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The concept of ‘incitement to hatred’ under the Television without frontiers Directive

Ljupcho Grozdanovski , 29 septembre 2011

Directive 89/552 (the Directive), on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ n° L 298, p. 23, 17.10.1989), establishes a minimal harmonisation, allowing the Member States to prohibit the broadcasting of programmes that fall in the scope of Article 22. The latter states the circumstances under which such prohibitions can be justified, provided that they be necessary and proportionate. However, due to the general wording of the Article, it is often the European Court of Justice that defines the scope of these circumstances (De Agostini, C-34/95). In the Mesopotamia Broadcast case, from September 22, 2011 (C-244/10), the Court defined both the content and the scope of the concept of ‘incitement to hatred’ under Article 22 of the Directive.

Mesopotamia Broadcast is a holding company registered in Denmark, holder of several Danish television licences, one of which is Roj TV. The latter mainly broadcasts programmes in Kurdish language in several EU Member States, amongst others Germany. The Turkish government addressed a number of complaints to the Danish Radio and Television Board stating that the purpose of Roj TV’s programmes is to support the Kurdistan Workers Party (PKK), classified as a terrorist organisation by the European Union. The Board considered that, by virtue of Article 22 of the Directive, the programmes at issue did not incite to hatred on the grounds of race, sex, religion or nationality. However, the German Federal Interior Ministry (the Ministry) prohibited the broadcasting of the stated programmes in Germany, considering that they infringe the « principles of international understanding » as provided for in Article 9 (2) of the German Constitution. The decision issued by the Ministry was challenged by Mesopotamia Broadcast before the German Courts. The claimant argued that, in the light of the Directive’s objectives, the prohibition to broadcast its programmes in Germany infringes the cross-border retransmission of televised programmes. The national Court then referred a question for preliminary ruling to the European Court of Justice, demanding if a national legislation that precludes a broadcaster from transmitting its programmes in another Member State, due to a violation of the principles of international understating, is compatible with the Directive.

The Court of justice first emphasised the non-exhaustive character of the Directive, allowing the Member States to evaluate the impact that the broadcasting of certain programmes may have on their public order, public morality or public security. The Court pursued that  while Article 22 of the Directive allows the prohibition to broadcast on the grounds of incitement to hatred, it does not define what this incitement is. In the absence of such a definition, the Court considered that an incitation to hatred is to be defined as « an action intended to direct specific behaviour » causing a « feeling of animosity or rejection with regard to a group of persons » (point 42). Considering that some of the programmes broadcasted by Roj TV tend to portray the conflict between persons of Turkish and Kurdish origins, the Court concluded that such programmes fall in the scope of Article 22, as far as they constitute an incitement to hatred.

With regard to the De Agostini and TV-shop cases, the Court held that the Member States have the obligation, under the Directive, to ensure the freedom of reception and retransmission of televised programmes. In the main proceeding, German Law does not specifically prohibit the broadcasting of such programmes, but prohibits, more generally, all activities of association that pose a threat to the principles of international understanding. The Court concluded that Article 22 of the Directive is to be interpreted as meaning that the stated principles are included in the concept of ‘incitement to hatred on the grounds of race, sex, religion and nationality’. Therefore, a receiving Member State is entitled to prohibit the retransmission of programmes considered to infringe these principles, provided that the prohibition does not prevent retransmission per se on its territory. It is under the jurisdiction of the national judge to determine whether such prohibition is at issue.

Reproduction autorisée avec l’indication: Grozdanovski Ljupcho "The concept of 'incitement to hatred' under the Television without frontiers Directive", www.ceje.ch, actualité du 29 septembre 2011