Source: Bangkok Post (Published on 21/05/2009)
Europe's lese majeste laws and the freedom of expression
By: TJACO VAN DEN HOUT
Three interesting articles appeared recently in this newspaper on the topic of lese majeste, written by Dr Borwornsak Uwanno (April 7, 8 and 9, 2009). Although admirably comprehensive on many fronts, I note the author's omission of two important facts in describing the situation in Europe.
The first is the actual application of the lese majeste laws and the nature of the court decisions based on them. The second is that all European monarchies referred to in his series are party to the European Convention for the Protection of Human Rights and Fundamental Freedoms ("ECHR"). The impact of ECHR case law on the legal systems of the contracting parties should not be underestimated.
European domestic case law
While Dr Borwornsak provides an insightful overview on a number of European monarchies and their laws on lese majeste, it is important to realise that in most of the countries mentioned, these laws are hardly ever applied and if they are, the punishment is usually mild.
An examination of Dutch case law, for instance, reveals that there are few convictions and that in most cases a simple fine is imposed. In the United Kingdom the law has fallen into disuse and there are no examples of recent cases in Denmark and Norway.
When a Spanish satirical magazine was convicted to pay a fine of 3,000 euros for violation of Spain's lese majeste laws in 2007, members of the European Parliament called for decriminalisation of lese majeste in Europe.
Strasbourg jurisprudence
Even though there have been no lese majeste cases as such at the European Court of Human Rights in Strasbourg, there are two cases that merit acknowledgement when discussing penalisation of lese majeste in relation to the freedom of expression as guaranteed by Article 10 of the European Convention on Human Rights.
In the case of Colombani and others v France 2002, two journalists were convicted and made to pay 5,000 francs and 10,000 francs, respectively, in damages for publicly insulting a foreign head of state, King Hassan II of Morocco.
The court first pointed out that shielding foreign heads of state from criticism solely on account of their function or status "amounts to conferring on [them] a special privilege that cannot be reconciled with modern practice and political conceptions".
Furthermore, the court made it very clear that the common offences of criminal defamation "suffice to protect heads of state and ordinary citizens alike from remarks that damage their honour or reputation or are insulting". Even though this judgement concerns defamation of foreign heads of state, it suggests that the court considers penalisation for defamation of a head of state not "necessary in a democratic society" and in conflict with the right of freedom of expression as guaranteed by Article 10 of the ECHR. It is important to note that according to the court, even a civil court order imposing an obligation to pay damages for defamation may violate the right of freedom of expression as guaranteed by Article 10 of the ECHR, in particular if the amount to be paid is excessive. In the case of Pakdemirli v Turkey 2005, a member of parliament was ordered by a civil court to pay damages of approximately 60,000 euros for insulting the Turkish president.
First of all the court considered it alarming that the judgement of the civil court expressed an over-anxiousness for the position of the president. Second, referring to its decision in the Colombani case the court pointed out that even though in principle the protection offered by a special defamation law is not contrary to the spirit of the Convention, common defamation laws "suffice to protect heads of state and ordinary citizens alike from remarks that damage their honour or reputation or are insulting".
• This article reflects the personal views of Mr Van den Hout, who serves as Ambassador of the Kingdom of The Netherlands to the Kingdom of Thailand.
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