashford, Alan Reed and Nicola Wake (eds), Legal Perspectives on State Power: Consent and control
(Cambridge Scholars Publishing 2016) 218, 219.
11. ECHR Memorandum (n 9) 12-29. Indeed, the memorandum refers onlyto Articles 2, 3, 5, 6 and 8, as well as Article 1 of
Protocol 1, of the ECHR; the right to freedom of expression in Article 10 is not mentioned.
12. By contrast, sociologists have been examining the impacts of undercover police officers on activist groups for decades:
see eg Marx (n 1); Raphael Schlembach, ‘Undercover policing and the spectre of “domestic extremism”: the covert sur-
veillance of environmental activism in Britain’(2018) 17(5) Social Movement Studies 491; Nathan Stephens Griffin,
‘“Everyone was questioning everything”: understanding the derailing impact of undercover policing on the lives of
UK environmentalists’(2020) Social Movement Studies 459.
13. Of course, agents provocateurs may also impact ancillary rights, including Articles 8 (privacy), 11 (freedom of assembly
and association) and 13 (right to an effective remedy) ECHR. An in-depth look at these provisions falls outside the scope
of this article. However, the analysis urged here may apply with equal force to allegations under Article 11, as the Court
has held that ‘the protection of personal opinions, secured by Article 10, is one of the objectives of freedom of peaceful
assembly as enshrined in Article 11’(see Ezelin v France App no 11800/85 (ECHR 26 April 1991) [37]).
Pentney 243
agents merely infiltrate protest groups and alter or interfere with the formulation and delivery of
their messaging. The precise dividing line where States can operate in the ‘marketplace of
ideas’
14
–through covert operations to foil terrorist plots, keep guns off the street, root out corrup-
tion –and where they violate rights is a difficult contextual exercise. The object of this article is to
take a first step in this analysis to distill the principles at play when States intentionally manipulate
the speech of private actors engaged in protest. Though agents provocateurs may interfere with
freedom of expression in myriad ways, the focus of this article is on the most acute, rights infringing
cases: those that infiltrate protest groups and incite violence and criminality. Greater scrutiny is
required in light of such agents’capacity to alter public discourse, quell dissent and undermine
efforts for peaceful reform –the hallmarks of democracy.
The first section of this article provides examples of the phenomena in Council of Europe
Member States –including the UK, Italy, Ireland, Germany, France and Ukraine –as well as
across the Atlantic in Canada and the United States. This serves to illustrate the scale and complex-
ity of the problem, as well as the variance in the forms and severity of the interference involved. The
second section analyses the relevant (albeit limited) jurisprudence of the ECtHR on agents provo-
cateurs, including a brief overview of the Court’s approach to such agents in relation to criminal
proceedings, and the footholds in its Article 10 case law which provide guidance on how the
Court might characterise the nature of the interference on freedom of expression. The third
section sets out how the Court ought to approach the proportionality analysis in such cases
provocateurs push protest movements towards violence to justify State suppression. The conclu-
sion reflects on the issues raised and suggests areas of further study and reflection.
2. SPIES, DAMNED SPIES, AND STATISTICS
15
Despite operating largely in the shadows, the use of –and reliance on –undercover agents by gov-
ernments is no secret. Indeed, governments around the world openly admit their use of undercover
agents to root out corruption, foil terrorist plots, and prevent drugs and guns from reaching the
street.
16
Moreover, some countries have legislated in and around the use of counterintelligence
operations, including the extent to which undercover agents may move from passive informants
to active participants in criminal activities.
17
This is the focus of the CHIS Act, discussed above.
In such instances, the intention behind the use of such covert operations and their necessity in a
14. This is a North American term that has been invoked by the Court: see Mouvement Raëlien Suisse v Switzerland App no
16354/06 (ECHR 13 July 2012) (Dissenting opinion of Judge Pinto de Albuquerque).
15. This is a riff on the phrase ‘lies, damned lies, and statistics,’popularised by Mark Twain. See also Michael Wheeler, Lies,
Damned Lies, and Statistics: The Manipulation of Public Opinion in America (W.W. Norton & Co. 1976).
16. In some countries, clear demarcations are made between the fields of criminal law and policing, on the one hand, and
intelligence and security services, on the other. Schlembach (n 12) 493-494; UK Home Office, Covert Human
Intelligence Sources (Criminal Conduct) Fact sheet (1 October 2020) 1
ment/uploads/system/uploads/attachment_data/file/920714/CHIS_Factsheet.pdf> accessed 28 November 2020;
Department of Justice Canada, ‘Fact sheet: Measures taken by Justice Canada to Address Practices in Warrant
Matters before the Federal Court of Canada’(16 July 2020)
fspwm-frpmm-eng.pdf> accessed 28 November 2020.
17. UK: CHIS Act (n 7); Canada: National Security Act, 2017, SC 2019, c 13; United States: Code, ss 509, 510 and 533
(‘Attorney General’s Guidelines Regarding the Use of Confidential Informants’)
guidelines.pdf> accessed 28 November 2020.
244 Netherlands Quarterly of Human Rights 39(3)
democratic society are less controversial, though issues may still arise in relation to ensuing crim-
inal proceedings. However, what of undercover agents who instigate violent tactics with the inten-
tion to curb criticism or provide pretext for State suppression of protest movements?
The secrecy inherent in these operations means one cannot point to statistics of when and how
often such agents are used, let alone the extent of the means employed. Moreover, since the issue
of agents provocateurs is primarily litigated when (individual) defendants invoke the defence of
entrapment, States can avoid embarrassing findings by withdrawing criminal charges before
adverse judgments have been handed down. This is all the more reason for recognising the
human rights angle urged in this article: if the victims of these tactics could contest their use
as a violation of freedom of expression –or ancillary rights –it would help to drive this
harmful practice from the shadows and address the broader impacts of this technique on public
discourse and democratic progress. Agents provocateurs tread on crucial rights to freedom of
expression (as well as others such as privacy, assembly and the right to a remedy) and raise a crit-
ical question: how much trust are we willing to place in governments to respect our right to criti-
cise, question and protest their (in)actions, where they act in secret and under the cover of
(legislated) legitimacy? The question is a live one in light of troubling incidents in Council of
Europe Member States, the United States and Canada. Several examples illustrate the nature
and nuance of the problem.
