Application Number 15271/16 and 6 others
European Court of Human Rights[Judgment delivered in French]
The applicants are eleven members of the “Palestine 68 Collective,” a French organization supporting the Boycott, Divestment, Sanctions (BDS) movement which calls for, amongst others, the boycott of Israeli products. The applicants were punished for incitement to discrimination and received fines. The ECtHR found that the French restriction was not necessary in a democratic society and thus found a violation of Article 10.
Date: 11 June 2020
Description of applicant(s): Activists of the BDS movement
Brief description of facts: The applicants are eleven members of the “Palestine 68 Collective,” a French organization supporting the Boycott, Divestment, Sanctions (BDS) movement. On 26 September 2009 and 22 May 2010, the applicants took part in an action inside a supermarket, where they placed products which they deemed to be of Israeli origin in trolleys and called for a boycott. They received fines for their actions on the grounds that these amounted to incitement to discrimination.
(Alleged) target(s) of speech: Jews/Israelis
The Court’s assessment of the impugned speech: The Court found that a boycott is a means expressing political opinions. It noted that the French measure was in pursuance of a legitimate aim, namely protecting the commercial rights of producers/suppliers of goods coming from Israel. However, such a restriction was not necessary in a democratic society, and thus the measures taken by France against the activists amounted to a violation of Article 10. The Court distinguished this case from Willem v France given that the applicant in that case was the Mayor who had called for a boycott against Israeli goods. Given his public status, he had a particular duty and responsibility to maintain neutrality.
Important paragraph(s) from the judgment:
Para. 64: The call for a boycott constitutes a particular method of exercising freedom of expression in that it combines the expression of a protesting opinion and the incitement to differential treatment so that, depending on the circumstances which characterize it, it is likely to constitute a call to the discrimination of others. However, the call to discriminate is part of the call to intolerance, which, along with the call to violence and the call to hatred, is one of the limits that should not be exceeded under any circumstances in the context of the exercise of freedom of expression…However, inciting to treat differently does not necessarily amount to inciting discrimination.
Para.41: It is well established and worth repeating that forms of expression which serve as a screen or call for anti-Semitism do not fall within the protection guaranteed by the Convention, either under Article 17 or under Article 17. On the other hand, acts of expression which, as in the present case, aim to condemn a government or a state, in line with the opinion formulated by “respectable observers,” including the member states of the Council of Europe, the United Nations General Assembly, the European Union and the International Court of Justice…may unquestionably fall under Article 10 of the Convention.
Para.78: A detailed reasoning was, however, all the more essential in the present case as we are in a case where Article 10 of the Convention requires a high level of protection of the right to freedom of expression. On the one hand, the actions and comments for which the applicants were accused concerned a subject of general interest, that of respect for public international law by the State of Israel and of the human rights situation in the occupied Palestinian territories, and were part of a contemporary debate, open in France as in the entire international community. On the other hand, these actions and these comments came within the scope of political and militant expression (see, for example, Mamère v. France, no 12697/03, § 20, ECHR 2006 XIII). The Court has pointed out on numerous occasions that Article 10 § 2 leaves little room for restrictions on freedom of expression in the field of political speech or matters of general interest…
ECHR Article: Article 10
Use of ‘hate speech’ by the Court in its assessment? No
Note! Translation from French to English is our own.