Page 342 [342]
ANDRÁS SAJÓ
where pornography" or other unpopular content is considered to be “offensive”
to morals or other sensitivities. In this logic, harm is replaced with systemic harm
(comfortably replacing moral impacts). Such systemic harm typically involves a
feeling of oppression among members of a group. This is exactly where we arrived
at with the criminalization of hate speech in Germany. The reason why speech (or
other liberties which are fundamental or human rights, for that matter) is protected
gets completely lost in the process of expanding the concept of harm. (See also
speech restrictions in matters of privacy, and the protection of personality rights
which was used in post-communist countries to forego disclosing the name of
denunciators (moral wrongdoers).
The trend is rather clear, but distinction between direct Millean harm and
other harms and offense remains blurred. In Skokie the effect of the march is
arguably close to individual harm as the march displaying the swastika targeted an
actual audience of victims and arguably, the Holocaust survivor audience members
suffered grave emotional distress at the sight of the swastika. But there was no
indication that physical harm will occur. The march of an organized anti-Roma
mob in the Hungarian village of Gyôngyôspata is a borderline case: the local
Roma were not victims in the sense of the Skokie Holocaust survivors, but were
part of a group that was subject to systematic prejudice. Those marching actedin a
way that was found to amount to real threat. The European Court of Human Rights
(ECtHR) found that the criminal conviction of those participating in the march
did not violate the freedom of expression. When compared with political speech
propagating anti-migrant policies (expulsion, reduced welfare etc.) where there is
no harm, only calls to deprivation of benefits in the future: these gualify as hate
speech (advocating for discrimination or discrimination) in many jurisdictions
and are not protected, perhaps for harming „dignity”."
The paradigmatic example for offense to sensitivity as grounds for restricting
speech is Otto-Preminger-Institut v Austria." In this case, the ECtHR found that
the mere existence of a private showing of a blasphemous film that may be viewed
by a few willing Austrians sufficed for a criminal offense in view of the fact that
95 percent of Tirolians are Catholic. The possible or imagined disapproval and
dislike sufficed for an offence, and once there was an offense, sanctions applied.
For Waldron, the offense in most of the above examples amounts to harm
because they make life more difficult for those insulted. Well, the essence of
In matters of pornography the negative impact on society (and minors in particular) is
considered, either as a matter of offended moral feelings or a matter of public morality. But
pornography as such is generally not considered as protected speech.
4 R.B. v. Hungary, Application no. 64602/12, 12 September 2016.
8 Féret c. Belgique (Requête 15615/07), 17 Juillet 2009.
16 Otto-Preminger-Institut v. Austria, (13470/87) [1994] ECHR 26, 20 September 1994.
+ 340 *