2.1. EUROPE
In perhaps the most notorious (and far-reaching) case, British police constable (PC) Mark Kennedy
was exposed as an undercover agent provocateur operating in environmentalist, anti-capitalist and
anti-fascist movements across Europe.
18
In 2009, more than one hundred environmental activists
were arrested in a ‘pre-emptive strike’against their alleged plot to take over a power station in
the UK.
19
Twenty activists were convicted of conspiracy to commit aggravated trespass.
20
However, the case against a further six activists subsequently imploded when it was revealed
that PC Kennedy had played a ‘central role in organising and paying for the invasion’.
21
In response
to defence requests for disclosure of classified documents about PC Kennedy’s role in organising
and funding the protest, prosecutors abandoned the criminal charges.
22
PC Kennedy is also alleged to have acted as an agent provocateur beyond the island’s shores in
protest movements in Ireland, Germany, Italy and Spain.
23
During an anti-capitalist protest in
18. Rob Evans and Paul Lewis, ‘Undercover officer spied on green activists’(The Guardian, 9 January 2011)
www.theguardian.com/uk/2011/jan/09/undercover-office-green-activists> accessed 30 April 2021.
19. Juliette Jowit and Matthew Taylor, ‘Police arrest 114 people in pre-emptive strike against environmental protesters’
(The Guardian, 13 April 2009)
environmental-campaigners> accessed 30 April 2021.
20. Paul Lewis and Nidhi Prakash, ‘Ratcliffe coal protesters spared jail sentences’(The Guardian, 5 January 2011)
www.theguardian.com/environment/2011/jan/05/ratcliffe-coal-protesters-sentence> accessed 30 April 2021.
21. Paul Lewis and Rob Evans, ‘Activists walk free as undercover officer prompts collapse of case’(The Guardian,10
January 2011) officer-mark-kennedy?
intcmp=239> accessed 30 April 2021.
22. Evans and Lewis (n 18).
23. Matthew Taylor and Paul Lewis, ‘Undercover police officer Mark Kennedy at centre of international row’The Guardian
(13 January 2011) accessed 30 April 2021.
This raises a further issue about whether PC Kennedy was operating at the behest of these other States, or under the
Pentney 245
Dublin in 2004, PC Kennedy ‘encouraged other activists to attack the police’.
24
In subsequent
years, he returned to Ireland and was alleged to have acted as a ‘trainer on a programme for anarch-
ist activists […] on civil disobedience’.
25
In Germany, PC Kennedy allegedly worked as an agent
provocateur within anti-fascist groups to ‘instigate actions together with them’
26
and in
anti-capitalist protests opposing G8 and G20 summits.
27
He was alleged to be working with the
German police.
28
Though the German government refused to answer parliamentary questions
put forward by a German MP concerning PC Kennedy’s role,
29
it subsequently asked that the
Undercover Policing Inquiry be extended to include covert operations by British agents in
Germany.
30
PC Kennedy was allegedly a member of the ‘National Public Order Intelligence Unit’tasked
with ‘monitor[ing] so-called domestic extremists’,
31
but the foregoing (publicised) instances
suggest he went well beyond infiltration and collection-gathering. Similar allegations have come
to light over the UK’s (formerly secret) Special Demonstration Squad (SDS), and the manipulation
of protest groups’formulation and delivery of their messaging. These cases illustrate the potential
impacts of agents provocateurs on freedom of expression, even where they do not resort to violence
or instigate criminal acts. Undercover police officer –and member of the SDS –Bob Lambert infil-
trated an environmentalist group and co-wrote an anti-McDonald’s pamphlet at the centre of a def-
amation case which made its way to the ECtHR, nearly bankrupting his victim in the process.
32
Another SDS member, Rick Gibson, worked his way up the ranks to become Joint National
Secretary of the ‘Troops Out Movement’–an organisation calling for the demilitarisation of
control of the British government outside its borders (raising an extraterritorial jurisdiction question). This is not
addressed in this article but warrants further study and attention.
24. Henry McDonald, ‘Mark Kennedy “took part in attack on Irish police officers at EU summit”’ (The Guardian,14
January 2011) protest> accessed
30 April 2021.
25. ibid.
26. Matthew Taylor, ‘Mark Kennedy row escalates as German politician steps in’(The Guardian, 12 January 2011)
www.theguardian.com/world/2011/jan/12/mark-kennedy-undercover-police> accessed 30 April 2021.
27. Helen Pidd and Paul Lewis, ‘MP in Germany says Mark Kennedy “trespassed”in Berlin activists’lives’(The Guardian,
10 January 2011) accessed 30
April 2021.
28. ibid.
29. ibid.
30. Philip Oltermann, ‘Germany asks UK to widen undercover policing inquiry’(The Guardian, 11 June 2016)
www.theguardian.com/uk-news/2016/jun/11/germany-asks-uk-to-widen-undercover-policing-inquiry-mark-kennedy>
accessed 30 April 2021. This request echoed a previous one made by the Scottish government: Rob Evans, ‘Push to
extend inquiry into police infiltration of campaigners to Scotland’(The Guardian, 20 December 2015)
guardian.com/uk-news/2015/dec/20/extend-inquiry-police-infiltration-campaigners-scotland-theresa-may> accessed 30
April 2021.
31. Evans and Lewis (n 18).
32. Steel and Morris v United Kingdom App no 68416/01 (ECHR, 15 February 2005) though the agent provocateur issue
was not addressed. Paul Lewis and Rob Evans, ‘McLibel leaflet was co-written by undercover police officer Bob
Lambert’(The Guardian, 21 June 2013) fl et-police-bob-
lambert-mcdonalds> accessed 30 April 2021; Paul Farrell and Rob Evans, ‘Undercover UK police spy apologises
after being tracked down by woman he deceived’(The Guardian, 9 March 2016)
2016/mar/09/undercover-uk-police-spy-apologises-after-being-tracked-down-by-woman-he-deceived> accessed 30
April 2021.
246 Netherlands Quarterly of Human Rights 39(3)
Northern Ireland.
