ABSTRACT
In Chapter 1, the rights to freedom of expression and freedom of religion as laid down in articles 9 and 10 ECHR were examined. Both rights can be restricted under circumstances described in the second paragraph of each of these articles and a three part test is applied under both, which can be summed up as legality – is the restriction prescribed by law; necessity – is the restriction necessary in a democratic society; and proportionality – are the means used to achieve the legitimate aim proportionate and necessary. The legitimate aims in both articles include the protection of the rights of others. But, as argued in the previous chapter, the right to freely manifest one’s religion under article 9 ECHR does not include a right to protection of one’s religious feelings against criticism or offence, in other words, does not include a right not to be offended. However, under article 10 ECHR, there is a duty on those who exercise their right to freedom of expression not to be ‘gratuitously offensive’ in the context of religious opinions and beliefs. It was established that ‘gratuitously offensive’ expressions are expressions that do not contribute to the public debate and/or are not capable of furthering progress in human affairs. Therefore, an expression that contributes to the public debate and/or is capable of furthering progress in human affairs, would not be ‘gratuitously offensive’ and would attract the protection of article 10, even if they are exaggerated, provocative, immoderate, hostile and potentially serious, as was discussed in Chapter 1.
