In this contribution, the authors discuss the evolution of the jurisprudence of the European Court of Human Rights and the possible overcoming of the Otto Preminger doctrine, which had determined a balance point between freedom of expression and protection of religious sentiment notably shifted towards the second element.
In ECtHR’s jurisprudence, since the famous Handyside judgment, the doctrine of the margin of appreciation mitigated the systemic tension in the European Convention framework, although this increased the risk of a nonuniform application of the ECHR norms. Hence, the Otto Preminger doctrine demonstrates that the flexibility of ECtHR’s interpretation can legitimize forms of protection of religious beliefs that prevail over other human rights and freedoms enshrined in the Convention.
This contribution analyzes the doctrine of the margin of appreciation and the judgment of proportionality of the ECtHR concerning the relationship between freedom of expression and the protection of religious sentiment. The analysis of ECtHR case-law highlights some critical issues relating to the risk for States parties to circumvent the obligations stemming from the Convention.
Every practical solution emerging from ECtHR jurisprudence reflects the different postures of the society towards the freedom of individuals. Thus, from mere negative liberty, freedom of religion turned into positive freedom, that is, in the claim to the active protection of the religious sentiment, up to prevail over freedom of expression.
The author analyzes the balance between freedom of expression and protection of religious sentiment from the perspective of international law. As a specific form of freedom of expression which prevails over the absolute protection of religious sentiment, the freedom of blasphemy emerged as a feature of western culture in pluralistic and secularized societies. However, the growing presence of different religious minorities in western societies poses new challenges, making it possible to strike a new balance between freedom of expression and the protection of religious belief, even as a result of the fragmentation of the system of legal sources and the unity of international law, of the problems of interpretation that characterize the multilevel protection of rights, and the issues of fundamental rights in the world of information technologies.
The balance between freedom of expression and defamation of religion is analyzed in a comparative perspective, with reference to the Italian and French cases in the broader framework of European and international law. The comparative perspective offers a valuable observation point from which it is possible to analyze the relationship between the balance that the legal systems operate and the different fundamental constitutional values. In the analysis, the different approach of the diverse countries highlights some critical issues relating to the fragmentation of the system of legal sources and the unity of international law, of the problems of interpretation that characterize the multilevel protection of rights.
The paper analyzes the balance between freedom of expression and the protection of religious sentiment in Italian constitutional jurisprudence. Since the introduction of the Italian constitution, the provisions of the criminal code concerning blasphemy and protection of religious belief, approved during the Fascist period, were first tolerated by constitutional jurisprudence and then gradually erased, both by the Constitutional Court and by the Italian legislator. The contribution focuses on two landmark decisions, sentence n. 440/1995 and sentence n. 508/2000 of the Constitutional Court, which marked a turnaround in constitutional jurisprudence and the definitive statement of the principle of state laicity.
This contribution focuses on the digital environment, where freedom of expression is displayed through the medium of private social platforms, which exercise forms of algorithmic censorship. In this sector, freedom of expression is strongly affected by the horizon of soft law, the self-regulation of stakeholders, and IT’s techno-regulation. In other words, private social media platforms impose their balance between freedom of expression and protection of religious belief. This balance is sometimes the result of the platform’s cultural setting, its national origin, and the horizon of values to which it refers. However, the global dimension of information technology pushes platforms to limit freedom of expression to protect the religious phenomenon, even just for caution. The paper analyzes some specific cases of this general phenomenon.