Freedom of Expression: The Key Battlegrounds with Guy Mettan, Cole Durham, Renata Arianingtyas, Pierre Fournel

A panel including Indonesian activist and former Program Manager for Human Rights and Justice at the Tifa Foundation, Renata Arianingtyas; Susa Young Gates University Professor of Law and Founding Director of the Center for Law and Religion Studies at Brigham Young University, Professor Cole Durham; former Vice-President of the International League Against Racism and Antisemitism (LICRA), Pierre Fournel; and journalist, former Executive Director of the Club Suisse de la Presse between 1998 and 2019, and former President of the Swiss Red Cross, Guy Mettan, address the 2nd Annual Geneva Summit for Human Rights and Democracy – see below for full prepared remarks.

 

Full remarks

 

Moderator, Guy Mettan: We are now going to look at within what limits do we place freedom of expression. You know that without freedom of expression of the media, human rights are not possible, because we won’t know what is happening. The media, together with the NGOs, are the only mass communication tools that help us to know what is happening in terms of human rights. And it is my personal conviction as a journalist that it is not possible to have a credible situation for human rights without it. 

Now the question will be how far we can go. Shall we place limits? Shall we curtail the freedom of expression? Shall we allow total freedom to the media, including the internet? There again, we know that our freedom of expression should end where other people’s rights begin; this is a well-known French saying. 

That is, shall we allow messages of hate, of xenophobia, defamation, blasphemous messages? Shall we allow total freedom of expression to individuals and the media? This is the question that we are raising today. 

We first discussed this about 12 years ago when UNESCO planned on holding a number of meetings with a number of eminent figures throughout the world. This took place in Valencia, in Spain, under Mr. Mayor, who was the director general of the UNESCO at the time. There was a desire to come up with a charter of duties. This was about the time of the 50th anniversary of the charter of the U.N., and the idea developed to have a charter of man’s duties as well, not only rights. 

A number of Nobel Prize laureates, a number of philosophers, and poets got together, and most of the speakers felt that it was impossible to come up with a charter of rights. Now, why is this? Because whenever we start to think about duties, we start limiting our rights, namely the freedom of expression. And therefore, the danger that would be over-limiting would be more serious than that of limitations in general. 

Now, individually, freedoms try to protect the human rights of individuals. And we talk about collective groups — we’re talking about groups, minorities — and there lies the potential risk of a dictatorship, therefore, although rare, of the minority over the majority. And it was deemed to be more important at the time to avoid this extreme stance. 

Now I’m saying this to lay the groundwork for further discussion. I’m now going to give the floor to our speakers, beginning with Professor Cole Durham, who teaches at Brigham Young University, and who is a specialist in religious practice and freedom, and freedom of expression. And therefore, I will give Professor Durham the floor right now. 

Professor Cole Durham: Thank you very much Mr. Chairman, and thank you to the organizers of this summit, which I think has been very stimulating and interesting for us all. 

I’m going to be talking about one of the key battlegrounds that is going on in the United Nations as we speak, and this has to do with the issue of defamation of religion. I’m going to try and quickly articulate the background and a possible approach going forward. 

I think there’s no question that we see the challenge of protecting religious sensitivities. I think the experience of the Danish cartoons just a few years ago sensitized many of us to the fact that there are sensitivities in the Muslim community that are higher than those that many of the rest of us are used to in the West. 

There has been an alarming increase in violence and discrimination based on religion or belief in the past few years. There’s a proliferation of hate speech targeting religious groups, insulting speech contributing to islamophobia, also christianophobia, antisemitism, and so forth. This has resulted over the past decade in a series of resolutions, first in the Human Rights Commission starting in 1999, then following in the UN Human Rights Council since 2007, with General Assembly resolutions starting each year in 2005 dealing with defamation of religion. 

These resolutions were basically proposed by the Organization of Islamic Conference, in collaboration with the Africa Group. They have a lot of rhetorical appeal; after all, who wants to be in favor of defaming religion? We live in a more tolerant world, hopefully — certainly those in this body. 

These resolutions, however, have been getting declining support — and I’m indebted to Bennett Graham, who is with us, for these charts — but you can see that there has been declining support in the Human Rights Commission, in the Council. The green line represents a combination of “no” votes and abstentions, which have started to exceed those in favor of the resolutions. This is also true with General Assembly votes. 

Now the basic problem with the defamation of religion resolutions is that they risk curtailing both freedom of expression and freedom of religion or belief. The resolutions are fundamentally at odds with the modern human rights regime, in particular since they aim at protecting belief systems or ideas, as opposed to the people who hold those beliefs. This has the effect of empowering states to determine permissible theology — something that is, again, inconsistent with the basic notions that we’re dealing with. 

There are a number of practical problems with the defamation of religion resolutions. First of all, they have the effect of curtailing discussion of religious differences. They contribute a chilling effect, or often can have a chilling effect, on various kinds of religious expression. All too often, autocratic regimes can use these norms to oppress dissenters and to entrench their own power. Minority and dissenting groups suffer, and there is a fundamental problem called the “hate speech paradox,” that these norms often tend to fail to protect precisely the persons they were designed to help. 

