Kneecap’s vociferous rhetoric on Israel’s alleged genocide in Gaza. and the resulting charges brought by the Metropolitan police, have unsurprisingly spurred debates regarding where lines must be drawn on the right to freedom of expression. Substantively, many supporters of the Belfast group have probed whether Ó hAnnaidh—as a controversial musical artist—is a suitable target for potential prosecution under section 13 of the UK’s Terrorism Act 2000. Over 100 artists have signed an open letter to support Kneecap’s freedom of expression and ‘register opposition to any political repression of artistic freedom.’ The rap group have themselves labelled the charges a form of ‘political policing’ and ‘a carnival of distraction’ away from their substantive protestations against Israeli atrocities.
Kneecap’s latest controversy epitomizes a tension between provocative democratic expression and incitement to hatred. This blog post analyses this tension through the lens of Article 10 of the European Convention on Human Rights (ECHR). The right to freedom of expression under Article 10 ECHR also forms the basis of the UK’s obligation to protect freedom of expression under the Human Rights Act 1998. Anticipating how the current Kneecap controversy could potentially engage the right to freedom of expression under the ECHR, this post argues that the context of Kneecap’s satirical performances and the factual substance underlying their provocative displays should carry weight in any proportionality analysis of the group’s political statements.
Testing the Limits to Article 10 ECHR
Article 10 ECHR states that ‘everyone has the right to freedom of expression,’ including a ‘freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.’ However, this explicitly broad application is tempered by the provision’s second paragraph which highlights the ‘duties and responsibilities’ that accompany the exercise of Article 10 freedoms. ECHR Contracting Parties may impose ‘formalities, conditions, restrictions or penalties’ to limit expressive rights but must satisfy a cumulative ‘three-part test’ when justifying any limitations. Specifically, Article 10 interferences must 1) be prescribed by law 2) pursue a legitimate aim under the Convention and 3) be necessary in a democratic society. In principle, it is difficult to envisage how the UK’s potential prosecution against Ó hAnnaidh would fail to meet the first two prongs of this three-part test. The UK’s Terrorism Act is a publicly accessible law that expressly lists Hezbollah as a ‘proscribed organization.’ The second paragraph of Article 10 lists ‘the interests of national security, and ‘the prevention of disorder or crime’ as a legitimate aim for States to predicate interferences with freedom of expression. The contentious area here relates to whether the ECtHR would identify the UK’s potential prosecution of Kneecap on terrorism charges as being ‘necessary in a democratic society’ under the Article 10 ECHR framework. Probing this question requires an examination of insightful case law where the Strasbourg Court has applied—and at times, refused to apply—Article 10 when examining State interferences with provocative communications.
The Wide Margins for Political Expression and Provocation
Tracing back to the formative case of Handyside v the United Kingdom, the ECtHR has underlined that freedom of expression extends to statements and ideas ‘that offend, shock or disturb the State or any sector of the population.’ This links to the Convention’s stated values of ‘pluralism, tolerance and broadmindedness without which there is no democratic society.’ The Strasbourg Court has consistently invoked these values to justify its assiduous protection of contentious political expression. In cases involving Article 10 violations such as Lingens v Austria and Castells v Spain, the Court set out that the ‘limits’ of permissible criticism are ‘wider’ where individuals condemn the actions (or inactions) of political officials. Unlike private citizens, elected officials knowingly submit themselves to public criticism and occupy a dominant position of power.
Provocative expression receives particularly strong protection under Article 10 if conveyed in a satirical and artistic environment. In Vereinigung Bildender Künstler v Austria, the Strasbourg Court found Austria to have violated Article 10 ECHR after ordering an applicant to suspend his art exhibition depicting public figures in sexually explicit positions. While undeniably offensive, the depictions conveyed a ‘caricature of the persons concerned using satirical elements.’ Such elements could not be ignored due to the role of satire as ‘a form of artistic expression and social commentary’ which ‘by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate.’ Such agitation—even if highly offensive—may be used to underscore sincere political grievances. In cases such as Alves da Silva v Portugal and Eon v France, the Court found Article 10 violations where individuals were prosecuted for waving a puppet and a placard portraying political leaders (for unlawfully receiving sums of money and for uttering an offensive phrase respectively). Both findings were principally founded on the Court’s identification of satire as ‘social commentary’ containing ‘exaggeration and distortion of reality.’ Such commentary needed to be assessed considering the ‘greater degree of tolerance towards criticism’ of political power.
