«In democratic and globalised societies, it becomes increasingly difficult to create and to keep an index of prohibited books»
To forbid or not to forbid books is still a question
by Francisco Teixeira da Mota
The European Court of Human Rights has pronounced itself several times already about the prohibition of books, issued in countries that are members of the European Convention on Human Rights, and it is worthwhile to learn about its decisions.
The first case that anyone can remember was the famous case of the Little Red School Book which was forbidden in England in 1971, after having already been published in several other countries. The English courts decided that statements like “Maybe you smoke hashish or lie down with your boyfriend or girlfriend without telling your parents nor your teachers because you don’t dare to, or simply because you don’t feel like talking about it. When you do things that you really feel like doing and enjoy them, don’t feel guilty or ashamed just because your parents or your teachers may disapprove of them. Many of them will be more important to you in life than those that are approved”, or “Pornography is a harmless pleasure as long as it is not taken seriously and as long as one does not think it matches real life. Whomever mixes it up with reality will be deeply disappointed. But it is also quite possible that you get good ideas (from pornography) and that you discover things that look interesting and that you haven’t tried yet”, fell under the scope of the Obscene Publications Act . In 1976, the European Court of Human Rights considered that said prohibition did not violate freedom of expression as it is consecrated in article 10 of the European Convention on Human Rights, taking into account the argument that was invoked by English authorities: moral protection, namely of young people.
In 2005, in the case of I. A. against Turkey, in a very split decision (4 votes in favour and three against, one of them by Portuguese judge Irineu Cabral Barreto), the European Court of Human Rights once more considered that it is acceptable, under the exceptions that are consecrated in the European Convention on Human Rights, for Turkey to prohibit a romance, and to condemn its author to a prison sentence that could be changed into a fine, because it considered the book to be blasphemous.
According to the opinion of a majority of the judges, the prohibition of the book was justified because the expressions used in the book were not merely offensive, shocking or provocative, but rather constituted “an abusive attack against Islam’s Prophet”. Thus the prohibition sought to prevent “offensive attacks against matters that are considered to be sacred by Muslims”, taking into account that the European Court of Human Rights had also previously accepted restrictions on freedom of expression in the defence of religious views, in these cases to protect Christian populations, in the cases of Otto-Preminger-Institut (1994) v. Austria and Wingrove v. the United Kingdom (1996).
On the other hand, in the case of Plon versus France, in 2004, the European Court of Human Rights considered that France had violated freedom of expression as it is consecrated in the European Convention on Human Rights, by forbidding the distribution of the book The Big Secret, written by a journalist and by the personal physician of president Miterrand, published after his death, which revealed the cancerous disease that he suffered from shortly after his re-election in 1981, which had been carefully hidden despite the half-yearly publication of health bulletins. The family had managed, first within the scope of an injunction, and later in a common action, to prohibit and to maintain the prohibition over the book’s distribution. For the European Court of Human Rights, the provisory prohibition, following the book’s publication ten days after Mitterrand’s death, was justified, taking into account the violation of medical secrecy and the damage that had been inflicted on the deceased’s reputation and the suffering that had been inflicted on the family by exposing him as someone who had lied to the people that had elected him.
Nonetheless, the European Court of Human Rights did not consider that it was legitimate to maintain said prohibition, when the court decided to uphold it nine months after Miterrand’s death: the doctor’s civil and professional responsibility had already been investigated, thousands of copies of the book had already been seized and copies of the book were circulating on the internet, hence the matter of medical secrecy had been surpassed and there was no “imperious social need” to uphold the prohibition. Therefore, the European Court of Human Rights considered that France had violated freedom of expression.
In the cases of The Observer & Guardian Newspapers Ltd. versus the United Kingdom (1991), in which the publication of excerpts from the book Spycatcher, written by Peter Wright, an MI5 spy, the European Court of Human Rights made a similar disctinction, because its publication put national security at stake. The Court considered that the injunction that had been issued by the English courts, between July 1986 and July 1987, did not represent a violation of article 10 of the European Constitution for Human Rights, but from that date onwards, with the book being published in the United States, it considered that the maintenance of the prohibition was no longer justified, and declared that the United Kingdom had violated article 10 of the European Constitution for Human Rights.
In 2001, in the case of Ekin Association versus France, the European Court of Human Rights considered that the Home Ministry's prohibition against the circulation of a book that, according to French authorities, promoted Basque separatism and defended the use of violence, thus representing a threat against public order, was not justified under the Eurpoean Constitution for Human Rights, and was an excessive measure.
In democratic and globalised information societies like, to a greater or lesser degree, the societies of the countries that are members of the European Counsel, it becomes increasingly difficult, both in terms of legitimacy and in terms of effectiveness, to create and to keep and index of forbidden books.
Published in Público Newspaper on 16/01/10 - from A Torto e a Direito
also recommended: Segredos da Justiça e o TEDH