Europe

This page considers blasphemy regimes in Europe.

It covers -

• introduction
• United Kingdom and Eire
• France
• Germany and Austria
• the Netherlands and Belgium
• Denmark, Norway, Sweden and Finland
• Spain, Portugal, Italy and Greece

     introduction

As noted in the first page of this profile, overseas legislation and practice regarding blasphemy takes several forms.

Several jurisdictions feature explicit prohibitions on blasphemous publication and private speech (eg Pakistan) or rely on commmon law, although there have been few successful prosecutions in recent years. Prohibitions generally relate to a particular creed or an established church and thus do not cover all faiths.

Other jurisdictions have formally abolished the offence of blasphemy or blasphemous libel.

Although the interpretation of historic and recent case law is problematic, there is some movement towards use of hatespeech legislation rather than specific blasphemy provisions in criminal or other codes in restricting expression that might offend adherents of a particular faith/organisation or incite hostility to those adherents.

The International Covenant on Civil & Political Rights - noted in our discussion of human rights - provides for positive and negative rights regarding freedom of religion, essentially through restraints on the state.

Article 18 indicates that

1. Everyone shall have the right to freedom of thought, conscience and religion.This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.

Article 20 indicates that

2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

     UK and Eire

As of December 2004 English common law features an offence of blasphemy, although there are recurrent suggestions that it should be superseded by protection under anti-vilification statutes.

Protection relates to the established Church of England rather than all religious beliefs and organisations. It was characterised as encompassing any publication that

contains any contemptuous, reviling, scurrilous or ludicrous matter relating to God, Jesus Christ or the Bible, or the formularies of the Church of England as by law established. It is not blasphemous to speak or publish opinions hostile to the Christian religion, or to deny the existence of God, if the publication is couched in decent and temperate language. The test to be applied is as to the manner in which the doctrines are advocated and not to the substance of the doctrines themselves

Three salient contemporary cases are the 1970s 'Gay News Case' (Whitehouse v Lemon) about publication of a 'blasphemous' poem, litigation regarding Salman Rushdie's Satanic Verses and censorship of the Visions of Ecstasy film.

In the first case Mary Whitehouse (1910-2001) of the Festival of Light initiated a private prosecution - later taken over by the Crown - against UK magazine Gay News for publishing Professor James Kirkup's poem The Love That Dares to Speak Its Name regarding the body of Christ.

In 1979 the House of Lords affirmed a jury's decision to convict the editor and publisher - who were fined rather than imprisoned - despite arguments that the crime was archaic (with the last conviction in 1922, when John Gott was sentenced to nine months with hard labour for selling blasphemous pamphlets) and that intent to cause offence could not be proven beyond reasonable doubt because the publication was not aimed at a general readership. The Lords held that intent to outrage was unnecessary; it was sufficient to publish material that a jury found blasphemous.

The decision was widely criticised, as were official statements in 2003 that police were considering prosecution of presenter Joan Bakewell for reading the poem aloud during a BBC television broadcast. In 1997 the police announced that no charge would be to be brought over a UK group's hyperlink to a US site that featured the poem.

The narrowness of protection - and arbitrariness of prosecution - was demonstrated in Regina v Chief Metropolitan Stipendiary Magistrate ex parte Choudhury, with a ruling in 1990 that the offence of blasphemy does not extend to Islam or faiths other than Christianity. A private prosecution thus could not be brought against Salman Rushdie for The Satanic Verses.

The Choudhury ruling followed the 1985 report by the Law Commission (a counterpart of the ALRC) that recommended abolition of the common law offences of blasphemy and blasphemous libel, characterising them as an unnecessary part of a modern criminal code.

