On 10 June 2020, ARTICLE 19 intervened in a case pending at the European Court of Human Rights where the applicant was criminally convicted for posting videos online that allegedly called for ‘extremist activities’. The applicant’s videos called for people to oppose the Russian government via nonviolent means. However, authorities found that his videos incited hatred against a ‘protected group’ – in this case, government officials. He was criminally convicted on these grounds. ARTICLE 19 finds the government’s argument that public officials should be considered a ‘protected group’, and thus warrant enhanced protection under ‘hate speech’ laws, has no basis in international law. Such a qualification would inherently restrict any criticism directed towards the government and interfere with freedom of expression.
In Yegor Sergeyevich Zhukov v Russia, the applicant was criminally convicted for posting four videos on his YouTube channel calling on viewers ‘to use all possible nonviolent means to oppose the government’. The Russian authorities found that his videos constituted ‘extremist activities’ under the problematic Russian Law on Suppression of Extremist Activities, which considers ‘representatives of the current government’ as a ‘social’ group that ‘merits enhanced protection’.
The term ‘protected’ or ‘social’ group is often used to protect historically marginalised or discriminated categories of the population. The term offers these groups additional protection against ‘hate speech’ that targets them for their race, gender, and sexuality, among criteria. However, we believe that in the present case, the term ‘social group’ has been interpreted broadly in order to criminalise all criticism directed towards government representatives.
In our submission, ARTICLE 19 raised concerns that the legislation in question has been misused in order to overly protect government officials and quash any political opposition instead of tackling ‘extremist behaviour’. In particular, we highlighted the following:
- The videos in question called ‘to oppose the government’ through nonviolent means. If individuals cannot criticise the government, then the government cannot be held accountable for its actions. While freedom of expression can be restricted on the grounds of incitement to violence and hatred, the threshold for such restrictions is high in order to avoid this type of misuse. This case demonstrates that these types of laws must be highly scrutinised in order to avoid undue restrictions on freedom of expression.
- Political speech is of vital importance in any democratic society. This means that speech, whether in favour of or in opposition to the government, is of public interest and any restrictions must meet the three-part test of legality, proportionality and necessity. A government cannot simply repress any speech that it disagrees with. This includes speech that some may consider disturbing, shocking or controversial.
- The argument that ‘representatives of the government merit enhanced protection’ should be rejected by the Court. Due to the public nature of their functions, using ‘hate speech’ or ‘extremist’ legislation as a guise to enhance their protection violates freedom of expression standards. The consequences of such a qualification would be dire as they would ultimately silence government critics and stifle freedom of expression.
In light of the above, we firmly believe that government representatives and public officials are legitimate subjects of criticism. Indeed, they should tolerate more, not less, criticism than ‘ordinary citizens’ and should therefore not be considered as a ‘social’ or ‘protected’ group that ‘merits enhanced protection’.