Introduction
Freedom of expression is one of the cornerstones of a democratic society. It is essential for individuals to be able to express their thoughts, for public opinion to be shaped freely, and for the preservation of political pluralism. The European Court of Human Rights (ECtHR) protects this right not only for ideas that are widely accepted, but also for those that are “offensive, shocking or disturbing.” However, freedom of expression is not an absolute right. Its exercise may be restricted when it threatens the rights of others, social peace, or the fundamental principles of democratic order.
Hate speech is one of the most controversial areas where the limits of freedom of expression come into play. Such expressions often promote discrimination, hostility, and even violence against minorities. Therefore, the boundary between freedom of expression and hate speech becomes a complex matter not only in legal terms, but also in ethical and societal dimensions. The European Court of Human Rights plays a key role in maintaining this balance when assessing whether expressions alleged to constitute hate speech fall within the scope of Article 10 of the Convention.
The Court’s case law does not merely delineate the boundaries of freedom of expression; it is also directly linked to broader societal goals such as combating discrimination, safeguarding social peace, and fostering a culture of tolerance. Within this framework, the Court’s position that certain expressions are incompatible with the foundations of a democratic society and should therefore fall outside the scope of protection is grounded in the understanding that tolerance and equal human dignity are indispensable elements of democratic pluralism (Weber, 2009).
Although the term “hate speech” frequently appears in the Court’s case law, the ECtHR has not developed a precise or binding definition of it. Instead, it has adopted an autonomous interpretation, assessing expressions that disseminate hatred, intolerance or hostility—particularly when based on religion or ethnicity—within their specific context (Gündüz v. Turkey, 2003). In doing so, the Court has drawn on definitions such as that in Recommendation No. R(97)20 of the Council of Europe, which defines hate speech as “all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance.” Reflecting this approach, the Court has at times classified certain statements as hate speech even when domestic courts did not (e.g. Sürek v. Turkey), while in other cases it has found national courts’ hate speech assessments overly restrictive and granted broader protection under Article 10 (e.g. Erbakan v. Turkey).
The ECtHR’s approach to hate speech has evolved over time, exhibiting a diverse and context-sensitive character rather than a strict periodisation. This evolution is best understood not through rigid chronological phases, but through the different legal approaches the Court adopts depending on the facts of each case. In some judgments, the Court excludes certain hate speech entirely from the scope of protection under Article 10. In others, it grants broader protection by considering the context of the expression, the speaker’s intent, and the contribution to public debate. Additionally, in cases where the dignity and psychological integrity of the targeted individuals are at stake, the Court has held that States may have a positive obligation to restrict such expressions in order to protect those rights.
For instance, in cases involving direct denial of historical traumas such as the Holocaust, the Court has excluded the impugned statements from the protection of Article 10 by applying Article 17, on the grounds that such expressions are incompatible with the fundamental values of the Convention (Garaudy v. France, 2003). In contrast, in cases involving politically charged historical discourse, the Court has opted for a more speech-protective stance, giving weight to context and the speaker’s intent (Perinçek v. Switzerland, 2015). More recent judgments show a further shift: the Court has started to impose positive obligations on States under Articles 8 and 14 to protect individuals targeted by hate speech, particularly in terms of their dignity, security, and psychological well-being (Minasyan and Others v. Armenia, 2025).
This paper examines the case law of the European Court of Human Rights on hate speech through three main approaches: the bad tendency approach, the incitement approach, and the positive obligations approach focused on protecting targeted individuals. It aims to assess to what extent these approaches are applied consistently, predictably, and in a manner compatible with the core values of a democratic society.
1. Bad Tendency Approach: Hypothetical Prohibition Based on Future Harm
One of the earliest approaches that emerged in the ECtHR’s hate speech jurisprudence is the “bad tendency” approach. It is based on the assumption that certain expressions, even if they do not cause immediate or concrete harm, may incite discrimination, violence, or social hostility in the future. The origins of this approach can be traced back to the “bad tendency” test in Anglo-American law, which primarily focuses on the potential of speech to disrupt public order (Sottiaux, 2011; Sottiaux, 2022).