The Law Commission noted that unbelievers or adherents to other religious creeds did not have the same privileged status as the established church. In a reflection of comments that a deity does not need protection from man it commented that

Ridicule has long been an acceptable means of focusing attention upon a particular aspect of religious practice or dogma which its opponents regard as offending against the wider interests of society ... in that context use or abuse of insults may well be a legitimate means of expressing a point of view upon the matter

A similar stance was taken in the 2003 report of the House of Lords Select Committee on Religious Offences. Rowan Atkinson commented in 2005 that

For telling a good and incisive religious joke, you should be praised. For telling a bad one, you should be ridiculed and reviled. The idea that you could be prosecuted for the telling of either is quite fantastic.

The importance of discretion in interpretation following Gay News was highlighted in the 1989 decision by the British Board of Film Classification (BBFC) to deny a classification to the video of Nigel Wingrove's Visions of Ecstasy on the ground that it was blasphemous. The film concerns 16th century mystic St Teresa of Avila, whose eroticised language had attracted attention from her contemporaries (including the Inquisition) and later scholars with exemplary credentials.

Wingrove applied to the European Court of Human Rights, claiming that the ban breached Article 10 of the European Convention of Human Rights as disproportionate to the aim of protecting the public, but received no satisfaction on the ground that denial was consistent with UK law.

In November 2007 Stephen Green of evangelical group Christian Voice went to the English High Court seeking the right to bring a private prosecution for the common law offence of blasphemous libel. He had applied in the City of Westminster magistrates' court in 2006 to prosecute BBC Director-General Jonathan Thoday and producer Mark Thompson over a 2005 broadcast of musical Jerry Springer - The Opera. Green applied two years after the broadcast for a summons to bring the prosecution but was refused, prompting an appeal to the High Court, which ruled that the musical "was not and could not reasonably be regarded as aimed at, or an attack on, Christianity or what Christians held sacred". Green responded

I'm really sympathetic to the freedom of speech argument. But blasphemy is not a matter of free speech, it's people going out of their way to offend almighty God.

In Scotland the "uttering of profanities against God or the Holy Scriptures in a scoffing manner out of a reproachful disposition" is a common law offence. There have been no recent convictions (the last reported prosecution for blasphemy was in 1843) and as in England some religious leaders have suggested that special protection is not required. Uncertainty about the scope for prosecution and conviction has arguably deterred some publication.

Article 40.6(1)i of Eire's 1922 Constitution provides that "publication or utterance" of "blasphemous matter" is an offence punishable in accordance with law, with Article 44 stating that

The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.

The Constitution does not define blasphemy, although standard reference works characterise it as

the crime which consists of indecent and offensive attacks on Christianity, or the Scriptures, or sacred persons or objects calculated to outrage the feelings of the community. The Constitution declares that the publication or utterance of blasphemous matter is an offence which shall be punishable in accordance with law ... The mere denial of Christian teaching is not sufficient to constitute the offence

Article 8 of the Constitution however specifies that

Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen, and no law may be made either directly or indirectly to endow any religion, or prohibit or restrict the free exercise thereof or give any preference, or impose any disability on account of religious belief or religious status

Section 13.1 of the Defamation Act 1961, provides that

Every person who composes, prints or publishes any blasphemous ... libel shall, on conviction thereof on indictment, be liable to a fine not exceeding five hundred pounds or to imprisonment for a term not exceeding two years or to both such fine and imprisonment or to penal servitude for a term not exceeding seven years

Under section 13(2) the court may make an order for seizure and detention of all copies of the libel in the possession of the person or another person named in evidence on oath. In pursuance of such an order, a member of the Garda Siochana may enter if necessary by force and search buildings for copies of the libel.

The Act was used in the unsuccessful prosecution in 1999 of a newspaper publisher (Corway v. Independent Newspapers (Ireland) Limited). Provision for returning such copies in the event of a successful appeal of conviction is made in section 13(3).

Eire's Prohibition of Incitement to Hatred Act 1989 prohibits publication of material designed to stir up "hatred", including hatred against a group on account of religious affiliation.

