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FROM HARM TO OFFENSE: REFLECTIONS ON THE CONSTRUCTION OF SPEECH NORMS...
amounts to a right remains contested. The understanding of what rights pertain
to the individual certainly evolves with society.
Let’s consider the Millean meaning and changes related to it, regarding first
the right (liberty) that is harmed, followed by a survey of changes regarding the
understanding of harm and its causation.
The right that is harmed
As mentioned above, in order to determine whether liberty, and in particular
freedom of speech can be restricted, and even criminalized, or not, a right has to
be affected (harmed). Fundamental (human) rights receive particular protection
and the purpose (aim) of the limitation is subject to more demanding scrutiny. If
fundamental rights are not a relatively closed list, then additional interference into
liberty or rights will be possible. As the interpretation of the legitimate grounds for
the restriction of fundamental human rights under the European Convention of
Human Rights demonstrates, practically any right (including collective interests)
may serve to restrict a fundamental liberty right in the name of protecting the
rights of others (which are attributed equal weight in the case-law of the Strasbourg
Court).
A further shift (related to ‘sensitivity’ which became an object of harm) is
related to recent changes in the concept of ‘others’ in the context of the ‘right
of others.’ Communal (a group of collective) interests are treated as the right
of a specific member within, the collective entailing imaginary collectives. New
sensitivities dictate the consideration of previously unheard of harm to unheard
of right holders, among others the Earth (Gaia as opposed to humans, suffering
the consequences of the damage to their environment) and animals. Not to my
surprise,’ the CJEU concluded that alleged suffering of animals in ritual (kosher)
slaughtering is a sufficien “right of others” to restrict the freedom of religion of
religious Muslims and Jews who eat halal/kosher meat.’
(human) rights is the fundamental right of others (and not any right or (even collective)
interest presented as a right.
The judicial nonchalance in this matter was a long time ago present, see Cha are Shalom
Ve Tsedek v. France, Application no. 27417/95. 27 June 2000.
10 Judgment in Case C-336/19. Centraal Israélitisch Consistorie van Belgié and Others. (In
order to promote animal welfare in the context of ritual slaughter, Member States may,
without infringing the fundamental rights enshrined in the Charter, require a reversible
stunning procedure which cannot result in the animal’s death.)
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