The European Court of Human Rights first explicitly adopted this approach in the cases of Féret v. Belgium (2009) and Le Pen v. France (2010). Both cases concerned far-right politicians who disseminated anti-immigrant, Islamophobic, and discriminatory messages through political propaganda. The Court held that such expressions were not protected under the right to freedom of expression, as they posed a risk of “polarizing society, increasing intolerance, and legitimizing discrimination.”
The most striking feature of this approach is that it does not require a clear demonstration of incitement or intent. The Court considers the potential of such speech to provoke fear and hatred—particularly among less informed segments of the public—as sufficient grounds for restriction. In Féret, for instance, the leaflets in question did not contain an explicit call to violence; however, the Court found that the language used portrayed immigrants as a “criminal” threat and could therefore undermine public order. Similarly, in Le Pen, the statement “once there are 25 million Muslims, they will be in control” was excluded from protection on the grounds that it generated a perception of threat based on religious identity (Alaburić, 2015; Weber, 2009).
In later years, the bad tendency approach has also been applied in cases involving homophobic speech (Vejdeland v. Sweden, 2012; Lilliendahl v. Iceland, 2020), xenophobic statements (Atamanchuk v. Russia, 2021; Sanchez v. France, 2021), and speech related to terrorism (Altıntaş v. Turkey, 2020; Bayar and Gürbüz v. Turkey, 2019). In these judgments, the Court emphasized that statements may qualify as hate speech even if they do not contain an explicit call to violence, as long as they are deemed discriminatory or prejudiced. Notably, in Vejdeland, the Court ruled that describing homosexuality as a “moral downfall” in leaflets distributed to high school students was, in itself, sufficient to constitute hate speech (Sottiaux, 2022; Alkiviadou, 2018).
Similarly, in Sanchez v. France, a mayor’s failure to remove Islamophobic comments from his social media page was not found to constitute a violation, as the Court held that an “implicit intent to endorse” such comments could be inferred. In Z.B. v. France, dressing a young child in a T-shirt bearing the slogans “I am a bomb” and “Jihad, born on 9/11” was excluded from the protection of freedom of expression—even though it did not involve an explicit call to violence—on the grounds that it glorified terrorism (Sottiaux, 2022; Fedele, 2020).
The bad tendency approach represents the lowest threshold for limiting freedom of expression. The Court’s reliance on a preventive logic that censors speech based on its “dangerous” potential—often without a thorough contextual analysis or consideration of the speaker’s intent—has drawn significant academic criticism. Particularly in terrorism-related cases, the punishment of journalists merely for relaying certain views has been seen as inconsistent with the Court’s earlier stance on press freedom, as established in Jersild v. Denmark. This has raised concerns about the erosion of journalistic protections (Ó Fathaigh & Voorhoof, 2019; Alkiviadou, 2025).
A review of dissenting opinions in relevant judgments reveals that some judges have also acknowledged the criticisms directed at the bad tendency approach. In this regard, the dissenting opinion of Judge András Sajó in Féret v. Belgium—a key case where this approach was applied—deserves particular attention:
“Content regulation and content-based restrictions on speech are based on the assumption that certain expressions go ‘against the spirit’ of the Convention. But ‘spirits’ do not offer clear standards and are open to abuse. Humans, including judges, are inclined to label positions with which they disagree as palpably unacceptable and therefore beyond the realm of protected expression. However, it is precisely where we face ideas that we abhor or despise that we have to be most careful in our judgement, as our personal convictions can influence our ideas about what is actually dangerous.”
2. The Incitement Approach: Balancing Content, Intent, and Context in Determining Responsibility
The second major approach that has gradually gained prominence in the ECtHR’s hate speech jurisprudence is the “incitement” test. Unlike the bad tendency model, this approach shifts the focus from merely harmful tendencies or offensive language to whether the expression directly advocates unlawful action and whether there is a real likelihood of such action occurring. In this respect, it closely resembles the “clear and present danger” standard formulated by the U.S. Supreme Court in Brandenburg v. Ohio (Sottiaux, 2022; Buyse, 2014).
The incitement approach first appeared in the 1990s in cases concerning freedom of expression in the context of terrorism. In Zana v. Turkey and Sürek (No. 1) v. Turkey, the Court assessed whether the expression contained a call to violence and considered the potential impact of such a call within its broader context. For instance, in Sürek (No. 1), the Court found that letters published in a magazine, which used terms like “massacre” and “gang of murderers,” amounted to incitement to violence when evaluated in light of their context and the intent behind them.
