Willem de Vlaming, december 2025
Europe is an “expert by experience” when it comes to understanding the catastrophic harm that can result from hate speech and the erosion of democratic rule of law. Under the European Convention on Human Rights, freedom of expression is regarded as a fundamental right, but not all forms of expression receive the same level of protection.
The Convention does not protect speech that incites hatred, promotes violence, or stirs up discrimination against individuals or minorities, nor expression aimed at undermining or destroying democracy itself. Protection may also be lawfully restricted for certain categories of expression, including:
defamation and serious harm to reputation (false statements damaging an individual’s reputation);
obscenity and pornography (particularly where minors are involved);
disclosure of confidential information;
leaks that harm national security or public safety.
NOTE: The unauthorised creation and dissemination of sexualised or pornographic deepfakes using a real person’s identity or likeness is not protected by freedom of expression under the European Convention on Human Rights (ECHR), except in extremely limited and unlikely circumstances.
The right to freedom of expression is balanced against other rights protected by the Convention, notably the right to respect for private life and if a specific expression contributes to a debate of public interest --- in which politicians, press and more formal interest groups get more 'slack' than individuals.
Historically, the insufficient protection of the principles and practices of the democratic rule of law has posed a greater threat to individuals and minorities than the dangers associated with unrestricted freedom of expression. Democratic collapse has more often resulted from institutional weakness and power concentration than from excessive tolerance alone.
To prevent abuse of this normative tension, democracy must be embedded in a system of structural self-defence characterized by systemic neo-corporatist dispersion of consensus-oriented power. Examples include the Dutch Polder Model and the Rhineland Model, where power is dispersed across social, economic, and political institutions rather than centralized in the state.
This form of systemic self-defence constrains power through both a robust legal framework and a social governance model that deeply embeds:
Neo-corporatist dispersion, and separation of power across political, economic, and social domains;
Meaningful participation and co-ownership by citizens and organized social stakeholders within empowered, pluralistic, and decentralized governance structures.
Under these conditions, limited restrictions on freedom of expression function not as domination, but as institutional safeguards that preserve the conditions under which freedom, pluralism, and democratic contestation can endure.
BUT
RESTRAINT, SPECIFICITY & PROPORTIONALITY MATTER!
NOTES:
Freedom of expression: Under the European Convention on Human Rights, protection of the freedom of expression does not cover speech that incites hatred, promotes violence, or stirs up discrimination against individuals or minorities, or speech aimed at undermining or destroying democracy itself.
Protection becomes controlling censorship when restrictions are no longer a narrowly tailored, necessary defense of the principles, practices and institutions of democratic rule of law, the pluralistic open society and human rights — but instead become a broad, discretionary, or permanent means of managing political expression or insulating power from challenge.
Red flag: When restrictions disproportionately affect critics of the government rather than demonstrable threats to democratic institutions.
The Dutch polder model is a system of dispersed power through neo-corporatist, consensus-based governance.
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Europe is an “expert by experience” when it comes to understanding the catastrophic harm that can result from hate speech and the erosion of democratic rule of law. In the aftermath of the Second World War, European states created institutions such as the Council of Europe and later the European Union with the explicit aim of fostering peace, democracy, and respect for the rule of law..
The Council of Europe (CoE), founded in 1949, is an international organisation whose core mission is to protect and promote human rights, democracy, and the rule of law across Europe. This mission is often described as safeguarding Europe’s common constitutional heritage, forged in response to the devastating consequences of authoritarianism, the destruction of the rule of law, and the collapse of pluralistic, open societies driven by hate speech and intolerance.
The European Convention on Human Rights (ECHR) is the central legal instrument through which this mission is pursued. While the Convention robustly protects freedom of expression, it also affirms the importance of constructive criticism of democratic principles, institutions, and practices — particularly where such criticism seeks to improve the quality and effectiveness of democracy, human rights protection, and the rule of law.
At the same time, the European Court of Human Rights (ECtHR) has consistently held that democracy must be capable of defending itself. Accordingly, while the Convention protects critical and even provocative expression, it does not extend protection to speech aimed at undermining or destroying democracy itself. Expression may therefore fall outside the scope of protection, or be subject to legitimate restrictions, where it seeks to promote autocratic or totalitarian systems, a “closed society,” or the denial of the fundamental values on which the Convention is founded.
Short definitions and some notes:
The Council of Europe (CoE) is an international organisation founded in 1949 whose core mission is: To protect and promote human rights, democracy, and the rule of law across Europe. This mission is often described as safeguarding Europe’s common constitutional heritage after World War II. The European Convention on Human Rights (ECHR) is the central legal instrument through which this mission is pursued. The Council of Europe does not have executive or coercive powers like a state or the EU. Its enforcement relies on legal, political, and reputational mechanisms. A state that seriously violates CoE principles may be: Suspended from representation; Expelled from the organisation.
Democratic rule of law: A system of governance in which public power is exercised through democratically enacted laws, subject to legal certainty, equality before the law, separation of powers, independent courts, and effective judicial review, ensuring that government is accountable and constrained by law.
Pluralistic open society: A social and political order based on pluralism, tolerance, and freedom, in which diverse views, identities, and ways of life coexist, public debate is open and contestable, and no single ideology, belief system, or authority may monopolize truth or power.
Human rights: Universal, inalienable rights inherent to every person by virtue of their human dignity, which protect individual freedom, equality, and integrity, limit the exercise of state power, and are legally guaranteed and enforceable against the state.
The European Court of Human Rights (ECtHR) is the international court (not European Union) that interprets and enforces the European Convention on Human Rights. It hears complaints against member states for alleged violations of the Convention from, individuals, groups, states. The court decides whether a state has violated the ECHR and issues binding judgments — thus developing human rights standards through case law.
