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The article is here; the Abstract:
This paper examines how the European Court of Human Rights’ (ECtHR or Court) hate speech jurisprudence has been structurally reoriented by the Court’s response to an increasing number of applications brought by victims of hate speech. Whereas earlier case law predominantly assessed hate speech under Article 10 of the European Convention on Human Rights, focusing on the permissibility of restrictions on expression, recent victim-initiated claims have directed the ECtHR’s analysis towards Articles 8 and 14 and thus towards the question of State responsibility for protection against harm caused by third-party speech.
Through a reading of the ECtHR’s case law, this paper shows how the Court’s response to this applicant-driven expansion has recalibrated the balance between dignity, equality, and freedom of expression. The paper argues that the resulting framework risks limiting the doctrinal safeguards traditionally associated with Article 10 analysis.
In addition, there has been an increasingly expansive understanding of who qualifies as a “victim” of hate speech, extending this qualification beyond direct targets who are in protected groups to include individuals who are merely associated with such groups. The paper argues that the Court’s expanding expectation of positive obligations owed by States to their citizens in relation to the exercise of their rights may incentivize over-intervention by domestic authorities and chill legitimate public debate.
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