Case Law, Strasbourg: CICAD v Switzerland, Finding that allegation of “anti-semitism” was defamatory did not breach Article 10 – Calypso Blaj

27 07 2016

couv2_0In the case of CICAD v Switzerland (Judgment of 7 June 2016)(French only), the Third Section of the Court of Human Rights held that a judgment finding that an accusation of anti-semitism made by the applicant was unlawful did not violate Article 10.  The Court refused to engage with issues as to the definition of “anti-semitism” but accepted the conclusions of the national court that such a serious allegation could not be justified.

Background

The applicant CICAD (Inter-community Coordination against Anti-Semitism and Defamation) is a not-for-profit organisation which fights to combat all forms of anti-semitism.

In 2005, a book entitled ‘Israël et l’autre’ was published with the assistance of the University of Geneva. It was edited by professors under the supervision of WO, a professor in political science at the university, who wrote the preface. He is of Jewish descent through his mother. The Preface made some comments on the status of Judaism in Israeli politics.

In November 2015 CICAD published an article in their online Newsletter criticising the book and alleging that WO had used anti-Semitic language. WO replied to these allegations in the Newsletter in January 2016. Two months later ‘Cahiers Bernard Lazare’ published an article by M.S. (one of the authors who had criticised the book in November 2015) with almost exactly the same content.

WO began a civil action and in May 2007, the Canton of Geneva Court of First Instance found against MS and CICAD.  They were obliged to remove the article, to publish the Court’s reasoning in the Newsletter and the ‘Revue Juive’, and to pay costs.

In December 2007 the Court of Justice of the Canton of Geneva dismissed the appeal stating that the traditional meaning of anti-Semitism should be used and not, as the applicants argued, a modern one. The Federal Tribunal rejected the applicants’ appeal in 2008.

Application

On 27 March 2009, CICAD lodge an application with the Court of Human Rights alleging a breach of Article 10.

CICAD emphasised its status as a specialist in the area of anti-Semitism.  It argued that the allegation of anti-Semitism which it made, and for which it was condemned had a good factual basis and was nuanced; its target was the content rather than the author.

CICAD argued that the words did not merit curtailment of its freedom of expression in what was a highly controversial issue in a debate of public interest. It had not suggested that WO was guilty the crime of anti-Semitism under the Swiss penal code. In addition, there was no pressing social need for a condemnation of CICAD since it published WO’s response in its Newsletter more than a year before the Tribunal’s judgement at first instance.

CICAD contended that the civil sanctions had a censorious effect, preventing it from freely engaging in public debate and furthering its mission of denouncing anti-Semitism in future publications.

The Government argued that the allegation did not have a sufficient factual basis and consequently a discussion of the definition of anti-Semitism was misplaced and irrelevant.

It contended that WO’s comments were neither anti-Semitic according to its traditional definition nor its modern one: creating a link between the State of Israel and Judaism could not be considered anti-Semitic, and the situation would not be different if it concerned a nation other than the State of Israel.

The Government also argued that it is important in a democratic society to be able to debate ideas publicly, but if every commentary that discussed the political situation in Israel was considered anti-Semitic, there would be no debate.

Judgment

It was not in dispute that the civil condemnation of CICAD constituted an interference with its freedom of expression, or that it was prescribed by law in the pursuit of a legitimate aim. The question for was whether such an interference was necessary in a democratic society.

The Court had to decide whether the national authorities fairly balanced the Article 8 rights of WO with the Article 10 rights of CICAD, both rights deserving equal respect [48].  If the balancing of these rights by the national authorities was in accordance with the criteria established by the Court’s case law the Court would be slow to substitute its own opinion for that of the domestic courts.

It was necessary to distinguish between statements of fact and value judgments but the latter had to have a sufficient factual basis [49].

The Court said it was not within its remit to define anti-Semitism, but it was sufficient to take note of the finding of the Federal Tribunal that claims of CICAD’s about WO’s anti-Semitisim were value judgments without sufficient factual basis [54].

Despite the fact that the parties had taken part in a debate of public interest, the Court held that this did not justify CICAD’s defamatory allegations towards WO [55].

Though WO’s public comments meant that he opened himself up to the possibility of being heavily criticised, his writing were not abusive or insulting to Jewish people. CICAD’s allegations were particularly serious as they amounted to blaming WO for a crime under Swiss law.  The article could have highly damages consequences for WO’s personal and professional life [56].

Though CICAD was carrying out its statutory role of battling anti-Semitism, exercising Article 10 rights carries with it the duty to ensure that value judgments have a sufficient factual basis. As a result, the applicants should have realised that there is a difference between subjective statements based on objective fact, and anti-Semitic remarks [58].

The Court also points out that simply typing WO’s name in a search engine would bring up CICAD’s article and allegation of anti-Semitism, showing that WO’s rights and reputation were widely affected [60].

Furthermore, the fact that WO has been granted a right of reply did not have significant impact as, afterwards, CICAD published a second article. As a result, the right of reply was not adequate compensation for the harm caused to his private and professional life.

The sanction placed on the applicant was civil rather than penal, and was not considered by the Court to be excessive or disproportionate. The actions of the Swiss authorities fell within Article 10 so there was no violation [63].

Comment

The question as to the definition of anti-Semitism is a difficult one, particularly in the context of criticism of the state of Israel.  It is, perhaps, unsurprising that the Third Section chose to duck the question – relying on the Federal Court’s assessment that, whatever definition was used, Professor WO’s Preface was not anti-Semitic.

Although the debate in question was one of general interest and the Professor had to accept criticism, the allegation of anti-Semitism went too far.  The applicant was not exercising its freedom of expression in accordance with its “duties and responsibilities”.  The national court having carefully weighed the competing interests the Third Section was able to defer to its judgment.

The Court was strongly influenced by the seriousness of an allegation of ant-Semitism – which is a crime in Switzerland and had a serious impact on the Professor’s reputation (see [56] and [60]).  The lesson of this case is perhaps the obvious one that anti-Semitism is a very serious matter and, whatever the context, a heavy burden of justification lies on those who make them.  Those who make such an allegation without a proper basis cannot shelter behind Article 10.

Calypso Blaj is studying for the Bar.


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