28 March 2019
Fundamental Rights as Bycatch – Russia’s Anti-Fake News Legislation
On 18 March, following approval by President Putin, Russia’s controversial anti-fake news legislation entered into force. While Russia is not the only state to address the issues of hate speech or fake news with legislative means, its new legislation raises serious constitutional concerns, particularly due to its imprecise and overly broad scope of application. Continue reading >>
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16 December 2018
A Look behind the Fake News Laws of Southeast Asia
In Southeast Asia, attempts to regulate the fake news phenomenon can be broadly categorized, on the one hand, in cases where fake news laws are conceived at least also as the government’s weapon to silence critics and dissenters, and on the other hand, cases where the discourse is lead more open-ended. Under the first category, Malaysia springs to mind, Cambodia and Vietnam possibly too. Thailand is a somewhat mixed case. Much more open-ended are the fake news discourses in Indonesia, the Philippines and Singapore. Continue reading >>
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09 December 2018
“Constitutional Resilience – How Can a Democratic Constitution Survive an Autocratic Majority?”: Freedom of Speech, Media and Civil Society in Hungary and Poland
Freedom of speech, media freedom and the freedom of civil society are the lifeblood of democracy. As far as the threats to freedom of speech, media and civil society are concerned, from a normative perspective, the problems of Hungary and Poland are decidedly not external to western democracies. The question arises of how resilient constitutions are or can be made in this matter, whereby political viewpoint discrimination takes a center role in the conetxt of not only constitutional resilience but also our European values. Continue reading >>
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20 July 2018
The Curious Case of Article 299 of the Turkish Penal Code: Insulting the Turkish President
Judgments by the Strasbourg Court are binding on Turkey and furthermore are the primary source for interpreting the European Convention of Human Rights, a treaty to which Turkey is party and which, according to Article 90 of the Turkish Constitution, prevails over national laws such as Article 299 of the Turkish Penal Code on insulting the President, in the event of conflict. ECtHR jurisprudence clearly indicates such a conflict between Article 299 and the Convention. But are Turkish courts aware of this? Continue reading >>08 February 2018
The German NetzDG: A Risk Worth Taking?
While the NetzDG is unlikely to resolve all challenges surrounding social media and freedom of expression, and undoubtedly presents a certain risk of stifling expression online, I believe it is nonetheless a significant step in the right direction. Rather than undermine freedom of expression, it promises to contribute to more inclusive debates by giving the loud and radical voices less prominence. In any case, it appears reasonable to let this regulatory experiment play out and observe whether fears over a ‘chilling effect’ on free expression are borne out by the evidence. Continue reading >>06 February 2018
The Hierarchy of Hate: Mixed Signals in the Combat against Hate Speech
There is a number of varying thresholds to free speech regulation set out by relevant legal tools which can do nothing but confuse countries. Moreover, anti-hate speech legislation developed on an international and European level is marred by what I refer to as the hierarchy of hate, namely the arbitrary focus on particular types of hate speech, such as racist speech, and the simultaneous disregard for other genres such as homophobic speech. Continue reading >>
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01 February 2018
Calling Murders by Their Names as Criminal Offence – a Risk of Statutory Negationism in Poland
On the eve of the Holocaust Remembrance Day on 27th of January, the Polish Sejm approved a law on the defamation of the Polish State and Nation, causing extremely harsh reactions from Israel, Holocaust survivors and international organizations. While the attempt to ban the use of the word "Polish concentration camp" seems fully justified, the scope of the law goes way beyond that and is a threat to the freedom of speech and academic research. Continue reading >>
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27 September 2017
The Catalunya Conundrum, Part 3: Protecting the Constitution by Violating the Constitution
Lacking legitimacy in Catalonia because of the absence of solutions to Catalan democratic claims within the Spanish legal framework, the position of Spanish institutions is badly weakened. Therefore, they do not to want to take the risk of creating even more political unrest in Catalonia with public and explicit debates on the suspension of autonomy or on the necessity of limiting fundamental rights. Instead, Spanish government is pushing other institutions, such as the Constitutional Court, prosecutors, police and judges, as well as their own executive powers, beyond their ordinary limits. Continue reading >>
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05 April 2017
Meinungsfreiheit und Gewalt
Das BVerfG setzt seine Serie von Kammerentscheidungen zur Meinungsfreiheit fort: wenn ein Rechtsextremer einen grünen Bundestagsabgeordneten als "Obergauleiter" bezeichnet, dann ist keine Schmähkritik. Das ist weder ein Skandal noch ein Triumph, sondern ziemlich normal. Continue reading >>07 November 2016
Geert Wilders’ “Incitement to Discriminate” Trial
Months before the parliamentary elections in the Netherlands, the leader of the far-right Freedom Party and election favorite Geert Wilders finds himself before a criminal court. He is charged with insulting and inciting discrimination against residents of Moroccan descent by promising his supporters "fewer Moroccans" in 2014. Wilders and his defence seem to invoke the theory of the ‘marketplace of ideas’, which is a common line of thinking in United States First Amendment law. The principal standard for Dutch courts however, the European Convention of Human Rights, takes a somewhat different stance. Continue reading >>
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