Truth on Trial: Law, Memory and Freedom of Expression in Europe

Document

Cited authorities 2

Cited in

Author	Poorna Mishra

TruthonTrial:Law,Memory,andFreedom

ofExpressioninEurope



ByPoornaMishra*



Thisarticlearguesthat‘memorylaws’,lawsthat

criminalisespeechactsthatnegatecertainhistorical

atrocities,conflictwiththerighttofreedomof

expressionassetoutintheInternationalCovenant

onCivilandPoliticalRights(ICCPR)andthe

EuropeanConventiononHumanRights(ECHR).

Theapproachesemployedbythegoverningbodiesof

thesetreatiesareexamined,andacaseismadefora

purelycontext‐basedassessmentwhenconsidering

theimpugnedspeechact,wherethenecessity

principlegoverns.TheguillotineeffectofArticle17

oftheECHRisproblematicasitremovesany

contextualanalysisofwhetherrestrictingthespeech

actinquestionisinfact‘necessary’.TheEuropean

CourtofHumanRights(ECtHR)shouldmovecloser

towardstheapproachoftheHumanRights

Committee(HRC),wherealimitationjustifiedonthe

basisofcontentmustalsocomplywiththenecessity

principle.Itisfurtherarguedthatgenericincitement

lawsarebetterequippedindealingwithextreme

speech,astheycanfacilitateamoremeaningful

analysisofthe‘likelihoodofharm’.Moreover,

legislatingonhistoricalmemorypersecarrieswithit

publicdiplomacyconcerns.Theslipperyslopeeffect

isevidencedintheEUFrameworkDecisionon

CombatingRacismandXenophobia(EUFramework

Decision),whichpavedthewayfornewmemory

72SLJ5(1)



lawsconcerningstill‐debatedatrocities.Thetaskof

preservinghistoricalmemoryshouldultimatelyliein

non‐legislativemeasures.



Introduction



‘Sticksandstonesmaybreakmybones

Butwordswillneverhurtme.’



Thisoldadage,generallyconfinedtochildren’splaygrounds,

isusedtoencouragethevictimofname‐callingorbullyingto

ignorethetauntandremaincalmandgood‐natured.Its

presenceinapaperaboutlaw,genocidedenial,andfreedom

ofexpressionmaybesurprising,giventhecontextinwhichit

isusuallyheard.However,theverseʹsbasicnotion,thatone

shouldriseaboveverbalinsultsandabuse,isonethatis

relevanttoanydiscussioninvolvingthelimitsoffreespeech.

Words,asweknow,cananddocauseharm,andthisis

essentiallywhylegislationdealingwithnegationistspeech

exists.Someideasareconsideredsopernicious,soabhorrent,

thatthemerefactofutteringthemisjudgedtobepunishable.

Europeanstatesareincreasinglyturningtocriminallaw

sanctionsinthecourseofdeterringthedisseminationofsuch

ideasandtherebypreservingthecollectivememoryofa

society.Germany,France,andSpainarejustthreeamong

severalcountries,whichnowhavesomeformof‘memory

laws’‐nationalcriminallawsagainstthenegationismof

certainhistoricalfacts–inplace.1

*PoornaMishraiscurrentlyworkinginDigitalRightsata

London‐basedonlinemediacompany.SheholdsanLLMfrom

theUniversityofLondonSOAS.

TruthonTrial73





TheadoptionofsuchmemorylawsacrossEuropehas

sparkedbothacademicandpoliticaldiscussionastothe

interplaybetweenlaw,history,andhumanrights.Lawcan

besaidtohave‘shapedhistoricalmemory’2,particularlyin

thecontextofmodernconstitutions,whichstandlargely‘as

responsestothearrivaloroverthrowofsome…imperial

power’3andareeffectively‘codifiedmemoriesofan

overthrownpast’.4Inthisregard,lawandhistoryare,and

alwayshavebeen,inseparable.



Memorylawsarebuta‘recentsubsetofthefarbroader,age‐

oldcategoryoflawaffectinghistoricalmemory’.5Here,lawis

essentiallybeingusedtoaddwhatHeinzeterms‘expressive

weight’6;thelevelofopportunityaffordedtoanopiniontobe

1Statesbanningdenialofawiderclassofcrimes:Spain(Penal

Code,Art607(2)againstgenocides’justification),Luxembourg

(PenalCode,Art457‐3targetingHolocaustandother

genocides),Liechtenstein(PenalCode,Section283(1)(5),

genocideandothercrimesagainsthumanity),Switzerland

(PenalCode,Art261bis(4),genocideandcrimesagainst

humanity),Malta(PenalCode,Art83B,genocide,crimes

againsthumanityandwarcrimes),Slovenia(PenalCode,Art

297,genocide,crimesagainsthumanityandwarcrimes)and

Latvia(PenalCode,Art74.1,genocide,crimesagainst

humanity,crimesagainstpeaceandwarcrimes).

2EricHeinze,‘Beyond“MemoryLaws”:TowardsaGeneral

TheoryofLawandHistoricalDiscourse’inUladzislau

Belavusau&AleksandraGliszczyńska‐Grabias(eds),Lawand

Memory:AddressingHistoricalInjusticebyLaw(Cambridge

UniversityPress,forthcoming).

3Ibid4.

4Ibid4.

5Ibid3.

6Ibid.

To continue reading

Request your trial

Subscribers can access the reported version of this case.

You can sign up for a trial and make the most of our service including these benefits.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see a list of all the cited cases and legislation of a document.

You can sign up for a trial and make the most of our service including these benefits.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see a list of all the documents that have cited the case.

You can sign up for a trial and make the most of our service including these benefits.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see the revised versions of legislation with amendments.

You can sign up for a trial and make the most of our service including these benefits.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see any amendments made to the case.

You can sign up for a trial and make the most of our service including these benefits.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see a visualisation of a case and its relationships to other cases. An alternative to lists of cases, the Precedent Map makes it easier to establish which ones may be of most relevance to your research and prioritise further reading. You also get a useful overview of how the case was received.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Subscribers are able to see the list of results connected to your document through the topics and citations Vincent found.

You can sign up for a trial and make the most of our service including these benefits.

Request your trial

Why Sign-up to vLex?

Over 100 Countries

Search over 120 million documents from over 100 countries including primary and secondary collections of legislation, case law, regulations, practical law, news, forms and contracts, books, journals, and more.
Thousands of Data Sources

Updated daily, vLex brings together legal information from over 750 publishing partners, providing access to over 2,500 legal and news sources from the world’s leading publishers.
Find What You Need, Quickly

Advanced A.I. technology developed exclusively by vLex editorially enriches legal information to make it accessible, with instant translation into 14 languages for enhanced discoverability and comparative research.
Over 2 million registered users

Founded over 20 years ago, vLex provides a first-class and comprehensive service for lawyers, law firms, government departments, and law schools around the world.

Truth on Trial: Law, Memory and Freedom of Expression in Europe

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users

You can sign up for a trial and make the most of our service including these benefits.

Why Sign-up to vLex?

Over 100 Countries

Thousands of Data Sources

Find What You Need, Quickly

Over 2 million registered users