Importantly, the Court is particularly inclined to protect provocative communications that shed light on political wrongdoing. This is epitomised in cases such as Oberschlick v Austria and Lopes Gomes da Silva v Portugal, both of which involved State violations of Article 10. In both cases, the applicants had been prosecuted for using offensive language to ridicule political officials. Crucial to both findings was the ECtHR’s identification that the applicant’s offensive statements had stemmed from their objectively understandable concern as regards the targeted politician’s misuse of power. Such context had to be considered alongside the Court’s identification that the ‘political invective often spills over into the personal sphere; such are the hazards of politics and the free debate of ideas, which are the guarantees of a democratic society.’
The ECtHR’s general approach here reflects the Court’s inclination to find Article 10 violations where States curtail the right of satirical figures to use offensive and statements and imagery to meaningfully critique political officials. When examining Kneecap’s controversy through an Article 10 lens, it is important to recall that the rap trio describe themselves as merging ‘satire with socially conscious lyrics, and reality with absurdity.’ One of the group’s signature moments involves a band member revealing the phrase ‘Brits Out’ on his buttocks at a live performance. Moreover, the group’s incendiary statements must be seen in conjunction with a cascade of genuine condemnation of the UK government’s failures to stop Israel’s genocide, both from Kneecap themselves and other public figures (including members of the UK judiciary).
The Limits of Article 10: Promoting Proscribed Groups
While extending strong protection to provocative political communications, the ECtHR does not provide musical artists with a carte blanche to provoke with unfettered discretion. When interpreting the textual limitations set out under Article 10(2), the Court has expressly delineated criticism of the use of political power from criticism of democracy itself. The Court has often categorically excluded anti-democratic propaganda from any protection under Article 10 by invoking the Convention’s abuse clause. Specifically, Article 17 ECHR prohibits any individual from engaging ‘in any activity or perform any act aimed at the destruction of any of the rights and freedoms’ under the Convention. The earliest use of Article 17 traces back to the admissibility decision of Communist Party of Germany v the Federal Republic of Germany where Germany dissolved the German Communist Party. The European Commission on Human Rights (ECommHR) rejected admissibility of the application under Article 10 ECHR due to the party’s ‘revolutionary’ aim to promote ‘dictatorship of the proletariat’ and abolish Germany’s ‘liberal democratic order.’
In subsequent cases, the Strasbourg judicial organs have applied Article 17 ECHR to distance Article 10 liberties from communications that seek to reinstate political regimes to revive the atrocities that inspired the Convention’s initial formation. This is illustrated in admissibility cases such as Glimmerveen and Hagenbeek v. the Netherlands and BH, MW, HP and GK. v Austria. In the former, the ECommHR found no issue with the Netherland’s conviction of applicants who had disseminated racist election pamphlets calling for an ‘ethnical homogeneous population.’ In the latter, the Court invoked Article 17 to reject admissibility under Article 10 when Austria had prevented neo-Nazi politicians from disseminating conspiratorial pamphlets. Such ideas, particularly when accompanied by the formation of a concrete political movement, are ‘incompatible with democracy’ as articulated under the Convention.
While the early use of Article 17 reflects the Convention’s initial categorical resistance to a revival of Nazism and Communism after the horrors of World War 2, the Court has gradually expanded the use of this provision to a broader range of communications that the Court deems to be hostile to ECHR values. This subtle expansion has elicited criticism, principally linked to the inconsistent application of Article 17 and the potential atrophy of the democratic necessity test in complex Article 10 cases. Remaining consistent, however, is the ECtHR’s willingness to use Article 17 to ‘attack hate speech’ that targets vulnerable minorities. This is evident from cases such as Le Pen v France and Belkacem v Belgium where the Court used Article 17 to exclude the applicant’s statements from Article 10 protection. Notably, the former case involved conspiratorial propaganda about immigrant Muslims while the latter involved a Salafist leader’s encouragement of his YouTube viewers to ‘dominate’ and ‘fight non-Muslim’ groups. Informing the Court’s rejection to apply protection under Article 10 in both cases was that both situations involved influential public figures misusing their expressive rights to incite hatred. It must also be noted here that the Court has explicitly and repeatedly used Article 17 to firmly reject anti-Semitism and Holocaust denial.