Within this approach, the ECtHR places significant emphasis not only on the content of the expression, but also on contextual factors such as the medium through which it was disseminated, the public standing of the speaker, the target audience, and the overall sensitivity of the social environment. For example, in Gül and Others v. Turkey, the Court held that the applicants’ freedom of expression had been violated, as the protest—although it included radical slogans—was peaceful in nature and had limited impact (Sottiaux, 2022).
Similarly, in Savva Terentyev v. Russia, the Court examined a blog post containing harsh insults directed at the police. It held that the statements could be understood as a provocative metaphor and an emotional reaction, and concluded that there was no “imminent and likely threat.” On this basis, the Court found a violation of the applicant’s right to freedom of expression.
However, the Court has not always referred to the “imminence” requirement in a consistent manner. For instance, in Kilin v. Russia, despite the absence of an explicit call to violence or a clear and imminent threat, the Court found no violation of Article 10. This was based on the speaker’s presumed intent and the potentially influential nature of the content on radical groups.
Furthermore, in Tagiyev and Huseynov v. Azerbaijan, the domestic court’s decision to classify provocative statements about Islam as incitement to hatred was found insufficient by the ECtHR. The Court emphasized that the national authorities had failed to consider the context, the public interest, and the speaker’s intent (Sottiaux, 2022). It specifically underlined that the speaker’s “intent to provoke hatred” had not been properly examined.
All of these examples demonstrate that the ECtHR seeks to apply a multi-factor test that goes beyond merely harmful tendencies or offensive content. Instead, it focuses on elements such as the expression’s potential to trigger unlawful action and the speaker’s intent. However, since these factors are not applied with the same consistency across cases, it can be argued that a certain degree of unpredictability persists within the Court’s case law (Sottiaux, 2022).
In conclusion, the incitement approach is generally considered more protective of freedom of expression compared to the bad tendency test, as it applies a narrower criterion. It does not rely solely on potential harm or provocative content, but instead examines whether the expression directly advocates violence or discrimination.
3. Positive Obligations Approach: Protecting Targeted Individuals
The third approach, which has become more prominent in the ECtHR’s recent case law, redefines freedom of expression not merely as a right to be restricted, but as a domain in which States may have a duty to intervene. Within this framework, the focus shifts away from the speaker’s freedom and toward the rights of individuals targeted by hate speech—particularly their dignity, psychological integrity, and personal security (Alkiviadou, 2025; Weber, 2009).
This jurisprudential shift became particularly evident in the case of Minasyan and Others v. Armenia (2025). In that case, the public targeting, vilification, and incitement to discrimination against LGBT+ rights activists by a newspaper was examined by the ECtHR under both the right to respect for private life (Article 8) and the prohibition of discrimination (Article 14). The Court emphasized that the State is not merely a passive guarantor of rights, but also bears an active duty to protect individuals against attacks originating from third parties. In this context, the harms suffered by those targeted by hate speech—such as exclusion from public life, damage to professional reputation, and online harassment—go beyond the abstract realm of free expression and have tangible social consequences.
This understanding of positive obligations had already been established in earlier cases such as Beizaras and Levickas v. Lithuania (2020). In that judgment, the Court held that the State’s failure to provide an effective criminal or administrative response to homophobic comments directed at a same-sex couple on social media was not a matter of free speech, but rather a failure to fulfill its obligation to protect against discrimination (Sottiaux, 2022).
The positive obligations approach marks a significant departure from the classical paradigm of freedom of expression. The issue is no longer limited to restraining the State from interfering with the speaker’s rights, but also extends to recognizing the State’s responsibility in the face of “the silence that renders targeted individuals invisible.” This shift illustrates the ECtHR’s evolving role—not merely as a guardian of negative rights, but as an active balancing actor committed to protecting the most vulnerable segments of a pluralistic society.
On the other hand, this approach also raises concerns from a freedom of expression perspective. Some commentators argue that an overly protective stance by the State may excessively narrow the scope of free speech in the name of “protecting those targeted,” potentially weakening critical public discourse (Alkiviadou, 2025). Moreover, questions remain as to how direct the connection must be between the targeted individual and the need for protection—for example, whether protection can be claimed solely on the basis of perceived group affiliation. In Minasyan, the Court found it sufficient that the individuals were targeted not because they were LGBT+ themselves, but because they advocated for LGBT+ rights. In doing so, the Court expanded the doctrine of “discrimination by association.”
