Does one swallow make a spring? Artistic and literary freedom at the European Court of Human Rights

Abstract

In a series of cases decided over the last few years, the European Court of Human Rights has been increasingly vindicating artistic freedom. It has been expanding the meaning of ‘satire’ as a form of art; excluding the protection of religious sensibilities from the scope of article 9; and gradually referring to the defence of ‘fiction’ in literature cases. Yet, a more careful analysis of the Court’s case-law does not suggest that art holds a privileged status among other forms of expression. It rather suggests that the Court, albeit tacitly, operates a certain hierarchy of values: on the one hand, by privileging liberal – and secular– values, and on the other, by being mindful to preserve the States’ margin of appreciation in issues touching upon public morality and public order. The paper submits that the Court could substantially benefit from an explicit consideration of defences for artists and writers.