The 1991 Law Reform Commission of Ireland consultation paper On The Crime of Libel suggested that "there is no place for the offence of blasphemous libel in a society which respects freedom of speech". Because blasphemy as an offence could not be abolished without a constitutional referendum the Commission recommended creation of a new statutory offence of blasphemous libel, which would cover matter "the sole effect of which is likely to cause outrage to a substantial number of adherents concerning a matter or matters held sacred" by a religion.

     France

French legislation on blasphemy was expunged during the Revolution, reinstated under the Restoration and again removed during the late 1830s. There is no current law explicitly forbidding blasphemy, with activists instead relying on enactments regarding incitement of public unrest or offenses against morals.

Article 283 of the Penal Law for example prohibits exhibition of a film contraires aux bonnes moeurs (ie contrary to good morals). In 1988 several groups accordingly sought a ban on Martin Scorsese's The Last Temptation of Christ. In rejecting that application the court noted that the right to respect for beliefs should not interfere in an unjustified manner with artistic creativity. The decision was upheld by the Court of Appeal, which however ordered that all advertisements for Scorsese's film should indicate that it was based on a novel rather than the Gospel.

In 2005 the General Alliance against Racism & for the Respect of French & Christian Identity was unsuccessful in legal action against Liberation over a cartoon of a naked Jesus wearing nothing but a condom. The Alliance argued that newspaper had offended all Christians and "injured their right to practice their religion". The court characterised the portrayal as "crude" but said it did not contravene any laws.

In March 2007 a Paris court ruled that Philippe Val, editor-in-chief of satirical magazine Charlie Hebdo, was innocent of the charge of making "public insults against a group of people because they belong to a religion" in relation to a drawing that represented Muhammad wearing a turban with a bomb. The court commented that "the drawing, taken on its own, could be interpreted as shocking for followers of this religion [Islam]" but had to be seen in the wider context of the magazine examining the issue of religious fundamentalism. Therefore, even if the cartoon was "shocking or hurtful to Muslims, there was no deliberate intention to offend them".

     Germany and Austria

Prior to 1933 Germany featured prosecutions of 'disturbers of the peace' such as artist Georg Grosz (1893-1959) under the 1871 national criminal code, which identified blasphemy as crime with three year prison sentence. Artist Franz Herzfeld (1862-1908), father of Wieland Herzfeld and John Heartfield, was sentenced in 1895 to 12 months in prison.

The same moral panic during that year saw playwright Oscar Panizza (1853-1921) imprisoned in Bavaria for a year over his play Das Liebeskonzil. Sadly, the European Court of Human Rights in 1993 upheld an an Austrian court decision of 1986 banning a film based on the play.

The current German federal regime emphasises protection of public order, with some latitude in interpretation by lower courts, and protection for artistic expression.

Updating of the federal penal code in 1969 saw deletion of references to protection of God and His institutions, with the offence of blasphemy being replaced by a broader offence of disturbing the peace through ridicule of faiths (Bekenntnisse) and ideological groups (Weltanschauungsvereinigungen). In practice those faiths appear to be equivalent to Christian denominations recognised under Germany's church tax scheme and do not encompass Islam, Scientology or Hinduism.

Item 166 of the code concerns the ridicule of faiths, religious societies and ideological groups -

1) Whoever publicly or by means of spreading written material insults religious or world view in a manner that could reasonably be deemed able to disturb the public peace, is to be punished by up to three years in prison or a fine.

2) Whoever publicly or by means of spreading written material ridicules a domestic church, religious society or ideological group, its facilities or customs in a manner deemed able to disturb the public peace, is to be punished similarly.

The "manner and content" of that insult must be such that an objective onlooker could reasonably assume that the ridicule would disturb the peace of those who share the insulted belief, with the offender intending (or being aware) that the ridicule constituted an offence.

In practice prosecution has tended to involve stress and expense for defendants but has not resulted in significant convictions. In 1981 the Cologne Penal Court of Appeal in a case initiated by Cardinal Meissner held that an abortion-rights caricature "did not in all circumstances show hostility against Christians" although parodying Mary and Joseph. Four years later the Karlsruhe Court of Appeal ruled that a sarcastic article which regarding the Last Supper was not an insult.