33
His senior position afforded him the potential to ‘influence the direction of the
movement as a whole’.
34
British agents provocateurs have also gone digital: WikiLeaks documents revealed the use of
covert agents to infiltrate online communities (including online protesters), influence their commu-
nications and sow dissension to ‘control, infiltrate, manipulate, and warp online discourse’.
35
The
purpose of such ‘online covert ops’is starkly stated: using ‘online techniques to make something
happen in the real or cyber world’.
36
No doubt additional cases will come to light during the Inquiry, which continues to hear evi-
dence. But this is hardly a problem unique to the UK: to the contrary, agents provocateurs
operate in democracies (and backsliding democracies) elsewhere in Europe. In a 2008 interview
with Quotidiano Nazionale, Francesco Cossiga –former President and head of Italy’s secret
services –admitted to using agents provocateurs during his tenure and urged his successor
to infiltrate ongoing protest movements of teachers and students ‘with agents provocateurs
readytodoanything’.
37
His stated aim was to turn public sentiment against the movement
and provide pretext to violently suppress students demonstrating against governmental
budget cuts to education.
38
In his words, agents provocateurs helped ‘extinguish the flame
before the fire spreads’.
39
Similar allegations have arisen in neighbouring France over so-called ‘casseurs’or ‘organised
thugs’. During workers’protests in Paris in 1979, a scandal erupted when an undercover police
officer named Gérard Le Xuan was apprehended while breaking a storefront window. A represen-
tative of the trade union noted that such actions –by Le Xuan and others acting as agents provo-
cateurs –sought to ‘distort’the purpose of the protest ‘by relegating to the background the social
and human tragedy which targets the steel workers and their families’.
40
More recently, during the
‘Yellow Vest’protests, allegations abounded that undercover police officers had infiltrated the pro-
tests and ‘[taken] part in acts of vandalism during demonstrations in Paris with the goal of
33. Inquiry (n 4), Metropolitan Police, ‘N297 –Risk Assessment’6
HN297-Open-risk-assessment-from-the-MPS.pdf> accessed 28 November 2020.
34. Inquiry Opening Statements, Day 5 [16] James Scobie QC /www.slate.fr/story/29345/flics-casseurs-histoire>accessed 30 April 2021.
20201106-ucpi_opening_statements_transcript.pdf> accessed 28 April 2021.
35. Glenn Greenwald, ‘How Covert Agents Infiltrate the Internet to Manipulate, Deceive, and Destroy Reputations’
(The Intercept, 24 February 2014)
2020; Glenn Greenwald, ‘Exclusive: Snowden Docs Show UK Spies Attacked Anonymous, Hacker’(NBC News,4
February 2014) cnews.com/news/investigations/war-anonymous-british-spies-attacked-hackers-snowden-docs-
show-n21361> accessed 28 November 2020.
36. ibid.
37. Interview of Francesco Cossiga by Andrea Cangini, Quotidiano Nazionale. Quoted in Roberto Mancini, ‘Retribution
and revenge’(The Guardian, 24 November 2008)
comment> accessed 30 April 2021. A transcript of the interview is reproduced in Italian at oleot-
ta.com/2008/10/intervista-a-cossiga/> accessed 30 April 2021.
38. ibid. New York Times, ‘Students in Italy clash over education cuts’(New York Times, 29 October 2008)
mes.com/2008/10/29/world/europe/29iht-rome.4.17354341.html> accessed 28 November 2020.
39. Interview of Francesco Cossiga (n 37) [author’s own translation].
40. [Author’s own translation]. Le Monde, ‘M. Georges Séguy : une prevue irrefutable’[‘An irrefutable proof’]
(27 March 1979) ://www.lemonde.fr/archives/article/1979/03/27/m-georges-seguy-une-preuve-irrefuta-
ble_2768513_1819218.html> accessed 30 April 2021. See also Claude Picant, Le 23 mars1979: Une provocation poli-
tique (Jean Picollec 1981) ; Bastien Bonnefous, ‘Flics ou casseurs?’[‘Cops or thugs?’](Slate France, 28 October 2010)
Pentney 247
discrediting the movement’.
41
The police denied the claims, insisting that plain-clothes officers
merely collected information on the march’s movements, as is standard practice.
42
In Ukraine, there’s even a name for pro-government agents provocateurs –‘titushky’–though
their roles and the extent of their interference remain far from clear.
43
During the so-called
‘Euromaidan’movement nearly a decade ago, Ukrainian authorities were alleged to have used
agents provocateurs in the form of ‘paid instigators who infiltrate the protests and then start attack-
ing the police to provoke a “retaliatory”suppression of the “violent protesters”’.
44
In another
instance, the Security Service arrested a police officer and acknowledged that he was ‘among
other agents provocateurs who carried out a criminal scenario and were trying to disrupt the
Verkhovna Rada [Parliament] meeting and destabilize the situation in the capital’.
45
The officer
was said to have used a slingshot to shoot screws at journalists, protesters and police.
46
2.2. NORTH AMERICA
Across the Atlantic, agents provocateurs have been alleged to incite or engage in violence during pro-
tests,andtoinfiltrate activist networks with the intention of pushing them in the direction of violence.
In Canada, undercover police officers (wielding rocks) infiltrated a peaceful protest during a
North American leaders’summit in Quebec in 2007.
47
The peaceful protesters identified the offi-
cers as agents provocateurs, and demanded they put down their rocks and leave the demonstra-
tion.
48
Faced with damning video evidence of the events, the police force admitted that officers
had infiltrated the protest, but denied they were there to provoke the crowd or instigate violence.
49
41. Liselotte Mas, ‘Analysis of a rumour: Did undercover police try to discredit the “Yellow Vests”?’(The Observers,4
December 2018) ercover-police-france-yellow-
vests> accessed 30 April 2021.
42. ibid. Tweet by ‘Police nationale’(2 December 2018)
689728?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1069204012975689728%7Ctwgr%5E%
7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fobservers.france24.com%2Fen%2F20181204-analysis-rumour-
undercover-police-france-yellow-vests> accessed 30 April 2021.
