This article was last updated on: 08/11/23

Disclaimer: Liberties is an EU-watchdog, with the mission of protecting human rights for all within the European Union. Specifically, we campaign on human rights and democracy and raise our voice when rights and freedoms of people living in the EU are breached or threatened, calling on EU and national policy makers to respect and protect them. Due to our mandate and focused scope, we do not monitor and react to human rights violations, humanitarian crises, or other human rights-related issues unfolding beyond the European Union as such. However, we do engage as appropriate on the impact such events and issues have on human rights across the EU to inform and educate citizens about their rights.

The recent developments of the Israel-Hamas conflict have generated a number of important implications for human rights in the EU, as national, regional and international bodies take their stance on the conflict, and people engage in protests and even more heated debates than usual on online platforms. Here are some of the most pressing developments and concerns Liberties has observed.

Anti-Semitism & islamophobia sharply on the rise: There have been monitoring reports in several Member States of a marked increase in hate speech, particularly of anti-Semitic and Islamophobic nature, on online platforms. In Germany, a state-funded antisemitism research body recorded 202 antisemitic incidents between October 7 and 15 compared with 59 during the same week in 2022. In France, more than 1000 acts of anti-Semitism have been reported in the three weeks following October 7 than over the past year.

A new analysis by the Institute For Strategic Dialogue (ISD) finds an over 50-fold increase in the absolute volume of antisemitic comments on YouTube videos following Hamas’ attacks. Another ISD research found a 422% increase in language associated with anti-Muslim hate on the platform X. Since October 7th a sixfold increase in anti-Muslim comments was recorded by a community organisation in the United Kingdom.

EU law criminalises public incitement to hatred and violence and sets out a common approach to tackling racist and xenophobic hate speech and hate crimes.

Disinformation: Particularly high volumes of misinformation and disinformation about the conflict have spread since October 7. This mis- and disinformation spreads through social media like X, the former Twitter, and confuses our understanding of what’s happening.

Reuters fact-checking unit has identified numerous cases of social media posts using fake images and information about the Israel-Hamas conflict, and others in which confusion rather than deliberate disinformation appears to have heightened tensions.

On the other hand, fact checkers claim X’s crowd-sourced fact checking function, community notes, could not cope with the number of false posts.

Protests and restrictions: Across Europe, several peaceful demonstrations were organised in capitals since October 7, with tens of thousands of people taking part. Faced with this wave of protests, authorities in various European countries have imposed restrictions purportedly on grounds of security and public order concerns. Based on a general recollection and analysis of publicly available information, Liberties identified indications that such restrictions mainly targeted pro-Palestine protests.

In several countries, it was reported that pro-Palestinian demonstrations were banned (in France, Hungary, or Austria) or restricted (Germany). Police used force to disperse the crowds of protests in Germany, France.

In several cases, the police reportedly intervened on the assertion that the slogan ‘From the river to the sea’ may constitute an incitement to or glorification of violence, hate speech or the use of prohibited symbols. This included a ban in Germany on a pro-Palestine protest organised by a Jewish organisation based on fears of imminent anti-Semitism. Liberties will continue to closely monitor the situation and engage to assess whether similar restrictions could be regarded as justified, or amount to a disproportionate interference with the right to freedom of peaceful assembly.

Freedom of expression and censorship: According to a letter sent to Berlin schools on 13 October by Berlin’s education senator, Katharina Günther-Wünsch, principals of schools were given the option to ban students from wearing “pro-Palestinian symbols” such as the keffiyeh, maps of Israel in the colors of the Palestinian flag and stickers that say “Free Palestine” to prevent any act or expression of opinion “that can be understood as advocacy or approval of the attacks against Israel,” and therefore “constitute a threat to school peace“.

From a human rights standpoint in order for restrictions such as this one on students’ freedom of expression to be justified, the competent authorities should demonstrate that an actual threat to school peace exists, that the expression of wearing Palestinian symbols is one of the sources of this threat, and that no less restrictive measures are available to achieve the aim of protecting public security and public order at school. As we do not know the relevant details here, we cannot say whether this concrete instance of restrictions was justified.

Why is freedom of speech important?

Freedom of speech means you have the right to articulate opinions and ideas without interference or retaliation from the government. You can (and should) feel free to criticize the work your elected officials are doing. However, you should not feel free to hold a loud protest late into the night, because that could take away your neighbours’ right to privacy.