If you think about this very practically, if you’re a discriminated-against group, and someone engages in hate speech against you, you’re unlikely to bring an action, because that just makes you a lightning rod for further critique. On the other hand, if you’re in a majority and someone says something that just disagrees with you or something like that, but you want to make an issue of it, you can do that almost with impunity. And the result is that the wrong groups get protected.

It’s also important to notice that the defamation analogy is misleading; defamation is about protecting an individual from reputational harm, and usually, the individual whose reputation is damaged can prove the defamatory statements were false and can prove the nature of the injury. Defamation of religion, in contrast, is very amorphous; who is the claimant? Who’s going to stand for the religious community? How is the gravity of the offense to be measured? Should the state be evaluating this kind of claim in the first place?

Precisely because defamation actions threaten freedom of expression, defamation actions are being progressively limited — this is in general, this is not just defamation of religion. Defamation actions are actually relatively rarely prosecuted. Between 2005 and 2007, there were only eight countries that punished more than five individuals for defamation. This is not exactly an honor roll — it’s China, Philippines, Uzbekistan, Iran, Syria, Egypt, Chad, and the Congo — so the use of this type of remedy, in general, is dying down. 

There are unintended ill effects. The defamation of religion resolutions, albeit sort of broadly phrased, seem to be brought by the OIC, and while they’re aimed at protecting Islam, they may really have the opposite effect. They may intimidate reform-minded Muslims; they may provide grounds for persecuting sectarian opponents. Moreover, respectful criticism or engagement and discussion of religion may be inhibited. 

Note that the defamation of religion notion may be a way of giving a rhetorically attractive name to blasphemy legislation. Blasphemy legislation has historically been notoriously discriminatory. Muslims found this out during the Satanic verses episode in Britain, where, because they were asserting Muslim claims, whatever you think of the merits of these claims, they had no chance because the blasphemy laws only protected Christians.

As many of you know, Britain finally abolished its blasphemy statutes in 2008. But in general, there’s a tendency of these kinds of statutes to favor majority religions, and in general, there’s a trend away from using blasphemy law, toward using hate speech provisions — hate speech provisions which are narrowly circumscribed and carefully limited.

Now one of the reasons for being exercised about this is thus far there have been a series of resolutions in the Human Rights Commission, the Human Rights Council, and the General Assembly, but there is a new concern that despite the problems I’ve been talking about, there are proposals circulating which might raise this notion to the level of a binding treaty, most likely as a protocol to our Article 4 on CERD, not clear whether this is going to go through or not — certainly I think there’s much to be said against that — but it’s a concern.

What I’d like to outline is, very quickly, an alternative proposal. This would allow some margin of appreciation for legislation prescribing affronts to religious sensitivities. This would go beyond what would be allowed in my country, under our very strict protections of freedom of expression, but would be consistent with what is allowed under European standards. 

I think there ought to be a kind of safe harbor and notion, that is, there are certain kinds of things that the special rapporteurs have recognized, that the right to freedom of religion or belief does not include the right to have a religion or belief that is free from criticism or ridicule. There need to be some clear notions that there is room for debate. There needs to be a focus on gratuitous attacks, and there should be a very strict construction of the incitement requirement. 

This is in accord with Article 20. I’m not going to go into the doctrinal history of that, but the notion there could be limitations on expression where there is advocacy of national racial or religious hatred that constitutes incitement to discrimination, hostility, or violence. And my sense is that the hostility notion is very elastic; it needs to be understood as things like acts of hostility that would be on the same train as discrimination or violence.

To the extent there is regulable speech in this area, it ought to be subject to a strict incitement standard; there ought to be a very high threshold to be met on this. Generally in criminal law, when you have incitement statutes, there needs to be purpose; the person to be charged has to have the mental state of intending to incite. Nothing short of incitement to imminent acts of violence or discrimination should be included. So things like academic discussions or peaceful discussions, even discussions involving missionaries, ought to be allowed. I mean, after all, if it were political speech, no one would think twice about someone trying to persuade someone else of a political idea; the same thing should be true in the religious areas. So that would be the safe harbor notion again. And then drawing on European court language, expressions that shock, offend, or disturb, but do not rise to the level of incitement should constitute protected expression. 

This could be built on some of the things that have been happening. There was a resolution last September, jointly sponsored by the U.S. and Egypt, on freedom of expression that did not talk about defamation of religion but did express regret at the promotion by certain media of false images and negative stereotypes. The outcome document of the Durban Review in 2009 also left defamation of religion out and talked instead about derogatory stereotyping and stigmatization

So, my sense is we should drop the notion of defamation of religion and focus on protecting persons rather than ideas. I think this is viable, it’s consistent with some of the things that have been recommended by the various special rapporteurs dealing with freedom of expression from a range of international organizations, all of whom have urged the nations to stop supporting defamations of religions, because it does not accord with international standards accepted by pluralistic and free societies. 

This kind of approach does not require new treaty language. It could be adequately addressed in annual resolutions dealing with freedom of religion or belief, and my sense is that’s the way forward. 

Thank you, Mr. Chairman.

Moderator, Guy Mettan: Thank you, Professor. I think you’ve placed the issue very squarely in the center of our concerns, talking about countries who want to raise this issue of defamation but come up against the problem of liberty of expression. 