43. ‘Ukraine crisis: Renewed Kiev assault on protesters’(BBC News, 19 February 2014)
world-europe-26252679> accessed 30 April 2021.
44. Anton Shekhovstov, ‘Provoking the Euromaidan’(OpenDemocracy, 3 December 2013)
net/en/odr/provoking-euromaidan/> accessed 30 April 2021. However, certain reports suggest that the titushky were
engaged by senior government officials to attack protesters, and were provided assault rifles for this purpose: see
Office of the High Commissioner for Human Rights, ‘Report on the human rights situation in Ukraine,’A/HRC/37/
CRP.1 (15 March 2018) [51].
45. Oleg Sukhov, ‘Police officer, suspected of being agent provocateurs during Rada clashes, is arrested’(Kyiv Post,15
October 2014) ficer-accused-of-being-agent-
provocateur-during-rada-clashes-368142.html> accessed 30 April 2021.
46. ibid.
47. Canadian Press, ‘Police accused of using provocateurs at summit’(Toronto Star, 21 August 2007)
news/2007/08/21/police_accused_of_using_provocateurs_at_summit.html> accessed 6 October 2020; Joan Bryden,
‘Police deny using “provocateurs”at summit’(Toronto Star, 22 August 2007)
police_deny_using_39provocateurs39_at_summit.html> accessed 28 November 2020.
48. Video footage of the confrontation is available via CanadiansNanaimo’s YouTube
v=St1-WTc1kow> accessed 6 October 2020.
49. CBC News, ‘Quebec police admit they went undercover at Montebello protest’(CBC News, 23 August 2007)
October 2020.
248 Netherlands Quarterly of Human Rights 39(3)
In the United States, a senator testified before a Commission of Inquiry that in his experience pros-
ecuting labour activists, government spies would infiltrate trade unions and ‘try to get decent union
men to commit some crime’.
50
More recently, allegations circulated that undercover police officers
were responsible for instigating violence and damaging property during Black Lives Matter protests
across the country.
51
2.3. THE NATURE AND SCALE OF THE PROBLEM
These examples –from Europe and North America –illustrate the insidiousness of the problem, and
the dangers of State interference with the formulation, content and expression of activists’and dis-
sidents’messaging. They also demonstrate the varied nature of the interference: in some cases,
agents provocateurs attended protests and sought to incite violence in order to justify State suppres-
sion; in others, undercover police officers played the ‘long con’,infiltrating activist groups and
rising through the ranks, affording them the opportunity to exert control over the groups’direction
and messaging. While the focus of this article, and the Article 10 ECHR analysis to follow, is on the
first category –those agents provocateurs who cause an offence to be committed –the latter cat-
egory of infiltration, control and manipulation of the movement and messaging merits further
consideration.
Afinal note on these case studies is warranted. Though some State officials admitted the use of
agents provocateurs in activist networks, as in Italy and the US, the majority remain alleged cases
for which the respective States have not had to answer. The secrecy inherent in these operations
means that they are often easily dismissed by governments and police forces as ‘fake news’or side-
stepped through the withdrawal of criminal charges against activists to avoid disclosure.
Determining whether such operations comply with States’human rights obligations is not a task
which should be left to governments alone: to the contrary, judicial oversight is greatly needed
to ensure that appropriate safeguards are in place.
The next section examines how the ECtHR has addressed cases of agents provocateurs in the
context of incitement cases under Article 6, before describing how the Court can and should con-
ceive of this form of government interference with freedom of expression. While the ensuing ana-
American examples provided above –similar obligations arise under Article 19 of the International
Covenant on Civil and Political Rights. Accordingly, the UN Human Rights Committee may take a
similar position on the matter were such a communication to come before it.
50. Marx (n 1) 419, citing Leo Huberman, Labor Spy (Modern Age 1937) 96–7. See also the case study concerning the
American response to the ‘Republic of New Africa’protest organization in Christian Davenport, ‘Understanding
Covert Repressive Activity: The Case of the U.S. Government Against the Republic of New Africa’(2005) 49(1)
Journal of Conflict Resolution 120, 127–129. This concern was repeatedly cited by Labour Parliamentarians prior to
the passage of the CHIS Act, in light of its authorisation of criminal conduct where necessary ‘in the interests of the
economic well-being of the United Kingdom’: CHIS Act (n 7) s 1(5)(5). See LabourList, ‘Unions, MPs and campaigners
release joint statement on CHIS “spycops”bill’(13 October 2020)
joint-statement-by-unions-mps-and-campaigners-on-chis-spycops-bill/> accessed 28 November 2020.
51. ArLuther Lee, ‘Police deny link to mysterious “Umbrella Man,”who broke windows during riot’(The Atlanta
Journal-Constitution, 5 June 2020)
windows-during-riot/3j8cSrRBHjvnvX0PRwIYIP/> accessed 28 November 2020. Some have already been debunked:
see Ali Swenson et al,‘NOT REAL NEWS: A Look at What Didn’t Happen This Week’(Associated Press, 29 May
2020) accessed 28 November 2020.
Pentney 249
3. AGENTS PROVOCATEURS UNDER THE ECHR: FOOTHOLDS IN
THE JURISPRUDENCE
To date, the ECtHR has only considered agents provocateurs under Article 6 of the ECHR, in rela-
tion to undercover investigative techniques and the fairness of ensuing criminal proceedings.
52
This
case law has focused at an individual level –namely, whether a defendant was incited to commit a
criminal offence by an undercover officer, and what use can be made of any evidence obtained in
securing a conviction.
53
Moreover, the cases have largely arisen in the context of covert operations
targeting serious crimes –suspected drug trafficking, corruption and terrorism.
54
While these are admittedly very different circumstances, there are several takeaways from the
Court’s analysis which are noteworthy for present purposes. The first is the Court’sdefinition of
incitement:
Police incitement occurs where the officers involved –whether members of the security forces or
persons acting on their instructions –do not confine themselves to investigating criminal activity in
an essentially passive manner, but exert such an influence on the subject as to incite the commission
of an offence that would otherwise not have been committed, in order to make it possible to establish
the offence, that is, to provide evidence and institute a prosecution.