In the above cases, the Court’s use of Article 17 to draw limits to Article 10 have typically involved statements originating from individuals acting in an explicit political capacity (running for election or seeking to establish a political party). This raises crucial questions regarding the limits to freedom of expression under Article 10 where individuals may invoke highly controversial symbols outside of a formal political context. Cases such as Šimunić v Croatia appear to highlight the importance of the public influence of the speaker alongside the ideas that such speakers promote. Here, the ECtHR agreed with Croatia’s conviction of the applicant footballer for inciting discrimination by participating with fan chants which had infamous connotations to Croatian fascism and ‘racist ideology.’ It was pivotal that the footballer was ‘a role-model for many football fans’ and ‘should have been aware of the possible negative impact of provocative chanting on spectators.’ In other cases, notable for their involvement of flags, the Court has applied a nuanced approach. Notable here is Faber v Hungary, the Court found Hungary to have violated Article 10 for fining the applicant for displaying a politically controversial Árpád-striped flag in protest against an ongoing anti-racist demonstration. Interestingly, the Court found an Article 10 violation despite the applicant’s display of this flag (which had known connotations to extreme right factions) at the site of the massive extermination of Jews during the Arrow Cross regime. Calling for a close examination of context in this case, however, the ECtHR noted the lack of proven abusive behaviour and likely risk of an outbreak of violence on the grounds of the flag’s display. Moreover, citing cases such as Öllinger v. Austria, the Court stressed the importance of contextual analysis where the display of symbols may convey multiple meanings as a tool for political expression. In such cases, the Court noted that ‘utmost care must be observed in applying any restrictions.’
Conventional Wisdom on the Kneecap Controversy
When examining Kneecap’s controversy through the lens of freedom of expression, it is evident that the trio’s display of a proscribed group’s flag tests the limits of Article 10. Facially, flying the flag of an organization whose actions frustrate the Convention’s values may appear to be an excessive use of expressive rights. Crucially, however it is vital to appreciate the ECtHR’s emphasis on context when mediating tensions between various Convention values in the above cases. From an Article 10 standpoint, the Belfast group’s status as influential satirical provocateurs—in conjunction with the factual substance underscoring the group’s inflammatory criticism of Israel’s atrocities—must be seen to have significant weight. Rather than representing an explicit endorsement of violence, Article 10 jurisprudence suggests that Kneecap’s provocations may also need to be considered as protestations against the type of activities that Article 17—and the Convention itself—was enshrined to resist.
Capping Freedom of Expression? Assessing Kneecap’s Controversy under the ECHR
Written by Ethan ShattockOn Friday 23rd May, the Irish-language rap trio Kneecap headlined London’s Wide Awake music festival at Brixton’s Broxwell Park. Attended by 20,000 fans, this marked the Belfast group’s first stage performance since the announcement that the Metropolitan police charged one of the group’s members with terrorism offences. Liam Óg Ó hAnnaidh (stage name Mo Chara), is scheduled to appear at Westminster Magistrate’s Court on Wednesday 18 June after allegedly displaying a flag in support of proscribed Lebanese organization Hezbollah at a Kentish town event in November 2024. Ó hAnnaidh’s court appearance will occur one week before the Belfast group’s scheduled—although now uncertain—appearance at the Glastonbury 2025 festival.
Kneecap’s vociferous rhetoric on Israel’s alleged genocide in Gaza. and the resulting charges brought by the Metropolitan police, have unsurprisingly spurred debates regarding where lines must be drawn on the right to freedom of expression. Substantively, many supporters of the Belfast group have probed whether Ó hAnnaidh—as a controversial musical artist—is a suitable target for potential prosecution under section 13 of the UK’s Terrorism Act 2000. Over 100 artists have signed an open letter to support Kneecap’s freedom of expression and ‘register opposition to any political repression of artistic freedom.’ The rap group have themselves labelled the charges a form of ‘political policing’ and ‘a carnival of distraction’ away from their substantive protestations against Israeli atrocities.
Kneecap’s latest controversy epitomizes a tension between provocative democratic expression and incitement to hatred. This blog post analyses this tension through the lens of Article 10 of the European Convention on Human Rights (ECHR). The right to freedom of expression under Article 10 ECHR also forms the basis of the UK’s obligation to protect freedom of expression under the Human Rights Act 1998. Anticipating how the current Kneecap controversy could potentially engage the right to freedom of expression under the ECHR, this post argues that the context of Kneecap’s satirical performances and the factual substance underlying their provocative displays should carry weight in any proportionality analysis of the group’s political statements.