We now have Madame Renata Arianingtyas, who comes from Indonesia, who has also come up against this problem. She is the head of the Tifa foundation and.  As such, has come up against the problem of defamation of religion. We are looking forward to hearing your experience, and then we will move on to Mr. Fournel. 

So Madame Arianingtyas, I give you the floor.

Renata Arianingtyas: Thank you Mr. Chair. Good afternoon ladies and gentlemen. I’m very glad to be here, this is my first time coming to Geneva. Seeing the beautiful Geneva with the windy weather. It’s very hard for me to deal with the weather, to be honest.

Okay, I’m going to share with you what happened with the defamation of religion in Indonesia. I don’t have any presentation, to be honest. I’m just going to share the problem.

We have a defamation of religion law in Indonesia, and then we are now trying to repeal the law in the constitutional court.

For your information, Indonesia has a population of 220 million, with 300 ethnic groups, hundreds of beliefs as well, and languages. So in different ethnic groups, they have their own languages. The majority are Muslims — 88 percent are Muslims, and the others are divided into different religions.

By law, we have in the constitution freedom of religion and freedom of speech, including [that] to have opinions is respected but can be limited by religious values, public safety, public health, public morals, and public order. In terms of freedom of expression and freedom of speech, I think we have the most free media in Southeast Asia; no censorship at all, and we don’t need any permission to build media there.

However, in terms of defamation of the reputation of others, we have a big problem because we have different defamation laws according to the object. First, we have defamation of the reputation of public officials. We have a law on the defamation of the reputation of ordinary people, and the last one [is about the defamation of] religion.

For the defamation of religion law, it goes back to 1965. In that law, the state actually recognized only six religions. So the official religions we have are Islam, Catholic, Protestant and its denominations, Hindu, Buddhism, and Confucius. But still, they respect other beliefs, for example, Jewish, Zoroaster, and other traditional beliefs. 

But I think the most problematic one is in Article 1. It says like this: Every individual is prohibited in public from intentionally conveying, endorsing, or attempting to gain public support in the interpretation of a certain religion embraced by the people of Indonesia or undertaking religious-based activities that resemble the religious activities of the religion in question, where such interpretation and activities are in deviation of the basic teaching of the religion. 

So by this article, actually, this law is trying to mix up between defamation, heresy, and blasphemy — it’s everything on the same side. 

In our penal code, we have also a law or article dealing with defamation, and it’s also mixed up with hate speech. So in the penal code, it says that it is an expression in public to feelings of hostility hatred or insulting against one or more groups of the population of Indonesia, including groups that distinguish [themselves] from one another by race, country of origin, religion, descent, nationality, or constitutional condition. That is our article in the penal code.

And I think the problem in the law of defamation of religion, back in ‘65, was that when it comes to the court, the justices can have different opinion and different interpretation as well. Until now, we’ve had eight cases going to court under this law. And then there is one justice who says that to define “intentionally” is by the fact that the person knows, wants to do the act, and does the act, and understands the impact of the act. But, however, another justice says that “intentionally” is supposed to be defined by the fact that the person does the act consciously and by the impact of the act.

I think there’s a problem, because most of the time this law is being misused by the majority interests. So, in all the eight cases we have, most of the time they always [determine] that there is heresy done by this [accused] person because of the impact of [the act] in the society; because the society reacts harshly against this person or this group that’s trying to interpret differently of the of the basic teaching. 

And then in terms of freedom of expression, we have thousands of community media that belongs to specific groups of religion, ethnic[ity], or race that actually propagate violence or hatred. On the internet, we have a lot of websites that propagate violence. Usually it’s run by the radicals. 

If you see from the ICG report on Jemaah Islamiyah’s publishing industry, it also described the coverage of the media industry for the Salafi Group. Since we have a very free media and free speech, and we don’t have any censorship at all, the freedom of expression in Indonesia actually has been used for different purposes other than democracy. 

And apparently there is no complaint as well among the people about the conduct of hate speech in printed media, and the government of Indonesia doesn’t do anything as well for the reason of freedom of speech. 

And on the other side, when we have we do have a terrorism problem. I think since 2002 until now we have had more than four time [number of] bombings.  The government actually recognizes the increasing number of radical groups who propagate violence in sermons and other religious public gatherings. But they can’t really dissolve the groups because of that we have a freedom of expression law that’s really free. But they did a very controversial policy. They actually monitored the sermon in the mosque and even in the Islamic boarding schools,  and the policy was criticized massively by people and, even by the president. But it’s actually showing that the intervention to freedom of expression is not something that the majority of people want in Indonesia. 

So, in short, actually, the current enemy of free speech is no longer the state, but the people, or a certain group of people. It has the impact that mass media should be more cautious to publish news related to religions, since a group in the religion might hold a protest — and they could hold a violent protest; it happens many times. Whenever there are some newspapers trying to bring up some sensitive issues on religion, they will be protested by the radicals. And under the pressure of radical groups, the government could take measures against people, media, or groups which are considered to be defaming the religion. So those who are considered to be defaming religion is actually mostly the minority groups. The majority of Indonesian society seems very quiet and never responds to that. It is actually interesting but actually also shows me that we have different conceptions of what’s considered defamation or hate speech. And actually, it also influenced how we behave toward the defamation and hate speech in religion. 