55
This definition is also applicable in the context of agents provocateurs operating in protest
movements, where they move beyond ‘essentially passive’investigations into inciting violence
and criminality. As the Court has made clear in the Article 6 context, the authorities’intention is
a critical component: in the incitement context, it is to cause an offence to be committed in
order to lay criminal charges; in the protest context, the intention may be to undermine the
group itself, alter the formulation and/or delivery of its message, or provide pretext for State
suppression.
Second, although the Court has accepted the use of undercover agents as a ‘legitimate investi-
gative technique for investigating serious crimes,’it has required that ‘adequate safeguards against
abuse be provided for, as the public interest cannot justify the use of evidence obtained as a result of
police incitement’.
56
This includes a searching judicial inquiry where criminal charges are laid and
evidence obtained in the course of such operations is put forward to secure a conviction.
57
Finally, the Court has repeatedly held that the burden of proof where incitement is alleged rests
with the State.
58
This onus reflects the inequality of arms where ‘operational information’is
squarely within the knowledge of the State, and must be viewed in light of the trial court’s obliga-
tion to ‘take the necessary steps to uncover the truth’.
59
52. Lagutin and others v Russia App nos 6228/09 and others (ECHR, 24 April 2014) [107]; Murtazaliyeva v Russia App no
36658/05 (ECHR, 18 December 2018) [157].
53. ibid. See also Bannikova v Russia, App no 18757/06 (ECHR, 4 November 2010) [33-65]; Ramanauskas v Lithuania
App no 74420/01 (ECHR, 5 February 2008) [48-74].
54. Bannikova (n 53); Ramanauskas (n 53); Miliniene v Lithuania App no 74355/01 (ECHR, 24 June 2008).
55. Ramanauskas (n 53) [55]; Bannikova (n 53) [37].
56. Teixeira Castro v Portugal App no 25829/94 (ECHR, 9 June 1998) [34-36]; Lagutin (n 52) [90].
57. Lagutin (n 52) [90].
58. ibid [94]; Bannikova (n 53) [48]; Ramanauskas (n 53) [70].
59. Lagutin (n 52) [120-122].
250 Netherlands Quarterly of Human Rights 39(3)
The Court has yet to consider whether the use of agents provocateurs may infringe freedom of
expression under Article 10 where they are used to undermine protesters and activist movements
critical of the State. However, there are several strands of the Court’s jurisprudence which
provide guidance on how it might characterise the use of agents provocateurs from the perspective
of freedom of expression.
First, the Court has repeatedly emphasised the importance of freedom of expression as an essen-
tial foundation of –and basic condition for –democratic progress.
60
As a result, there is little scope
for restrictions of freedom of expression where they relate to either political speech or debate on
matters of public interest.
61
Moreover, the limits of permissible criticism are wider in respect of
the government than private citizens, as democratic systems must allow for close scrutiny of gov-
ernments’actions or omissions and government restraint in seeking to limit or stifle such criticism is
accordingly required.
62
Second, the Court has noted that interference in protests ‘[does] a disservice to democracy and
often even endanger[s] it’.
63
Outright bans on protests or demonstrations are not permitted, absent a
real risk that they will result in disorder which cannot be prevented by other (lesser) means.
64
In
addition, the utmost caution is required where measures ‘are such as to dissuade […] persons
from imparting information or ideas contesting the established order of things’.
65
Care must
always be taken to ensure that freedom of expression is not subject to the ‘heckler’s veto,’
whereby limits are determined by the audience’s response.
66
Such are the demands of democracy
and pluralism.
Finally, the Court’s pronouncements on States’positive obligations under Article 10 must be
borne in mind.
67
heritage as well as a dangerous instrument’in light of the ‘powerful influence the modern media of
expression exerted upon the minds of men’.
68
In the decades since, the ECtHR has rendered thou-
sands of judgments on how governments control this ‘dangerous instrument’, by limiting or sup-
pressing expression through censorship or other means. More recently, the Court has moved
beyond censorship to consider the contours of States’positive obligations to facilitate expression
through action or inaction, as the circumstances warrant. In particular, the Court has recognised
60. Handyside v United Kingdom App no 5493/72 (ECHR, 7 December 1976) [49].
61. Lindon, Otchakovsky-Laurs and July v France App nos 21279/02 and 36448/02 (ECHR, 22 October 2007) [46]; Axel
Springer AG v Germany App no 39954/08 (ECHR, 7 February 2012) [90]; Bédat v Switzerland App no 56925/08
(ECHR, 29 March 2016) [49].
62. Castells v Spain App no 11798/85 (ECHR, 23 April 1992) [46]; Sürek v Turkey (no 1) App no 26682/95 (ECHR, 8 July
1999) [61].
63. Taranenko v Russia App no 19554/05 (ECHR, 15 May 2014) [67] [70]. See also Ronan Fathaigh and Dirk Voorhoof,
‘Article 10 ECHR and Expressive Conduct’(2019) 24(2) Communications Law 62-73.
64. Kablis v Russia, App nos 48310/16 and 59663/17 (ECHR, 30 April 2019) [54] interpreting art 11(2) ECHR.
65. Taranenko (n 63) [81] citing Women on Waves and others v Portugal App no 31276/05 (ECHR, 3 February 2009)
[39, 43].
66. Vajnai v Hungary App no 33629/06 (ECHR, 8 July 2008) [57]; Fáber v Hungary App no 40721/08 (ECHR, 24 July
2012) [57].
67. For a comprehensive analysis of States’positive obligations, see Tarlach McGonagle, ‘Positive obligations concerning
freedom of expression: mere potential or real power?’in Onur Andreotti (ed), Journalism at risk: Threats, challenges
and perspectives (Council of Europe Publishing 2015) 9
DisplayDCTMContent?documentId=0900001680706afe> accessed 30 April 2021.
68. Council of Europe Travaux Préparatoires,‘European Commission of Human Rights Preparatory Work on Article 10 of
the European Convention on Human Rights,’Council of Europe Library (Strasbourg 17 August 1956) [127].
Pentney 251
that Article 10 does not merely impose negative obligations on High Contracting Parties to refrain
from conduct which undermines the right; it also imposes certain positive obligations to ensure the
‘genuine and effective exercise’of the right.