The Berlin Tageszeitung was acquitted in 1987 after prosecution by the Roman Catholic bishop of Berlin for a satirical article. A 1988 case in Bochum featured the broader ruling that a leaflet, although insulting about the Vatican, was unlikely to disturb the peace. More recent cases have involved unsuccessful prosecution of parodies of Pope John Paul II. In 2006 former prisoner 'Manfred van H' received a suspended sentence of a year in prison and 300 hours of community service after printing 'Koran, der Heilige Qur'än' on toilet paper and distributing it to the media and mosques.

Prosecution has been more active in Austria, arguably reflecting that nation's conservative courts (evident in defamation cases). Articles 188 and 189 of the criminal code are similar to the German penal code in prohibiting insult that will undermine public order. The legislation does not appear to have been applied to what one jurist characterised as "minority faiths". Recent litigation includes the 1986 decision by a court to ban production of a film based on Panizza's Das Liebeskonzil.

     the Netherlands and Belgium

Article 147 of the Netherlands Penal Code - reportedly introduced in 1932 to curb a communist newspaper that advocated banning Christmas - identifies "scornful" blasphemy as a criminal offence. The offence is restricted to expression regarding the Christian deity and does not extend to Christian saints and other revered religious figures or non-Christian deities.

There is an expectation that the person making the expression must have had a "scornful" (smalend) intention: although it might be objectively foreseeable that people would be aggrieved there is no offence if the expression was without malicious intent.

That intent requirement was confirmed in the last major blasphemy case in the Netherlands, regarding Nader tot U [Nearer to Thee], a novel in which Gerard van het Reve (1924-2006) depicted God as a donkey and then further outraged the faithful by discussing intercourse with the beast. Reve was acquitted in 1968 after the prosecution failed to prove that his intent was to be scornful.

The Foundation for Dutch Roman Catholics reportedly initiated but did not proceed with legal action against the Dutch Animal Rights Organisation in 2002 over a "Merry Christmas - don't be wild about it!" poster that featured the Virgin Mary holding a bleeding rabbit, reflecting the appearance of baked rabbit on Dutch menus as a Christmas Dinner treat.

Belgium does not criminalise blasphemy as such. Article 144 of the Penal Code identifies a restricted offence of religious insult, involving those who offend the objects of religion in places of religious worship or at public religious celebrations. That protection is inapplicable to offences outside the context of a religious celebration or a place of worship.

However, other parts of the Code have been applied to works defaming religion or that offend public morals (eg articles 383-386). The Court of Appeal of Ghent ruled in 1988 that artists had violated Article 383 by displaying 14 large Stations of the Cross - including the usual gimmick of a tumescent Christ - in the heart of Ghent.

The Court noted that public display in the historic centre meant that a large public would inevitably encounter the paintings without consent. If viewing was consensual the offense to morals would be less serious and courts of appeal in Mons and Brussels during the 1990s accordingly refused to ban particular works. The Mons Court of Appeal noted that although a majority of individuals may find certain images offensive other adults should be permitted to view them if they have expressed their willingness to do so.

     Denmark, Norway, Sweden and Finland

Prohibition of blasphemy under Section 140 of the Danish Penal Code has not been used since 1938.

The code also features an offence of expressions that threaten, deride or degrade on the grounds of race, colour, national or ethnic origin, belief or sexual orientation. However, that provision does not appear to have been used against statements offensive to religion, with works by artist Jens Jørgen Thorsen (including the inevitable tumescent Jesus) recently gaining attention but no time in the joint.

The Danish government commented in 2006 that satirical depictions of the Prophet Muhammad in the Jyllands-Posten newspaper were protected as free speech; civil action by critics of the depictions was unsuccessful.