I would say that Indonesia is a communalistic society, which means that communal identity most of the time overriding individual identity. If you go outside Jakarta, there is a cultural tradition to change ethnicity when there is a conversion of religion. And many residential management [programs are] based on ethnic [group]. The individual usually is seen as a member of the ethnic group, not as an individual. And in the political sphere, to prevent conflict, the resolution is a balance of power, meaning that the representation of two ethnic groups share power to keep the situation stable. However, there is always the degree of maturity of people. The community has different ways to manage their life together. We can find a lot of traditional practices that involve different cultures, so they can actually balance their life of homogeneity in a heterogeneous society

So, I think the problem will be that defamation is most of the time considered community assault, rather than individual assault, and defamation of religion [laws] usually see members of religions as communities, not as an individual, but as a member of a community. And the law of blasphemy was being misused for majority interest [rather] than minority protection. And for this one I would say that the U.N. resolution of defamation of religion actually can damage the true dialogue and intercultural dialogue that has been accessed in the community. I would say, as well, the state should not take any proactive intervention, or even criminalize speech, when there was no imminent danger to a specific group of minority. I think the media especially are supposed to have internal limitations or self-censorship to being more sensitive to the community as well. So we need to educate journalists to be peace and human rights promoters, to bring positive interfaith and intercultural dialogue in media. 

And I think for both state and society, they should start to initiate an intercultural dialogue to understand and respect the limit of tolerance of everybody. So, if we still have defamation of religion resolution or law in our country, I think it will actually stop the effort to understand the difference of others.

I think that’s my presentation, thank you. [Applause] 

Moderator, Guy Mettan: Thank you. This is a very concrete example you’ve given us that casts light on defamation of religion with the interesting sociological perspective. And we see the balance between ethnic issues and freedom that is necessary for freedom to continue.

Now we’re going to continue along and ask our next panelists to speak, Mr. Pierre Fournel, who’s the head of LICRA (International League Against Racism and Antisemitism), France. And then we will begin a discussion period.

Pierre Fournel: Thank you, Mr. Chair. I am delighted to be with you here today. I’d like to congratulate UN Watch for organizing this meeting. It was very well organized, and this has been a very important moment for the defense of human rights. So really, we would like to congratulate you and encourage you to continue. 

Now concerning our work today, LICRA is the League Against Antisemitism and Racism. It was born in France, and it now has an impact internationally. There are different sections and different countries. As its name would indicate, we fight against all forms of racial discrimination in France and in the world as a whole.

Now, what I should give you as prior information is that there is no democracy without freedom of expression, and there can be no wholesome kind of power without freedom of the press. And here when we were talking about limits in terms of our democracy, the issue changes according to the different countries we live in; we all have different world views. But, we would rather have too much freedom of expression than too little, as in in the case of dictatorships. When we take a look at the Chinese bloggers, well, we can say that internet is a conveyor of democracy, although there are adverse parts to it. All we have to do is look in Iran and take a look at the current regime of Ahmedinejad to see that there is a balance to be struck between freedom of expression and democracy.

We could talk about where the limit should be set, how far we should go. Freedom of expression is an important and crucial right, which is enshrined in international law. But it is not an absolute right. So there are things that should not be said. Words can be hurtful. just as hurtful as acts. 

The idea of moral violence: People can be hurt morally. We’ve seen examples of what is done against women; this is psychological hardship. We’ve seen that words can be painful, can be hurtful, can be violent. And LICRA sees this clearly. We’ve been working since 1927 to defend victims of racism, and we have worked to enact a number of laws. ‘85 with the law Gayssot, the law against negationism. And we’ve seen that there are victims that we cannot defend. 

So we use these laws. They are helpful for us, and we agree that without laws, we cannot regulate our life in a community. What we need to do is to know how far we should go, when should we pursue the issue concerning racism, when we should sue. Now courts can make mistakes. We have to face this every time we deal with the issue. When we look at Mr. Le Pen, and we see his racist posters, and we see the National Front. In terms of the national elections, we saw the anti-minaret posters; they copied something that had been used before. We see a woman in a veil with Switzerland behind it, the map of Switzerland, and the minaret represents a home. And this has elicited a huge response. Mr. Le Pen took this same poster, but for France, and he used the Algerian flag. So the message there was: No to Islamic culture. And of course we’re against a radical Islam. So, it is a kind of thumbs down to radical Islam, with a map of France and a flag of Algeria, but actually what is being said is no, we don’t want immigrants coming from Algeria. And it’s really an anti-migration message that is coming across, so they’re being mixed up. The National Front defended itself by invoking freedom of expression. And here we are clearly hiding in incitement against Muslims, covering up with another idea. 

We were talking about blasphemous wording before, and in Durban, we coined the word “islamophobia.” This is a very ambiguous term. What is that? We’re talking about the right to criticize a religion, or are we honing in on something more precise? Does that mean we cannot criticize a religion? We’re against the idea of islamophobia. We agree that any idea can be criticized. There can be caricatures. But if we equate islamophobia to racism against Islam, well then we feel that we should look at Muslims for what they are, and not for what they believe in. 

If we look at what is happening at the council of human rights in the United Nations, we see that there has been a ferocious struggle in April of 2009. And now we are trying to push the issue of religion into the public sphere. In France, there is total freedom of religion; this should be preserved. But when we mix up religion and politics, it could explode.

