Mauro Gatti, University of Bologna, has published Blasphemy in European Law in On Blasphemy 49-64 (M. Diez Bosch and J. Sànchez Torrents, eds., Blanquerna, 2015). Here is the abstract.
European countries have been punishing blasphemy since time immemorial. Several members of the European Union maintain blasphemy laws in their books to this day and some States implement them. These laws are problematic even when they are not applied, since they curtail criticism of religious doctrines and encourage censorship and self-censorship. In the past, the European Court of Human Rights affirmed that blasphemy laws were compatible with human rights law, since there was not sufficient common ground in the legal and social orders of European States to conclude that the repression of blasphemy was unnecessary in a democratic society. This paper intends to demonstrate that such ‘common ground’ now exists, especially within the European Union. Several EU countries have scrapped blasphemy laws from their penal codes, or have ceased to implement them. What is more, the governments of all EU Member States have repeatedly declared that blasphemy laws are incompatible with universal human rights standards. The existence of such a ‘common ground’ between EU Members suggests that the European Court of Human Rights should revise its jurisprudence. It also indicates that EU States should abolish their blasphemy laws, if they have not done so already. In a Union based on freedom and human rights, the most appropriate way to combat a perceived offense from the exercise of freedom of expression is not censorship, but the use of freedom of expression itself.Download the essay from SSRN at the link.