69
States are thus obliged to ‘create a favourable envir-
onment for participation in public debate […] to enable the expression of ideas and opinions
without fear’.
70
This is a critical shift, as States can cause just as much harm to public discourse
and debate by infiltrating and undermining protest groups as by censoring or banning them.
How, then, should the Court approach the permissibility of agents provocateurs –like those in
the examples provided above –from the perspective of Article 10?
4. FROM THE SHADOWS TO THE COURTS: THE ANALYSIS
UNDER ARTICLE 10
In order to establish a violation of Article 10, it must be established, first, that agents provocateurs
constitute an interference with freedom of expression, and second, that the interference is not per-
missible under Article 10(2). An interference can only be justified under Article 10(2) where the
State establishes three (cumulative) components: the interference was prescribed by law, pursued
a legitimate aim, and was necessary in a democratic society.
71
Based on its jurisprudence in the context of agents provocateurs under Article 6 ECHR, the
Court should find that agents provocateurs interfere with freedom of expression where they
move beyond ‘essentially passive’investigations to incite or encourage violence.
72
As a starting
point, the Court has held that an interference with freedom of expression (or peaceful assembly)
‘does not need to amount to an outright ban, legal or de facto, but can consist in various other mea-
sures taken by the authorities’.
73
Such ‘other measures’include withholding information necessary
for public debate
74
and withholding appointments of public officials who express critical views.
75
The use of agents provocateurs falls within these ‘other measures’shy of an outright ban: where
they turn protests violent as pretext to suppress them, they have effectively prohibited activists
from expressing themselves and caused a chilling effect which undermines the groups’ability to
formulate and deliver their message.
76
Indeed, the mere idea of police surveillance and infiltration
within a political movement ‘may lead to feelings of demoralization, helplessness, cynicism and
immobilizing paranoia, and can serve to disintegrate a movement’.
77
69. Palomo Sánchez and others v Spain App nos 28955/06 and others (ECHR, 12 September 2011) [58, 62]; Dink v Turkey
App nos 2668/07 and others (ECHR, 14 September 2010) [137] [translation].
70. Dink (n 69) [137] [author’s own translation].
71. ECHR (n 9) Art 10(2).
72. Lagutin (n 52) [107]; Murtazaliyeva (n 52) [157].
73. Karastelev and others v Russia App no 16435/10 (ECHR, 6 October 2020) [70].
74. See eg Magyar Helsinki Bizottság v Hungary App no 18030/11 (ECHR, 8 November 2016) [155-70]; Társaság a
Szabadságjogokért v Hungary App no 37374/05 (ECHR, 14 April 2009) [36]; Centre for Democracy and the Rule
of Law v Ukraine App no 10090/16 (ECHR, 26 March 2020) [87].
75. Wille v Liechtenstein App no 28396/95 (ECHR, 28 October 1999) [50-51].
76. See eg Lingens v Austria App no 9815/82 (ECHR, 8 July 1986) [44] wherein the Court noted that although a penalty
imposed on a journalist ‘did not strictly speaking prevent him from expressing himself, it nonetheless amounted to a kind
of censure, which would be likely to discourage him from making criticisms of that kind again in future. […] In the
context of political debate such a sentence would be likely to deter journalists from contributing to public discussion
of issues affecting the life of the community’.
77. Marx (n 1) 428.
252 Netherlands Quarterly of Human Rights 39(3)
In sum, there may be two components to the interference posed by agent provocateurs. First,
agents provocateurs may interfere with the formulation and content of activists’expression. In
the examples provided, agents provocateurs infiltrated and undermined protests by teachers and
students, peaceful demonstrations over free trade, environmentalist networks across Europe,
workers’rights organisations and protests for racial justice. In each case, the government sought
to undermine the curation of expression and the value of the protesters’speech –from planning
and funding criminal trespass, to turning peaceful protests about free-trade and educational
reform violent, to infiltrating trade unions and encouraging ‘decent men’to commit crimes.
78
Far from allowing expression to flourish, agents provocateurs frustrate the processes that
freedom of expression is meant to protect: individuals and groups in democratic society challenging
the status quo, asking difficult questions, and promoting awareness of matters of public interest. In
essence, they are attempting to enforce or engender silence and/or alter the narrative.
79
Significant
scrutiny should be brought to bear on measures which dissuade the open and meaningful exchange
of information and ideas, and if the Court were confronted with such a case, it ought to take a dim
view of democratic governments intentionally thwarting lawful speech.
80
Second, agents provocateurs may interfere with the way the expression is received by the public,
thereby lessening the quality of activists’expression. The perception of social movements is often tarn-
ished whenprotests turn violent, as the discourse surrounding the BlackLives Matter protests in the US
illuminated. As Professor Gary Marx noted, agents provocateurs ‘can serve to stigmatize the move-
ment as violent, alienate it from its potential constituency, and focus attention away from the basic
issues’.
81
This is precisely the government’s intention –in Cossiga’s words, to turn popular consensus
against the protesters, and ‘extinguish the flame before the fire spreads’.
82
While less tangible than
overt censorship, the use of agents provocateurs is contrary to the spirit and intent of Article 10
and the public’s right to be ‘properly informed’.
83
A State interferes with this right where it surrepti-
tiously distorts and manipulates a protest movement’s message, for Article 10 ‘protects not only the
substance of the ideas and information expressed but also the form in which they were conveyed’.
84
With the interference established, the analysis turns to whether it can be justified under Article
10(2). As a starting point, States have a margin of appreciation to determine where limitations on
expression may be necessary, because domestic authorities are better placed to make this determin-
ation.
85
However, this margin is narrower where –as here –the contents of the speech concern indi-
vidual (political) expressions, the information is in the public interest,
86
and the object of the speech
is (criticism of) the government.
87
Moreover, the nature of the restriction is the distortion of the
formulation and contents of the expression and the suppression of protesters’rights to assembly
78. Steel and Morris (n 32); Lewis and Evans (n 32); Farrell and Evans (n 32); CBC News (n 49); Marx (n 1) 419.
79. This notion of ‘enforced silence’is drawn from Justice Brandeis (concurring) in Whitney v California 274 US 357, 377
(1927). See Philip M. Napoli, ‘What if More Speech is No Longer the Solution: First Amendment Theory Meets Fake
News and Filter Bubble’(2018) 70(1) Federal Communications Law Journal 60.