I don’t know if you saw that on the 1st of January, 2010, there was a law enacted in Holland against blasphemy in Europe, near our borders! This should not be targeted only at Islam. This is a return to a traditional approach. And since ’84 there have been 20 trials, a number led by the Catholic church. So it’s not just Islam, it’s not just Muslims that are doing them. Often the cases are just dismissed from court, but this offense of blasphemy shows that we are sliding back into traditionalism, conservatism, and an attempt to gag any kind of criticism of religion. Religion is an idea, in the end. And where I have the right not to believe in a religion, we should have total freedom. The only limit is that we should not have an incitement to hate, and that should be the barrier that we build. We must defend human dignity. 

The legal response is criticized; it’s not appreciated. But in our countries, the judicial system is independent. And we often think we should argue when we must try to convince people, but not everybody is able to pursue this argument, to defend their position. And we need the legal system. For a lawyer, this should be a just system. This is critical. And this kind of a fair and just system will allow us to avoid threats, which can be verbal, which may be physical. In 2007, we had a philosopher who wrote in the French magazine, something in Figaro, and he was issued a fatwa. His comments were very violent, very open to criticism, but the fact that he could be attacked physically and have his family threatened is unacceptable. And therefore, we defended him. Because what was important was not what he had said, but the fact that he had the right to say it, and he shouldn’t be gagged. And if he should, then it should go to the legal system and go before the courts. But it should remain within a system that respects laws and international standards. Thank you. 

Moderator, Guy Mettan: Thank you Mr. Fournel. 

Before we move on to questions, I’d like to return to something that you said. Can’t we be a little bit more precise about the limits between what constitutes acceptable freedom of expression and incitement to hate? Where does one end and where does the other begin?

That’s the question that we could ask. Are there any reasons to limit the freedom of expression?

Pierre Fournel: This is the question that LICRA asks itself every day. 

Moderator, Guy Mettan: Could you give us some cases?

Pierre Fournel: Well, I think that every case is different. First of all, the law protects individuals, we agree, and not ideas. So this is a precondition for any particular case. And secondly, was there incitement to hate against the population? That’s the second point. And the third point, where it’s on a case-by-case basis, each case is different. 

A caricature by someone who is read throughout the world is not the same thing as something said by Mr. Le Pen, for example. The caricature will not have the same effect., One person who reads Charlie Hebdo, which is known for that kind of thing, and which published those caricatures. Well, we know when we buy that magazine that we’re buying a magazine that likes to parody, likes satire. But when we see the national front on television, it’s not the same thing; we’re in a political context. And that is projecting a certain vision for elections. So, the act does not have the same consequence. 

You may know the comic, Mr. [Girardeau De Ne? ~46:24]. He’s come to Switzerland and there was a huge outcry in France because there he is in a hall –  he’s supposed to be a comic, he’s a humorist – but now he has a political discourse. In the theater, when he brings in Mr. Faurisson, who is a negationist — he’s the most famous negationist in France — and he brings him to the theater. Well, then we’re no longer in the context of humor, of a comic show. But we at LICRA feel that when there is antisemitism expressed in this context, then it’s no longer humor that we’re seeing. Professor Durham?

Professor Cole Durham: It’s a difficult borderline to draw, and I’ve really wrestled with this. I think certainly, as many of you would know, the U.S. constitutional position on this is really very strict. On the other hand, I have to say, I’ve spent a lot of time meeting with Muslims who deal with this issue, meeting with others; and in some ways, there really are areas where certain kinds of speech can be absolutely incendiary. And so I think one needs to focus on the balance. I think in many ways, Article 20, Paragraph 2 that I had on the screen during my presentation tries to draw this line. It’s very hard to draw this in the abstract; it’s very helpful to have an independent judiciary to do it. And one of the problems we have in many parts of the world is that we don’t have that.

I would say, also, just as a general, I think focusing on incitement is a way to come at this. Now, incitement can be looked at; what constitutes incitement in Indonesia may be different than what constitutes incitement in Copenhagen or in New York. And I think an independent judiciary can look at that and weigh that, to some extent. But I do think it’s very significant to pay attention to some of the built-in limitations in the notion of incitement. I’ve spent a lot of time as a criminal law professor dealing with this. I mean every system has target offenses and then a little border around the target offenses that are things like incitement, solicitation, encouragement, instigation, related concepts. And it’s important, as a matter of the rule of law, that incitement be narrowly constrained. One of the risks that many of us are nervous about is that even if one goes in the incitement direction, this can still be abused by people who want to count virtually anything as incitement. So that’s one of the reasons I’ve stressed that we need a very high threshold for incitement; that the person that’s the inciter actually have the purpose to incite. And then you can pay attention to a lot of factors such as, was there limited access? How broad was the intended circulation of the communication? Was it something more academic in nature? Was it targeted at a broad audience? How imminent is the proposed action? All of those things, I think, help tighten things up, so that while one allows some credibility to the claim that people can be deeply hurt by speech, one narrowly limits the range of situations where those limitations can be imposed. I think that’s what Article 20 was trying to do. I think it’s important that that be narrowly constrained.

Moderator, Guy Mettan: Okay, thank you. Thank you very much, Mr. Cole Durham. I will give the floor to Mrs. Arianingtyas.