Section 142 of the Norwegian Penal Code provides for punishment for any person who

publicly insults or in an offensive manner shows contempt for any religious creed ...or for the doctrines or worship of any religious community lawfully existing here.

That provision has not been applied by the courts since the acquittal of poet Arnulf Øverland (1889-1968) in 1936 after a lecture titled 'Christianity - the tenth plague'. Islamic community leaders initiated a suit against the publisher of The Satanic Verses but did not proceed, supposedly in recognition that success was unlikely.

In Sweden a general crime of blasphemy was abolished in 1949, with abolition of a narrower offence of religious insult in 1970. It had been used in prosecution of a range of offenders, for example fin-de-siecle socialist Hjalmar Branting (1860-1925), imprisoned in 1888. Branting was instrumental in establishment of the Social Democratic Party during the following year, was its first Member of Parliament from 1896, Prime Minister from 1920 and recipient of the Nobel Peace Prize in 1921.

Finland retains a general offense of blasphemy under chapter 17 of its penal code. The last major prosecutions were in 1966 - with conviction of Hannu Salama for his 1964 novel Juhannustanssit - and 1969 over the 'Pig Messiah' painting by artist Harro Koskinen.

The novel, which went through several printings during the course of litigation in the Helsinki Municipal Court and the Court of Appeals, was suppressed - a copy was supposedly publicly burnt - before being rereleased in a censored version in 1966. Salama was briefly imprisoned but pardoned by President Kekkonen in 1968; the director of the publishing company was fined and both were ordered to "surrender all economic benefit derived from the crime". The novel was republished in its original form in 1990, having been translated into Swedish, Norwegian, German, Danish and Polish.

Provisions against blasphemy were updated in 1999 and have been periodically used since that time to supplement other law. In 2005, for example, the Tampere District Court fined a man under telecommunications and blasphemy law for recurrently 'bombing' a religious chat room with messages, including some of a blasphemous character (eg associating religious practices in a pejorative manner with sexual activities). The offender was additionally ordered to compensate the chatroom operator and had his computer confiscated.

     Spain, Portugal, Italy and Greece

In Spain the crime of blasphemy (reinstated in the 1930s after overthrow of the Republic) was abolished as part of post-Franco reforms in 1988. Portugal's legislation was changed in the 1990s.

Spain's Constitutional Court has however ruled that freedom of expression under Article 20 of the Constitution is circumscribed by restrictions for the protection of the "rights of others" - interpreted as an identified individual directly affected by an offensive expression - or other constitutionally protected interests. Commentators have suggested that obscenity or another broad offence to morals, particularly expression sighted by minors on a non-restricted basis (eg on public view rather than to consumers choosing to visit a gallery or a cinema) would provide a mechanism for restricting blasphemous content.

As with Portugal there appears to be no major no case law regarding offenses against the Roman Catholic church, other Christian communities or other religious faiths.

Articles 402 through 406 of the Italian criminal code, reflecting the 1920s concordat with the Vatican, prohibit "offence to religion", including offence to religion during a satirical or other performance, even where the offending performance was objectively aimed at arousing laughter or amusement. A recent prosecution involved the 2000 film Totò che visse due volte.

There is uncertainty whether Italian laws against insult to religion - and the application of the legislation - relate only to Roman Catholicism. Prosecutions over the past thirty years - and administrative action such as hacking by Italian police of an anti-Vatican site in 2005 - appear to have been bundled with restrictions on obscenity as offences against public morals. Article 724 of the criminal code covers the minor offence of "words insulting to religion" (bestemmia).

Greece's blasphemy regime allows prosecution for creation, display or trade in work that "insults public sentiment" or "offends people's religious sentiments", with offence being restricted to Christian faiths.

Recent instances have included the prosecution of leading curator Christos Ioakimidis, highlighted on the preceding page of this profile, and conviction in absentia of Austrian author Gerhard Haderer for depicting Christ as a hippy in his comic book The Life of Jesus. Haderer was given a six months suspended sentence in 2005.

  next page  (US and Canada)