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The abuse clause and freedom of expression in the European Human Rights Convention: an added value for democracy and human rights protection?

Hannes Cannie (UGent) and Dirk Voorhoof (UGent)
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Abstract
With regard to certain types of hate speech, the European Court of Human Rights and the former Commission have developed a tradition of applying Article 17 ECHR; the so-called abuse clause. This application leads to categorical exclusion from protection of the right to freedom of expression (Article 10), an approach that contrasts sharply with the Court’s general attitude toward accepting and even creating a broad scope of protection under this right. It also contrasts with the Court’s usual examination of interferences with freedom of expression in the light of the case as a whole, all its factual and legally relevant elements being taken into consideration. The aim of this article is to show that the abuse clause’s application is undesirable, since it tends, even in its indirect variant, to set aside substantial principles and safeguards that are characteristic of the European speech-protective framework. The application of Article 17 is also unnecessary, as it in no way generates an added value for democracy or for human rights protection. We therefore strongly encourage the European Court to consider all forms of hate speech from the perspective of Article 10, without affording a decisive impact, directly nor indirectly, from Article 17 of the Convention.

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Chicago
Cannie, Hannes, and Dirk Voorhoof. 2011. “The Abuse Clause and Freedom of Expression in the European Human Rights Convention: An Added Value for Democracy and Human Rights Protection?” Netherlands Quarterly of Human Rights 29 (1): 54–83.
APA
Cannie, H., & Voorhoof, D. (2011). The abuse clause and freedom of expression in the European Human Rights Convention: an added value for democracy and human rights protection? NETHERLANDS QUARTERLY OF HUMAN RIGHTS, 29(1), 54–83.
Vancouver
1.
Cannie H, Voorhoof D. The abuse clause and freedom of expression in the European Human Rights Convention: an added value for democracy and human rights protection? NETHERLANDS QUARTERLY OF HUMAN RIGHTS. 2011;29(1):54–83.
MLA
Cannie, Hannes, and Dirk Voorhoof. “The Abuse Clause and Freedom of Expression in the European Human Rights Convention: An Added Value for Democracy and Human Rights Protection?” NETHERLANDS QUARTERLY OF HUMAN RIGHTS 29.1 (2011): 54–83. Print.
@article{1055493,
  abstract     = {With regard to certain types of hate speech, the European Court of Human Rights and the former Commission have developed a tradition of applying Article 17 ECHR; the so-called abuse clause. This application leads to categorical exclusion from protection of the right to freedom of expression (Article 10), an approach that contrasts sharply with the Court{\textquoteright}s general attitude toward accepting and even creating a broad scope of protection under this right. It also contrasts with the Court{\textquoteright}s usual examination of interferences with freedom of expression in the light of the case as a whole, all its factual and legally relevant elements being taken into consideration. The aim of this article is to show that the abuse clause{\textquoteright}s application is undesirable, since it tends, even in its indirect variant, to set aside substantial principles and safeguards that are characteristic of the European speech-protective framework. The application of Article 17 is also unnecessary, as it in no way generates an added value for democracy or for human rights protection. We therefore strongly encourage the European Court to consider all forms of hate speech from the perspective of Article 10, without affording a decisive impact, directly nor indirectly, from Article 17 of the Convention.},
  author       = {Cannie, Hannes and Voorhoof, Dirk},
  issn         = {0169-3441},
  journal      = {NETHERLANDS QUARTERLY OF HUMAN RIGHTS},
  language     = {eng},
  number       = {1},
  pages        = {54--83},
  title        = {The abuse clause and freedom of expression in the European Human Rights Convention: an added value for democracy and human rights protection?},
  volume       = {29},
  year         = {2011},
}

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