Testing the Limits to Article 10 ECHR
Article 10 ECHR states that ‘everyone has the right to freedom of expression,’ including a ‘freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.’ However, this explicitly broad application is tempered by the provision’s second paragraph which highlights the ‘duties and responsibilities’ that accompany the exercise of Article 10 freedoms. ECHR Contracting Parties may impose ‘formalities, conditions, restrictions or penalties’ to limit expressive rights but must satisfy a cumulative ‘three-part test’ when justifying any limitations. Specifically, Article 10 interferences must 1) be prescribed by law 2) pursue a legitimate aim under the Convention and 3) be necessary in a democratic society. In principle, it is difficult to envisage how the UK’s potential prosecution against Ó hAnnaidh would fail to meet the first two prongs of this three-part test. The UK’s Terrorism Act is a publicly accessible law that expressly lists Hezbollah as a ‘proscribed organization.’ The second paragraph of Article 10 lists ‘the interests of national security, and ‘the prevention of disorder or crime’ as a legitimate aim for States to predicate interferences with freedom of expression. The contentious area here relates to whether the ECtHR would identify the UK’s potential prosecution of Kneecap on terrorism charges as being ‘necessary in a democratic society’ under the Article 10 ECHR framework. Probing this question requires an examination of insightful case law where the Strasbourg Court has applied—and at times, refused to apply—Article 10 when examining State interferences with provocative communications.
The Wide Margins for Political Expression and Provocation
Tracing back to the formative case of Handyside v the United Kingdom, the ECtHR has underlined that freedom of expression extends to statements and ideas ‘that offend, shock or disturb the State or any sector of the population.’ This links to the Convention’s stated values of ‘pluralism, tolerance and broadmindedness without which there is no democratic society.’ The Strasbourg Court has consistently invoked these values to justify its assiduous protection of contentious political expression. In cases involving Article 10 violations such as Lingens v Austria and Castells v Spain, the Court set out that the ‘limits’ of permissible criticism are ‘wider’ where individuals condemn the actions (or inactions) of political officials. Unlike private citizens, elected officials knowingly submit themselves to public criticism and occupy a dominant position of power.
Provocative expression receives particularly strong protection under Article 10 if conveyed in a satirical and artistic environment. In Vereinigung Bildender Künstler v Austria, the Strasbourg Court found Austria to have violated Article 10 ECHR after ordering an applicant to suspend his art exhibition depicting public figures in sexually explicit positions. While undeniably offensive, the depictions conveyed a ‘caricature of the persons concerned using satirical elements.’ Such elements could not be ignored due to the role of satire as ‘a form of artistic expression and social commentary’ which ‘by its inherent features of exaggeration and distortion of reality, naturally aims to provoke and agitate.’ Such agitation—even if highly offensive—may be used to underscore sincere political grievances. In cases such as Alves da Silva v Portugal and Eon v France, the Court found Article 10 violations where individuals were prosecuted for waving a puppet and a placard portraying political leaders (for unlawfully receiving sums of money and for uttering an offensive phrase respectively). Both findings were principally founded on the Court’s identification of satire as ‘social commentary’ containing ‘exaggeration and distortion of reality.’ Such commentary needed to be assessed considering the ‘greater degree of tolerance towards criticism’ of political power.
Importantly, the Court is particularly inclined to protect provocative communications that shed light on political wrongdoing. This is epitomised in cases such as Oberschlick v Austria and Lopes Gomes da Silva v Portugal, both of which involved State violations of Article 10. In both cases, the applicants had been prosecuted for using offensive language to ridicule political officials. Crucial to both findings was the ECtHR’s identification that the applicant’s offensive statements had stemmed from their objectively understandable concern as regards the targeted politician’s misuse of power. Such context had to be considered alongside the Court’s identification that the ‘political invective often spills over into the personal sphere; such are the hazards of politics and the free debate of ideas, which are the guarantees of a democratic society.’
The ECtHR’s general approach here reflects the Court’s inclination to find Article 10 violations where States curtail the right of satirical figures to use offensive and statements and imagery to meaningfully critique political officials. When examining Kneecap’s controversy through an Article 10 lens, it is important to recall that the rap trio describe themselves as merging ‘satire with socially conscious lyrics, and reality with absurdity.’ One of the group’s signature moments involves a band member revealing the phrase ‘Brits Out’ on his buttocks at a live performance. Moreover, the group’s incendiary statements must be seen in conjunction with a cascade of genuine condemnation of the UK government’s failures to stop Israel’s genocide, both from Kneecap themselves and other public figures (including members of the UK judiciary).
The Limits of Article 10: Promoting Proscribed Groups
While extending strong protection to provocative political communications, the ECtHR does not provide musical artists with a carte blanche to provoke with unfettered discretion. When interpreting the textual limitations set out under Article 10(2), the Court has expressly delineated criticism of the use of political power from criticism of democracy itself. The Court has often categorically excluded anti-democratic propaganda from any protection under Article 10 by invoking the Convention’s abuse clause. Specifically, Article 17 ECHR prohibits any individual from engaging ‘in any activity or perform any act aimed at the destruction of any of the rights and freedoms’ under the Convention. The earliest use of Article 17 traces back to the admissibility decision of Communist Party of Germany v the Federal Republic of Germany where Germany dissolved the German Communist Party. The European Commission on Human Rights (ECommHR) rejected admissibility of the application under Article 10 ECHR due to the party’s ‘revolutionary’ aim to promote ‘dictatorship of the proletariat’ and abolish Germany’s ‘liberal democratic order.’