This is why free speech is so central to democracy. The free exchange of ideas, opinions and information provide us with the knowledge we need to make when we cast our votes. That’s also why free speech and the organs that support it, such as free media and civil society, are often the first things that disappear in autocracies. And because we can’t have democracy without free speech, we have to be careful about any actions that could limit it.

In order for restrictions on freedom of expression to be justified they must be 1) prescribed by law, 2) pursue a legitimate aim and 3) be necessary and proportionate in a democratic society. A legitimate aim includes respecting the rights of others and protecting public order or morals. The necessity requirement obliges the state to establish that a threat exists, that the actions taken are necessary and proportionate, and to demonstrate a direct and immediate connection between the expression and the threat.

Why hate speech is different from free speech?

Hate speech is harmful and when it amounts to incitement to discrimination, hostility or violence it is not protected under freedom of expression according to international human rights standards. At EU level, rules agreed among all member States require governments to ensure that anyone who intentionally and publicly incites to violence or hatred against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin, including by means of the dissemination or distribution of written material, can be held criminally liable. This may also include inciting to such violence or hatred by publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes, as defined in international instruments.

Therefore any speech which amounts to incitement to violence or hatred against Jewish people or Muslims is not legally protected and should, in the EU, constitute a criminal offense.

On the contrary, speech which does not amount to incitement to discrimination, hostility and violence remains in principle under the realm of the right to freedom of expression, even where it “offends, shocks or disturbs the State or any sector of the population”, as the European Court of Human Rights has consistently held.

Why does freedom of assembly matter?

The right to peaceful protest, also called the “freedom of assembly”, is a fundamental right. It means that we, as citizens, are allowed to gather together peacefully and voice an opinion about something, such as a law, policy, or public figure. The fact that it is a fundamental right means a government can’t just take it away and prevent people from protesting when it would be against the government’s interest. Rather, our right to protest obliges the government to facilitate protests, for example by diverting traffic or providing medical assistance.

Peaceful protest can be thought of as a form of public debate, where people share their views or express emotions towards their government and its policies. They also help the government to better understand the needs and desires of its citizens, and to understand how much support certain view or opinions have. This benefits everyone.

Peaceful protest is also an important tool for minority voices within a democracy to be heard. Democracy does not mean that the majority rules at the expense of all else. Minority opinions and peoples must be heard in order for a democracy to stay strong and protect everyone living under it. Otherwise, we fall victim to the ‘tyranny of the majority’.

All Member States across the European Union must make sure that the right to peaceful protest is respected and protected. This should ensure a review of the legal framework regulating the exercise of the right to protest in the light of international human rights standards, and investigations into any arbitrary or unlawful restrictions or sanctions addressed by authorities against peaceful protesters. Arbitrary and disproportionate restrictions on the right to protest applied in a systematic manner should be regarded by the EU institutions as an indicator of a threat to the rule of law.

Protests can be restricted according to international and regional human rights standards only under certain conditions, and in furtherance of certain legitimate aims. According to the European Convention on Human Rights, these include the prevention of disorder or crime, the protection of national security and safety, and the protection of the freedoms and rights of others.

To protect the right to freedom of assembly and expression, authorities should avoid restrictions on protests unless they are necessary, no other less restrictive measures are available, and they are applied without discrimination. If imposed, they should be lawful, strictly proportionate and based on a case-by-case assessment. Bans on protests should be a last resort and limitations can be appealed through judicial review, a process whereby an independent court can review an administrative decision by a public body. No force should be used against protesters, including in the form of arrests or the use of non-lethal weapons, unless it is used to remove a violent person or group, to ensure that peaceful protesters can continue their demonstrations, or is otherwise necessary. If force is deemed necessary, it should be proportionate and the least violent use of force must be applied initially.

In order for the bans on pro-Palestine protests in Europe to be legitimate, the responsibility lies with the state to demonstrate that the curtailment on the freedom of assembly meets these criteria. Therefore, they would need to demonstrate that banning the protest is a proportionate response, and that no alternative measures are available. A case-by-case ban is justified at demonstrations where the 7 October killings or Hamas or any other terrorist organisation are glorified, or where demonstrators openly use hate speech or incite violence against a group of people, or where peaceful protest turn violent.

More information

• What is Freedom of Assembly?
• Why Is Freedom of Speech Important in a Democracy: 5 Reasons
• Misinformation vs Disinformation
• Human Rights Watch: Israel-Palestine Hostilities Affect Rights in Europe.
• Civic Space Watch: Alert: Restrictions on peaceful protests in solidarity with Palestinian people across Europe
• European Commission: How to report a breach of your rights

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