ECtHR: Court must not shield public officials from criticism, and must protect anonymous expression during protests

Today, 30 September, ARTICLE 19 has submitted an amicus brief to the European Court of Human Rights in the case of Stern Taulats and Roura Capellera v. Spain, urging the Court not to shield public officials from criticism, and to protect anonymous expression during protests.

The case concerns the criminal prosecution of the applicants for insult of the Crown. During an official visit of the King of Spain to the town of Girona, and following a separatist and anti-monarchy demonstration, the applicants, with their faces covered, set fire to an actual-size photograph of the royal couple, which they had placed upside down in a public square. The applicants were sentenced to fifteen months’ imprisonment (later replaced by a fine). They have now taken their case to the European Court and are arguing that the prosecution violated their right to freedom of expression. 

ARTICLE 19 finds that this case provides an opportunity for the Court to assess the following key issues:

  • The degree to which freedom of expression may be restricted in order to protect public officials such as members of a royal family from “insult”;
  • How should “insult” against public officials be distinguished from restrictions of “hate speech”;
  • The extent to which the European Convention protects anonymous expression, including the use of masks in protests. 

To assist the Court in the case, ARTICLE 19 provides an overview of the applicable international and comparative standards in these issues. Based on these standards, we argue that:

  • There is a high degree of international consensus that measures designed solely to shield heads of State or public officials from criticism are incompatible with the guarantees of freedom of expression in a democratic society. The criminal sanctions in speech are particularly problematic as they exert a chilling effect on potential critics, and, moreover, public officials can easily resort to other means and remedies, such as responses to criticisms via the media or official channels;
  • “Hate speech” laws should not shield public officials from criticism and application of these laws in such cases would distort their purpose;
  • The criminalisation of using masks at protests is an unnecessary restriction and chills the right to freedom of expression.  Although the standards on the right to anonymity are still developing in international law, there is thus far an emerging consensus that anonymity is an essential component to the exercise of the rights to freedom of expression and assembly both online and offline. This should also apply in the context of protests. If protesters commit crimes during protests, this can be addressed separately without abridging anonymity.

ARTICLE 19 urges the European Court to rely on these standards when deciding the case and protect the right to freedom of expression during protests.