By Dr. Matthijs de Blois, Senior Fellow, and Andrew Tucker, Director at thinc.

Commentary on the case of Baldassi and others vs. France , ECHR 11 June 2020

Summary: The European Court of Human Rights (ECt.HR) has ruled that calls for boycott of Israeli products are justified under European human rights law. This case raises serious policy issues. BDS activities are at their core discriminatory and anti-Semitic, and should be prohibited – as they are in several countries. In this note we focus on the Court’s ruling. In a forthcoming note we will provide for the wider perspective by a critical discussion of the BDS-campaign and the failure of the Court to take this seriously.

Introduction

Baldassi and others took part in a BDS-movement inspired campaign at a supermarket in the village of Illzach (Alsace) calling on customers to boycott Israeli products. They distributed a leaflet stating that buying products imported from Israel means a legitimization of the crimes committed in Gaza. Some of the leaflets even alleged that Israel is an “assassin” and the supermarket is an accomplice. The activists were prosecuted for provoking discrimination of a group of people on the basis of their nationality, but acquitted by the Tribunal correctional de Mulhouse. On  appeal they were convicted by the Cour d’appel de Colmar. Their appeal to the Cour de Cassation in Paris was rejected. They submitted an application to the European Court of Human Rights (ECt.HR) in which they complained of a violation of the Articles 7 (principle of legality) and 10 (freedom of expression)  of the European Convention on Human  Rights (ECHR). The Court by majority held that Article 7 was not violated; the activists were convicted on the basis of pre-existing legislation of which they could be aware. The Court was, however, unanimous in concluding that Article 10 of the Convention had been violated. We will focus below on the reasoning of the Court that led to this conclusion.

Article 10 ECHR

The text of Article 10 ECHR reads as follows:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television, or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

The debate before the ECt.HR was not about the applicability of Article 10 – the conviction of the applicants by the Colmar Court of Appeal was indeed an infringement of the freedom of expression. But the question was whether this infringement could be justified under Article 10 paragraph 2 ECHR, which provides for the possibility to restrict the freedom of expression, for example to protect the rights of others, in this case the producers and providers of Israeli products. It is not only necessary to identify an interest prescribed by law that possibly outweighs the exercise of the freedom of expression, but the restriction should also be “necessary in a democratic society”.

The Willem vs. France case

Before we look into the Court’s ruling in the Baldassi case we point at a previous case concerning a boycott of Israeli products in which the Court concluded that a restriction on the freedom of expression could be justified. This Willem vs. France  case (ECt.HR 16 July 2009) concerned a mayor of a French municipality who had called on the municipal services to boycott Israeli products. His conviction because of discrimination was in his view contrary to the freedom of expression. The Court concluded by a majority that the restriction of this freedom could be justified for the protection of the rights of others (the Israeli producers).

The Baldassi judgment

In the Baldassi case the Court concluded however that there was a violation of Article 10 ECHR that was not justified under paragraph 2.

The Court found reasons in the facts of Baldassi to distinguish this case from Willem vs. France. The Court’s main reason was the fact that the applicants were ordinary citizens and not public officials who had to observe a certain neutrality.

The Court found that the applicants were never convicted for racist or anti-Semitic remarks, and that their actions did not cause any violence or damage in the supermarket (para. 71). A striking aspect of the judgment is the importance the Court attaches to the motives of the applicants, namely that the actions of the applicants concerned respect of the State of Israel for public international law and the situation of human rights in the “occupied Palestinian territories”. The respect of public international law by Israel and the human rights situation in the Occupied Palestinian Territory (OPT) is a subject of general interest, which forms part of the contemporary debate taking place in France as it is taking place in the entire international community. Since the actions and statements of the applicants were political and militant in nature, they were particularly protected by Article 10 and could be limited only in exceptional circumstances (para. 78).

The ECt.HR observed that the exercise of the freedom of expression in the framework of a political debate may rarely be restricted. In the view of the ECt.HR the French court (of Colmar) failed to establish that the restriction of the freedom of expression of the applicants was necessary in a democratic society insofar as French law prohibits any call for a boycott  of products because of their geographic origin, without taking into account the content of the call, its motives, or the specific circumstances in which it is made (para. 75).

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