Renata Arianingtyas: Thank you. I will start from my personal experience. When the film of the Da Vinci Code and the book of Da Vinci Code [were] published and distributed in Indonesia. I’m Catholic, so another a friend of mine, he’s a Muslim, asked me: Are you feeling defamed or insulted by this book? And I  said “no, why?” I asked why. Because this is the basic teaching of the Christianity, saying that Jesus is a prophet, and that he’s not married. But suddenly in this book, it’s saying that Jesus has a wife and children. I said “Well, we don’t consider it as blasphemous.” And for him it is completely different, because this is a basic teaching, it is blasphemous. It’s not something that he can understand. And if it happens to him, he will react differently. 

So, I mean, I have to say that different religions have different opinions on what’s considered blasphemous. And  since in Indonesia we are very multicultural and multi-faith, we may understand each other trying to respect what the difference is. And that’s why we are very careful on dealing with these matters. We never say that we are secular, but we also never say that we are a religious society or religious state. It is very difficult for us. And, me personally, I say that we are secular. But most of the people in Indonesia and the government say we are not. And that’s why we have, when Professor Durham was saying what constitutes incitement in in our law, in Indonesian law, it goes like this: “any person who disseminate, openly demonstrate, or put up a writing or a portrait where feelings of hostility, hatred, or contempt against or among groups of the population of Indonesia or express with intent to give publicity to the content or to enhance the publicity thereof, shall be punished by the maximum imprisonment of two years and six months.” So, the incitement is saying that whenever you just put [up] the drawings it’s blasphemous or considered blasphemous by the other groups [who say]  it’s incitement of hatred. So it’s very difficult. Most of the human rights defenders now in Indonesia, we are trying to repeal this, because it’s actually stopping us to understand each other. 

But the other side. We also have to realize that most, or a majority of the people in Indonesia are very communalistic. So, I have to say that we don’t have any answer yet. Where is the limit of the freedom of expression when it comes to religion?  We are trying to see, and then we’re trying to see, always, balance. But we actually don’t want, as well, to have that big limitation in the freedom of expression, because if that’s so, then we won’t be able to understand what the other people are saying. We wouldn’t be able to listen and understand what the criticism of us is as well. So this is a very sensitive issue now in Indonesia and is still debated both by the media, the press, the journalists, and even the religious leaders.

I spoke two two days ago when I came here. I met the head of the largest Muslim organization in Indonesia. And I said to him: “Why don’t you agree with us? I mean, we’re trying to repeal the blasphemy law, and it’s actually for us to be able to have true dialogue, intercultural dialogue, interfaith dialogue.” And he said that no, we can’t. We cannot approve that. He said that the basic teaching is something that is not under the dialogue sphere, it’s not able to be dialogue. The theology is not able to be dialogue. So, you know, that’s a different opinion.

So I think I cannot answer the question of where’s the limit, but I think that’s why I recommend that we need to create more interfaith, intercultural dialogue in the community. Do not involve any state, because the state will just make anything even worse, sometimes. Just put it on the community or grassroots level. Thank you. 

Moderator, Guy Mettan: Thank you, thank you very much Renata. 

So, I would like to give the floor to you. 

Audience member #1: Thank you. The discussion has been very interesting, and although it’s clear that the focus has primarily been on defamation of religion, with, of course, an obvious look at the OIC proposals, it’s clear that there’s also a relation in terms of the limits of free speech for insults that are based on race, ethnicity, tribal affiliation, etc. And in fact I think Mr. Fournel at least alluded to that. 

Now in Dr. Durham’s slide, it suggests that the line should be drawn at direct incitement to violence. In other words, an incitement to hate before that would seemingly, according to Dr. Durham’s criteria, not be something appropriately subject to a legal constraint. But in fact, if we look at the history of the 20th century, it’s shown us the dangers that come from a propaganda that starts with the dehumanization of particular groups before there’s an actual call to violence, whether we’re speaking about the Nazi characterization of Jews, or more recently Radio TV Mille Colline in Rwanda calling the Tutsis cockroaches. And so it seems to me that there’s a strong argument that the line, the barrier should be drawn at what Mr. Fournel called the incitation de l’haine. I‘d be interested in your comments and particularly Mr. Durham’s view on this. 

Moderator, Guy Mettan: Thank you. 

Professor Cole Durham: Yes, you rightly picked up that I think I would draw the line more carefully. I mean, I’m very sympathetic to the notion that the wording of Article 20 is essentially the advocacy of hatred that constitutes incitement to violence, hostility, or discrimination, that that’s the way you draw the line. And it’s true. The problem I have is if you just say “hatred,” I mean there are all kinds of things that may constitute speech that someone hopes to incite anger or hatred against you. I think, to have an open system, we have to allow some of that in. I don’t like it, I certainly wouldn’t encourage it, I think it’s immoral, and I think we have a lot of other social forces that mitigate against that. My hunch is that the things that really lead to the most serious kinds of events will be adequately picked up if you focus on things that really have concrete impact. Notice you’ve gotten both discrimination and violence, both of which have sort of a concrete kind of character and won’t solve all the problems, but there’s a balance here between having a free and open society and constraining the most offensive kinds of speech. So that’s how I would cut it. I hear you and understand there are other problems. 