In subsequent cases, the Strasbourg judicial organs have applied Article 17 ECHR to distance Article 10 liberties from communications that seek to reinstate political regimes to revive the atrocities that inspired the Convention’s initial formation. This is illustrated in admissibility cases such as Glimmerveen and Hagenbeek v. the Netherlands and BH, MW, HP and GK. v Austria. In the former, the ECommHR found no issue with the Netherland’s conviction of applicants who had disseminated racist election pamphlets calling for an ‘ethnical homogeneous population.’ In the latter, the Court invoked Article 17 to reject admissibility under Article 10 when Austria had prevented neo-Nazi politicians from disseminating conspiratorial pamphlets. Such ideas, particularly when accompanied by the formation of a concrete political movement, are ‘incompatible with democracy’ as articulated under the Convention.
While the early use of Article 17 reflects the Convention’s initial categorical resistance to a revival of Nazism and Communism after the horrors of World War 2, the Court has gradually expanded the use of this provision to a broader range of communications that the Court deems to be hostile to ECHR values. This subtle expansion has elicited criticism, principally linked to the inconsistent application of Article 17 and the potential atrophy of the democratic necessity test in complex Article 10 cases. Remaining consistent, however, is the ECtHR’s willingness to use Article 17 to ‘attack hate speech’ that targets vulnerable minorities. This is evident from cases such as Le Pen v France and Belkacem v Belgium where the Court used Article 17 to exclude the applicant’s statements from Article 10 protection. Notably, the former case involved conspiratorial propaganda about immigrant Muslims while the latter involved a Salafist leader’s encouragement of his YouTube viewers to ‘dominate’ and ‘fight non-Muslim’ groups. Informing the Court’s rejection to apply protection under Article 10 in both cases was that both situations involved influential public figures misusing their expressive rights to incite hatred. It must also be noted here that the Court has explicitly and repeatedly used Article 17 to firmly reject anti-Semitism and Holocaust denial.
In the above cases, the Court’s use of Article 17 to draw limits to Article 10 have typically involved statements originating from individuals acting in an explicit political capacity (running for election or seeking to establish a political party). This raises crucial questions regarding the limits to freedom of expression under Article 10 where individuals may invoke highly controversial symbols outside of a formal political context. Cases such as Šimunić v Croatia appear to highlight the importance of the public influence of the speaker alongside the ideas that such speakers promote. Here, the ECtHR agreed with Croatia’s conviction of the applicant footballer for inciting discrimination by participating with fan chants which had infamous connotations to Croatian fascism and ‘racist ideology.’ It was pivotal that the footballer was ‘a role-model for many football fans’ and ‘should have been aware of the possible negative impact of provocative chanting on spectators.’ In other cases, notable for their involvement of flags, the Court has applied a nuanced approach. Notable here is Faber v Hungary, the Court found Hungary to have violated Article 10 for fining the applicant for displaying a politically controversial Árpád-striped flag in protest against an ongoing anti-racist demonstration. Interestingly, the Court found an Article 10 violation despite the applicant’s display of this flag (which had known connotations to extreme right factions) at the site of the massive extermination of Jews during the Arrow Cross regime. Calling for a close examination of context in this case, however, the ECtHR noted the lack of proven abusive behaviour and likely risk of an outbreak of violence on the grounds of the flag’s display. Moreover, citing cases such as Öllinger v. Austria, the Court stressed the importance of contextual analysis where the display of symbols may convey multiple meanings as a tool for political expression. In such cases, the Court noted that ‘utmost care must be observed in applying any restrictions.’
Conventional Wisdom on the Kneecap Controversy
When examining Kneecap’s controversy through the lens of freedom of expression, it is evident that the trio’s display of a proscribed group’s flag tests the limits of Article 10. Facially, flying the flag of an organization whose actions frustrate the Convention’s values may appear to be an excessive use of expressive rights. Crucially, however it is vital to appreciate the ECtHR’s emphasis on context when mediating tensions between various Convention values in the above cases. From an Article 10 standpoint, the Belfast group’s status as influential satirical provocateurs—in conjunction with the factual substance underscoring the group’s inflammatory criticism of Israel’s atrocities—must be seen to have significant weight. Rather than representing an explicit endorsement of violence, Article 10 jurisprudence suggests that Kneecap’s provocations may also need to be considered as protestations against the type of activities that Article 17—and the Convention itself—was enshrined to resist.
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