Model Training Materials: Hate Speech, Defamation and National Security Typically, debate and discussion of historical facts and events is strongly protected under the right to freedom of expression.43 Public discussion of serious human rights violations and atrocity crimes such as genocide is of particular importance, given the high public interest in raising awareness of such events and ensuring they do not recur in the future. For this reason, laws which restrict debate about genocide, crimes against humanity or similar atrocities are likely to raise freedom of expression concerns. However, in some very limited circumstances, genocide denial may take a form which constitutes hate speech. A conviction under a carefully crafted genocide denial law, particularly one focused on Holocaust denial, may conceivably pass the Article 19(3) test. In Faurisson v. France, the Human Rights Committee considered the case of an academic who was fined under a French law which criminalised questioning actions of the Nazi regime which courts had held constituted crimes against humanity. The conviction was based on comments made by the academic which denied the existence of Nazi gas chambers for extermination purposes. The Committee held that this form of Holocaust denial was the “principal vehicle” for anti-Semitism in France and that the conviction was accordingly necessary to protect the rights of the Jewish community to live free from fear of antiSemitism.44 The European Court of Human Rights has also generally accepted that convictions for Holocaust denial are valid.45 On the other hand, the European Court’s Grand Chamber has indicated that Holocaust denial may be a special case. In Perinçek v. Switzerland, the Court found that a Swiss prosecution of a Turk for denying the Armenian genocide violated his right to freedom of expression. The Grand Chamber’s decision rested on a number of factors but the Court indicated that it treats Holocaust denial cases distinctly as a category. For example, the Grand Chamber acknowledged that statements about traumatic events impacting a group could be sufficiently harmful to the dignity of that group to justify a restriction on freedom of expression. However, it suggested that in such cases a specific showing of that harmfulness would be required (in this case, it found such harm had not been shown). Distinguishing the Holocaust denial cases, the Grand Chamber suggested that Human Rights Committee, General Comment No. 34, 12 September 2011, para. 49. See also Lehideux and Isorni v. France, 23 September 1998, Application No. 24662/94 (European Court of Human Rights), and Committee on the Elimination of Racial Discrimination, General Comment No. 35, note 24, para. 14. 44 Faurisson v. France, 8 November 1996, Communication No. 550/1993, paras. 9.6-9.7, https://juris.ohchr.org/search/details/654. 45 See, for example, Garaudy v. France, 24 June 2003, Application No. 65831/01 and Honsik v. Austria, 18 October 1995, Application No. 25062/94, https://hudoc.echr.coe.int/eng?i=001-2362. Note that the European Court often treats Holocaust denial speech as being removed from the protection of Article 10 of the European Convention on Human Rights (which protects freedom of expression) by the “abuse of rights” provision in Article 17 of the Convention. 43 The Centre for Law and Democracy is a non-profit human rights organisation working internationally to provide legal expertise on foundational rights for democracy. 12