Moderator, Guy Mettan: Mr Fournel?

Pierre Fournel: Well, briefly. There’s a great difference between the American and French systems. The Americans are always surprised on our law Gayssot, which penalizes negationism of the Holocaust. For us, it’s a critical law. We feel that people who deny the existence of the Holocaust, of the shoah, of the gas chambers, are showing hidden, but nonetheless, antisemitism. And this is criticized in the United States, because this would prevent, they say, historians from doing their work. Now we’ve had a number of trials in France concerning negationism; people who denied the number of the dead, the existence of the gas chambers. No historian was sued. Historians were able to carry out their research. Because historians are very important for conveying for recounting the genocide. Now, what is dangerous, which is what the nazis did, was to hide the genocide. So we feel that negationism of the shoah are examples of antisemitism. We understand the American point of view; it’s more liberal, and ours is a more strict view. Thank you. I’ll give you the floor, sir.

Audience member #2: My question is to Professor Durham and Mr. Pierre. Since this is a topic which is very sensitive sometimes in religions. And coming from a country where I was being persecuted in the name of the religions, being infidels. What will you say to a person that picks up a book of religion, a Quran, reads it, and then finally, takes a bushel knife and puts it in the throat of another human being and said finally “God is great,” which is “allahu akbar.” And that is in the name of religion. Do you consider that as expressions of religions, or is it a criminal act?

Professor Cole Durham: Could I say, I’m not quite sure I understood the question. You were describing the person that read the book, and then what happened?

Audience member #2: What do you think about a person who reads the Quran and tries to impose by violence to another one, by force.

Professor Cole Durham: Well, my response to that is the great Islamic saying that there shouldn’t be coercion in matters of religion. I think the point is that it’s important that there be ability to talk, to enter into dialogue, as Renata said, to share and exchange views in an open and respectful way. To use coercion, or economic inducements, or other kinds of pressures in that process, I think distorts the process and is not permissible. So, coercion would be a problem. And I think that’s going to be an offense under most criminal systems. 

Pierre Fournel: I wholeheartedly agree with the professor. Freedom of expression is enshrined in text alongside the freedom to practice one’s religion freely. These have been adopted internationally and should be applied in law, implemented. We human rights defenders try to defend this. And in certain countries, where people don’t have the right of changing their religion, like in Saudi Arabia — I think, if I’m not mistaken if one tries to, one can lose one’s life; one is liable to being put to death — and I think this should be fought against. 

Audience member #3: There are many religious beliefs, which are in fact against criminal law and human rights law. I mean various types of, what you spoke about, amputations and sharia law, is clearly in many cases in direct competition. But I wanted to ask exactly what you had spoken about, conversion, because, in fact, aggressive missionaries are in fact often the cause of much of the unrest destabilizing the communities that you spoke about. And I’m wondering how one can make distinctions there, because you have everything from methods of persuasion which might be building schools, material benefits, hospitals, and then you get to brainwashing, scientology, etc. And I think that raises much more anger when someone quits the faith than it does, although it is also an enshrined right of the Universal Declaration, the right to change one’s religion. I wonder if anyone has a reaction to that. 

Professor Cole Durham: I’ve thought a lot about this issue. I was at a conference in Washington last week, where actually a democratic politician pointed out that we have all kinds of places where we use speech to influence or persuade people. No one would think twice about someone who was in a political party speaking to someone else trying to persuade them to adopt a political position. Advertising does things all the time. So, first point is it needs to be understood that part of the reason we have freedom of speech is so that we can try to persuade each other of different kinds of views. Now, it’s true that there is a lot of sensitivity about the issue of what is improper proselytism, what is legitimate witness of religious traditions. And there are, of course, different sensitivities about what happens.

One of the things that’s always been striking to me, though, is that so often people focus on the supposedly coercive practice of missionaries and will interpret things that are basically even-handed efforts of religious persuasion. That will be characterized as aggressive proselytism. Often, if you look at what happens when people have converted voluntarily, without pressure, without economic inducements, and then you look at the pressures to get them to deconvert, I’ve got to tell you, the pressures on that side are massively greater, in most of the situations I’m aware of. So, I think the point I would make is certainly there are such things that are inappropriate. I think the [Kokkinakis] case in the European court and the Larissis case drew some useful lines. That is, if you have coercion, if you have fraud, if you have other kinds of strong sort of abuse of position, that’s inappropriate. But I think there should be broad latitude to speak about religion, to seek to exercise persuasion in that domain, as in all the other areas that we treasure freedom of speech for.

Moderator, Guy Mettan: Thank you, Mrs. Arianingtyus, please.

Renata Arianingtyus: Thank you. I think the case in Indonesia for aggressive missionary is a lot. When we had a tsunami in Aceh, we had quite a number of a missionaries coming there. And then. Aceh was actually renowned as an Islamic area. I mean, there are a lot of improper, aggressive missionaries, but I don’t think it has to be criminalized. Because a lot of times, it’s actually that none of the parties understand what happened in reality.

So, I used to say to a lot of missionary people, if you want really to help this community, do not ask more [of them] than what they can. Do not ask them to pray as you wish, you know. So just just help them, through meaning. I mean, it’s part like that already, proselytism. I mean, it’s like sharing the values. You don’t have to ask them coercively to pray in your rituals. So, I mean, I don’t think it has to be criminalized, but we also need to have a lot of dialogue, actually. And we need to respect the community that we want to help or we want to approach. I think that’s my comment, thank you.