The EU is not a party to the ECHR but its member states are, ECHR standards heavily influence EU law.. Freedom of expression is protected as a fundamental right in EU law. The Court of Justice of the EU (CJEU) interprets freedom of speech often relying heavily on ECtHR case-law.
Freedom of expression / Free speech ... EU versus USA: The European Convention on Human Rights (Council of Europe - 47 countries) and the European Union (27 countries) prioritizes protecting democracy, dignity, and pluralism, even at the cost of restricting some speech. The USA prioritizes maximal freedom of speech, even at the cost of tolerating harmful and anti-democratic rule of law targetted expression and action. The EU uses a “militant democracy” framework in which freedom of expression is a fundamental right, but not absolute. Anti-democratic speech and activism may lose protection, expression and activism aimed at destroying democracy or human rights — can be restricted or excluded. Hate speech may be criminalised.
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According to the European Court of Human Rights:
Freedom of (critical) expression constitutes one of the essential foundations of [a democratic] society, one of the basic conditions for its progress and for the development of every man.
every ‘formality’, ‘condition’, ‘restriction’ or ‘penalty’ imposed on freedom of expression must be proportionate to the legitimate aim pursued.”
but as a matter of principle it may be considered necessary to sanction or even prevent forms of expression which spread, incite, promote or justify hatred based on intolerance, provided this is proportionate to the legitimate aim pursued.
There is:
No protection at all for: Hate speech, Holocaust denial, incitement to violence, promotion of totalitarianism, destruction of democratic rule of law and the pluralistuc open society.
Restricted protection for: Defamation, obscenity, national security threats
Strong protection: Political speech, matters of public interest, journalism
No room for: Blanket bans on “fake news”; restraints without judicial safeguards; sanctions without proof of intent and harm.
Under the case-law of the European Court of Human Rights (ECtHR), freedom of expression is protected by Article 10 of the European Convention on Human Rights, but not all forms of expression benefit from this protection. The Court has identified several categories of expression that are excluded or only weakly protected.
Article 17 prevents individuals from relying on Convention rights to destroy the rights of others or the values of the Convention itself. When this applies, protection is completely denied. The Court has applied this mainly to:
Hate speech: Racist, xenophobic, antisemitic or Islamophobic expression; Speech that dehumanizes or promotes hatred against groups
Speech that runs counter to the Convention’s fundamental values of justice, peace, and tolerance. Like Holocaust denial and justification of crimes against humanity.
Incitement to violence or terrorism: Speech encouraging violence, armed struggle, or terrorist acts
These forms of expression are not excluded outright, but may be lawfully restricted if the interference is prescribed by law, pursues a legitimate aim, and is necessary in a democratic society.
Defamation and serious harm to reputation: (False statements damaging an individual’s reputation)
Obscenity and pornography (especially involving minors): States enjoy a wide margin of appreciation, particularly for protecting morals and children.)
Disclosure of confidential information: Breaches of professional secrecy (lawyers, doctors, civil servants) Leaks harming national security or public safety
Commercial speech: Advertising enjoys lower protection than political or artistic expression.
The European Court of Human Rights has dealt with attacks on democratic institutions and targeted disinformation in a more nuanced way than with classic hate speech or Holocaust denial. In most cases these forms of expression are **not automatically excluded** from Article 10 protection, but they **may lose protection or be lawfully restricted** depending on their content, intent, and effects.
Some expression remains protected but at a lower level:
Insulting, shocking, or offensive speech: The Court has stated that Article 10 protects expression that: “offends, shocks or disturbs”. However, protection may be reduced when speech: is purely gratuitous; contributes nothing to public debate; targets private individuals without justification
Attacks on the principles, institutions, and representatives of a democratic, pluralist society
General rule: The Court has consistently held that democracy depends on pluralism, tolerance and broadmindedness, and that criticism of institutions, the state, and political actors is at the core of protection.
Strong protection applies to: Criticism of governments, parliaments, courts, political parties. Attacks on political ideas or ideologies. Harsh, provocative, or polemical language in political debate
No protection and may be excluded from freedom of expression: Anti-democratic ideologies seeking to destroy Convention values; Expression aimed at abolishing democracy, pluralism, or fundamental rights. Like: Fascist or Nazi propaganda, Calls to establish a totalitarian regime; Advocacy of violence against democratic institutions
Attacks undermining the authority of the judiciary: Baseless allegations against judges. Statements eroding public confidence in justice without factual basis.
Personal attacks on democratic representatives: Insults with no contribution to public debate. Attacks targeting private life rather than public functions. (Politicians must tolerate wider criticism than private individuals, but not unlimited abuse).
Targeted disinformation:
General rule: False information as such is not excluded from protection. The Court does not recognize a general “right to truth” enforced by censorship.
When disinformation may be restricted: Deliberate and systematic falsehoods, especially where they: Are knowingly false; Are disseminated in a coordinated or targeted manner; Aim to manipulate democratic processes (elections, referenda); Undermine trust in democratic institutions.
While the ECtHR has not yet developed a standalone doctrine on “disinformation”**, its jurisprudence allows states **greater regulatory leeway** where democratic integrity is at stake.
Targeted manipulation and hybrid threats: Speech may be restricted where disinformation: Forms part of foreign interference; Uses bots, fake accounts, or micro-targeting; Poses risks to national security or public order. The Court gives states a margin of appreciation, especially in matters of electoral integrity and national security.
LINK to ECtHR: https://www.echr.coe.int/documents/d/echr/fs_hate_speech_eng