In conclusion, the positive obligations approach demonstrates that the ECtHR has developed a new protective paradigm within its freedom of expression jurisprudence—one that places the rights of targeted individuals at the center. This paradigm considers not only the content of the speech, but also its recipients. While this approach is seen as having the potential to strengthen values such as democratic pluralism, equal citizenship, and social inclusion, it must also be supported by a careful normative framework to guard against the risks of arbitrary censorship and excessive state interference (Sottiaux, 2022; Alkiviadou, 2025).
CONCLUSION
The European Court of Human Rights’ case law on hate speech reflects an ongoing effort to strike a delicate balance between freedom of expression and the fight against discrimination. This effort does not amount to a reflexive prohibitionism that restricts speech solely based on its content, nor does it endorse an absolutist liberalism that protects all forms of expression without exception. Rather, the Court has developed a multi-layered framework of assessment that varies depending on the context of the speech, its target, and its broader social impact.
The bad tendency approach operates on a logic of foresight, aiming to prevent potential dangers before they materialize. The incitement approach, by contrast, applies a narrower threshold by focusing on the direct advocacy of unlawful acts. The positive obligations approach shifts the focus from merely restricting state interference to also addressing the harms that may arise from state inaction, placing individual rights to equality and security at its core. Taken together, these three approaches reveal that the Court does not function solely as a regulator of speech, but also as a guardian of social peace, pluralism, and the rights of minorities.
However, this doctrinal diversity has also given rise to criticisms of unpredictability and inconsistency. Questions such as where to draw the line between freedom of expression and the potential for social harm, or to what extent intent, context, and impact should be taken into account, do not always receive clear and consistent answers in the Court’s case law. For this reason, while the ECtHR aims to protect the vulnerable segments of pluralistic democracies, its approach also requires a careful and context-sensitive balance in order to avoid unduly narrowing a fundamental sphere of freedom.
References:
1. Weber, A. (2009). Manual on Hate Speech. Council of Europe Publishing
2. Sottiaux, S. (2011). ‘Bad Tendencies’ in the ECtHR’s ‘Hate Speech’Jurisprudence. European Constitutional Law Review, 7(1), 40-63.
3. Sottiaux, S. (2022). Conflicting Conceptions of Hate Speech in the ECtHR’s Case Law. German law journal, 23(9), 1193-1211.
4. Alaburić, V. (2018). Legal concept of hate speech and jurisprudence of the European Court of Human Rights. Politička misao: časopis za politologiju, 55(4), 230-252.
5. Alkiviadou, N. (2018). The legal regulation of hate speech: The international and European frameworks. Politička misao, 55(04), 203-229.
6. Fedele, A. (2020). No room for homophobic hate speech under the EHCR: Carl Jóhann Lilliendahl v. Iceland. Strasbourg Observers. Retrieved from https://strasbourgobservers.com/2020/06/26/no-room-for-homophobic-hate-speech-under-the-ehcr-carl-johann-lilliendahl-v-iceland
7. Ó Fathaigh, R., & Voorhoof, D. (2019). ECtHR engages in dangerous triple pirouette to find criminal prosecution for media coverage of PKK statements did not violate Article 10. Strasbourg Observers. Retrieved from https://strasbourgobservers.com/2019/10/14/ecthr-engages-in-dangerous-triple-pirouette-to-find-criminal-prosecution-for-media-coverage-of-pkk-statements-did-not-violate-article-10/
8. Alkiviadou, N. (2025). Hate Speech, Positive Obligations and Free Speech: The ECtHR’s Expanding Framework in Minasyan and Others v. Armenia (2025). Strasbourg Observers. Retrieved from https://strasbourgobservers.com/2025/03/07/hate-speech-positive-obligations-and-free-speech-the-ecthrs-expanding-framework-in-minasyan-and-others-v-armenia-2025/
9. Buyse, A. (2014). Dangerous expressions: The ECHR, violence and free speech. International & Comparative Law Quarterly, 63(2), 491-503.