80. Taranenko (n 63) [81] citing Women on Waves (n 65) [39, 43].
81. Marx (n 1) 429.
82. Interview of Francesco Cossiga (n 37) [author’s own translation].
83. Sunday Times v UK (no 1) App no 6538/74 (ECHR, 26 April 1979) [66].
84. Murat Vural v Turkey App no 9540/07 (ECHR, 21 October 2014) [44]; Women on Waves (n 65) [39].
85. Handyside (n 60) [49].
86. Éva Molnár v Hungary App no 10346/05 (ECHR, 7 October 2008) [42]; Sunday Times (no 1) (n 83) [65].
87. Castells (n 62) [46].
Pentney 253
and expression –often by violent means. As a result, States are entitled to a narrow margin of appre-
ciation with respect to the restriction.
The Court’s jurisprudence suggests that, even where the use of agents provocateurs is pre-
scribed by law (as the CHIS Act purports to do, for instance), it should fail at both the ‘legitimate
aim’and ‘necessity in a democratic society’stages. The aim pursued by government infiltration
of movements to turn them violent, undermine public perception, and justify State suppression
can only be said to be the limitation of criticism and dissent, which is neither legitimate nor
necessary for democratic society. Unlike censorship or banned protests, which may be permis-
sible in some instances in the interests of national security or the prevention of disorder,
88
it is
decidedly more difficult to conceive of legitimate aims for agents provocateurs in the case
studies above, which aimed to provoke violence and stoke public disorder. Public authorities
may use police and other means to monitor demonstrations and protect the peaceful assembly
and expression of protesters. They may also undertake secret surveillance, or infiltrate move-
ments to monitor their actions in certain circumstances.
89
However, the Court has recognised
the need for safeguards as operations ‘set up to protect national security may undermine or
even destroy democracy under the cloak of defending it’.
90
Agents like those in the above-noted case studies cannot be said to be necessary in a democratic
society. The circumstances must be borne in mind: the targets of these operations were environmen-
talists, advocates for racial justice, trade unions and anti-fascists. These were not operations akin to
those which target criminal organisations or terrorist networks. The purpose was not merely
‘passive’collection of information, but active efforts to affect the formulation and delivery of
these movements’messages –and the way their messages were received by the public –by
nudging them towards violence. The pre-emptive silencing of criticism and dissent in such circum-
stances cannot be said to meet a ‘pressing social need’. Importantly, the necessity criterion is par-
ticularly rigorous where, as here, the interference is a form of prior censorship.
91
In any case, the means used must be proportionate to the aim pursued.
92
The Court has found a
violation of Article 10 where police arrested and detained disruptive (but otherwise peaceful) pro-
testers, on the basis that the protest ‘could have been countered by less draconian measures’.
93
Similar reasoning applies here: even if the agents are pursuing the legitimate aim of preventing dis-
order or crime, surely there are more proportionate ways of doing so than instigating or inciting
violence or criminality by activists. The Court’s case law on secret surveillance and undercover
operations, summarised previously, is particularly instructive in this regard: though such techniques
may be used, they do not provide carte blanche for States, even in cases where the ends sought to be
achieved might appear to justify the means States seek to employ.
Agents provocateurs also violate States’positive obligations with respect to freedom of expres-
sion.
94
The Court has recognised that Article 10 does not merely impose negative obligations on
88. See eg Sürek (n 62) [51]; Women on Waves (n 65) [35].
89. Lagutin (n 52) [107]; Murtazaliyeva (n 52) [157]; Big Brother Watch and others v United Kingdom App nos 58170/13
and others (ECHR, 13 September 2018) [489]; Weber and Saravia v Germany App no 54934/00 (ECHR, 29 June 2006)
[151].
90. Big Brother Watch (n 89) [308].
91. Sunday Times v UK (no 2) App no 13166/87 (ECHR, 26 November 1991) [51]; RTBF v Belgium App no 50084/06
(ECHR, 29 March 2011) [114].
92. Lagutin (n 52) [107].
93. Açik and others v Turkey App no 31451/03 (ECHR, 13 January 2009) [46].
94. Dink (n 69) [137].
254 Netherlands Quarterly of Human Rights 39(3)
High Contracting Parties to refrain from conduct which undermines the right –it also imposes
certain positive obligations to ensure the ‘genuine and effective exercise’of the right.
95
As
noted above, the positive obligation arising under Article 10 requires that States ‘create a favourable
environment for participation in public debate […] to enable the expression of ideas and opinions
without fear’.
96
Far from fostering an environment for discourse to flourish, the agents provoca-
teurs in the examples from Europe (and North America) sought, inter alia, to frustrate and
distort, manipulate and mislead, stigmatise and suppress –thereby undermining protesters’right
to disseminate their message, and the public’s right to receive it. In this sense, the use of agents
provocateurs is government interference in a more insidious and surreptitious, but no less dam-
aging, form than long-recognised violations such as censorship.
97
Two broader points which ought to inform the Court’s analysis are warranted: the first concerns
the individual repercussions for activists targeted by agents provocateurs, while the second relates
to the ‘chilling effect’on the activist group and movement.
98
First, the use of agents provocateurs may not only violate Article 10, but also limit individuals’
rights to claim Convention protections. The Convention does not extend to protests where the orga-
nisers and protesters have ‘violent intentions’.
99
As a result, where agents provocateurs succeed in
turning protests violent, they have effectively stripped protesters of Convention protections.
100
This
reveals the insidious and damaging nature of this form of interference, and its repercussions for
activist groups and their individual members.
Second, existing remedies –including entrapment defences –are no answer to the broader
implicationsand chilling effects of agents provocateurs on political and social activism, and on dem-
ocracy itself. While an individual may succeed in arguing for an acquittal on account of
the interventions of an undercover agent –or the State may decide to withdraw charges to avoid dis-
closure, as in the case of the British environmental activists referred to previously –the long-term
damage to the survival, work and reputation of the activist group is much harder to rectify.