Moderator, Guy Mettan: Thank you very much. We have time for two last questions, so missus and mister there, please.

Audience member #4: Hi, I would like to ask a question to Mr. Durham and also Pierre Fournel about what you were speaking about, the different legal traditions between the U.S. and Europe on incitement. For decades there’s been two very entrenched positions. On one hand criminalization in Europe, when there’s incitement to hatred, and on the other hand, unless there’s imminent threat to riot or violence, according to the first amendment of the U.S. Constitution, it’s impossible to take any measures whatsoever. 

I was wondering, both of you, given that you’re working on this from both sides of the continent, do you believe that there’s some sort of shift? Because I sort of feel that on one hand, the Americans are starting to realize that that it is important to deal with sort of non-legal measures, to deal with hate speech, and that it’s a reality, and that even if it’s not necessarily from their legal tradition, they have to deal with it, because it’s so important to the Europeans. And on the other hand, I have a sense that the Europeans believe that sometimes their own laws cannot always be very well implemented, and the enforcement of these laws are not as clear-cut as they should be, in terms of criminal sanctions, and penalties, and where you push the limit. Do you sense that there’s some sort of movement where people are converging on both sides of the Atlantic to deal with this in a new, novel way? 

Moderator, Guy Mettan: Okay, thank you. The next question will be our last question.

Audience member #5: I’d like to ask Mr. Fournel a question concerning France, concerning liberty of expression. We can speak verbally, we can write, but not through our clothes — and here I’m talking about the burqa — this is a belief, this is a way of expressing our religion. And I’m wondering if we should perhaps not limit our freedom of expression there. But if we create a law concerning the burka, aren’t we limiting their expression, but in terms of attire?

Moderator, Guy Mettan: Thank you, we’ll let Mr. Durham answer that, and then we’ll ask Mr. Fournel. 

Professor Cole Durham: I think I would respond to the first question. And yeah, I do think there’s something like this happening. I think there’s been a lot of work, some of it coming out of critical race theory, some of it coming from a variety of different directions. And so I think there’s a little bit more room for prosecution of hate speech and so forth. 

I view my own position, in fact I’ve sort of worried about my position, as being too un-American. That is, because I’m trying to listen to the fact that there are people who are really feeling very deep pain, and that needs to be addressed in some way. On the other hand, frankly those groups may be better off if, I mean the old notion that more speech is the best solution, that may actually help them. 

So I’m not speaking in a paternalistic way. But bottom line is, yeah, I think there is some convergence going on. I think people are really trying to listen hard. I think there are a lot of people of goodwill who want to make sure that we’re being sensitive to other religious groups, and that may be broadening out the amount of coverage. Thank you.

Moderator, Guy Mettan: Thank you, Professor Durham, and Mr. Fournel, I’d like you to speak now to finish up.

Pierre Fournel: Now concerning the burqa, well this could launch a whole new debate. When we talk about the burqa, I think we should say that religion should not stifle human rights. Today we feel we’re trying to consider whether it should be outlawed or not. And talking about the head scarf – but not even the burqa, that is a further step than the head scarf — it is an attack on women’s dignity. You can’t see anything but the woman’s eyes. So, religion should fall under the heading of human rights.

I know the situation in France. I can say that we have very solid legal underpinning, and we have the tools today to deal with these issues, and history has proven this. 100 years ago we had greater freedom of expression, but just think of the Dreyfuss trial: What was said then would no longer be possible today, and I think that’s a good thing. Or the extreme right before the war, the antisemitic comments that were made at the time. Well this could not be said today, and i think this has been a positive move forward. We no longer accept the expression of racism in our society. Of course there is racism elsewhere, there’s discrimination and whatnot. But we do no longer allow an openly racist government, and that is thanks to our laws and what they have taught us. 

Moderator, Guy Mettan: Thank you. I think we’re drawing to a close now. And we will leave our seats to the following speakers which will be on “Can the U.N. Human Rights Council be fixed?” Thank you for your kind attention. Unfortunately, no time is left. I’d like to thank all the panelists; we’ve had a very lively debate. We can see that the border is very difficult, and it’s been interesting to see your individual cases and to examine our doubts and talk about how to strike a balance between the necessary freedom of expression and a just-as-necessary need for protection to threats. Thank you for your kind attention. Thank you, speakers. Good afternoon. 

Hillel Neuer: Thank you, Mr. Chair. The panelists are invited for the next panel to come forward, and just to review the program. After this last panel, we’ll come to the conclusion of this very emotional two-day event. At around six o’clock or so, we will have the speakers who are still here and the NGO organizers, all of them will be invited to ascend to the podium. We will announce the Internet Freedom Declaration, which, as you know, has been a special focus, hearing today from Caspian Macan and NEDA and the role that the internet played in exposing those human rights violations. Internet freedom, we’ve chosen that as a focus of this summit, and the dissidents and the NGO organizers will announce the adoption of the declaration, which will be available soon on genevasummit.org. Thank you.

Speakers and Participants

Guy Mettan

Journalist and Executive Director of the Club Suisse de la Presse 

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