101
The
democratic project survives and thrives on all of the elements that make up peaceful protest: formu-
lating ideas, expressing outrage, questioning and criticising majoritarian views and mainstream
beliefs, ‘speaking truth to power’. State efforts to frustrate or undermine these processes with
agents provocateurs can and should be labelled violations of freedom of expr ession.
95. The ‘positive obligation’conceptualisation originated in Marckx v Belgium App no 6833/74 (ECHR, 13 June 1979)
[31] under art 8 ECHR. With respect to art 10, see Palomo Sánchez (n 69) [58, 62]; Dink (n 69) [137] [translation].
96. Dink (n 69) [137] [translation].
97. See Scott Rutherford, ‘Canada’s Other Red Scare: Rights, Decolonization, and Indigenous Politics in the Global
Sixties’(DPhil Thesis, Queen’s University 2011) concerning the long-term destabilising impacts of agents provoca-
teurs on protest movements and Indigenous politics in Canada.
98. Taranenko (n 63) [95]; Cumpana and Mazare v Romania App no 33348/96 (ECHR, 17 December 2004) [114] wherein
the Court noted that the chilling effect ‘works to the detriment of society as a whole’.
99. Taranenko (n 63) [66-67].
100. The Court’s (burgeoning) case law on art 18 ECHR may also be relevant, if the authorities can be shown to have acted
with an ‘ulterior purpose’in subjecting protesters to criminal and other sanctions, particularly againsta backdrop of law
enforcement targeting opposition groups or protest movements. See Khadija Ismayilova v Azerbaijan (no 2) App no
30778/15 (ECHR, 27 February 2020) [119]; Merabishvili v Georgia App no 72508/13 (ECHR, 28 November 2017)
[264-283] [309]; Ibrahimov and Mammadov v Azerbaijan App nos 63571/16 and others (ECHR, 13 February 2020)
[153].
101. Griffin (n 12) outlines the (overlapping) effects on environmental activists and their networks as a result of ‘spycops’–
including activists reporting a fractured reality, being diverted away from their advocacy, and theloss of bonds of trust
between and among activists [7-13].
Pentney 255
5. CONCLUSION
In his long-awaited report concerning the British government’s investigatory powers, David
Anderson QC surmised that the polarised nature of the debates surrounding government
surveillance boils down to ‘a question of trust’.
102
This description applies with equal force to
agents provocateurs. But beyond the propriety of such techniques, or the trust society is willing
to place in its government, the legality of agents provocateurs deserves greater attention and
debate. This includes whether they constitute a violation of freedom of expression under Article
10 of the ECHR.
This article offered examples of (alleged and admitted) agents provocateurs operating in Europe
and North America. Public inquiries and admissions by individuals involved suggest the significant
scale of these operations, and their frequent targets: trade unions, environmental activists, anti-war
protesters, advocates for racial justice. Existing footholds in the jurisprudence of the ECtHR framed
the analysis of how such agents should be conceived. In particular, the Court has been clear that
outright bans on protests or demonstrations are impermissible absent a real risk of disorder that
less intrusive means cannot address. Similarly, the Court has viewed with significant scorn mea-
sures designed to dissuade individuals from speaking truth to power or challenging the status
quo. The agents provocateurs in the examples provided sought to silence or suppress activists
doing just that.
Freedom of expression demands not only that individuals be free to impart their information and
ideas; it also enshrines the public’s corresponding right to receive them. Agents provocateurs illus-
trate that governments can violate Article 10 when they set out to meddle in the ‘marketplace of
ideas’by impeding the process and contents of expression.
103
Freedom of expression is not only
the right to speak, but the right to calibrate, craft and convey one’s message free from undue gov-
ernment interference. A government that significantly alters how one is heard may violate the right
to freedom of expression.
In the final section, the article suggested a line of analysis for whether such interference could be
justified under Article 10(2). The margin of appreciation afforded to States should be narrowly cir-
cumscribed in light of the individual (political) contents of the targeted speech, the public interest of
the information and ideas at issue, and the object of the speech (criticism of government). Though
the analysis would turn on the facts and argument in the individual case, it is difficult to conceive
that the Court would find that agents provocateurs meet the three-pronged requirements, particu-
larly necessity in a democratic society.
The article also highlighted the potential afforded by the Court’s jurisprudence concerning
States’positive obligations in respect of expression. Limiting or suppressing communication
through censorship is only one of the roles governments play in communicative processes, yet it
has dominated academic scholarship and ECtHR jurisprudence. For the right to freedom of expres-
sion to be genuine and meaningful, States’conduct in facilitating and enabling expression must
also be scrutinised. Further research and study in this area –including how it relates to infiltration,
control and manipulation by State authorities of protest movements and their messaging, and the
safeguards necessary to ensure protection of freedom of expression –is warranted.
102. A Question of Trust: Report of the Investigatory Powers Review, David Anderson QC (Independent Reviewer of
Terrorism Legislation, June 2015)
2015/06/IPR-Report-Print-Version.pdf> accessed 28 April 2021.
103. Mouvement Raëlien Suisse (n 14) Dissenting opinion of Judge Pinto de Albuquerque.
256 Netherlands Quarterly of Human Rights 39(3)
The use of undercover operatives raises complex questions concerning the proper line to be
drawn between protecting national security interests and public order on the one hand and respect-
ing and fulfilling human rights obligations on the other. The ends achieved by undercover agents –
foiling terrorist plots and keeping guns off the streets –should not be ignored; but neither should
those ends be used to justify any and all means, at the expense of rights long recognised. Greater
attention ought to be paid to how the balancing of rights and interests should be done in concrete
terms, and how far States are permitted to go in committing –or instigating –criminal activity, in
nudging democratic discourse towards violence. States can and do exercise their power in any
number of ways; but they ought not be allowed to do in secret what would not be permitted in
the light of day. The use of agents provocateurs goes to the heart of what the public ought to be
able to expect from its government. A question of trust, indeed.
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication
of this article.
Funding
The author received no financial support for the research, authorship and/or publication of this article.
ORCID iD
Katie Pentney https://orcid.org/0000-0003-1006-7447
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