ECtHR Rules Right to Boycott is Protected by Right to Freedom of Expression

On 11 June 2020, the European Court of Human Rights (ECtHR) delivered its judgement in the case Baldassi and Others v. France ruling that calling for a boycott of goods from Israel is protected by the right to freedom of expression and cannot be considered incitement to discrimination.

In 2009, 11 campaigners advocating for Palestinian rights were charged with “incitement to economic discrimination” under section 24(8) of the Law of 29 July 1881, for distributing leaflets in supermarkets in eastern France calling for the boycott of Israeli goods. They were sentenced with a suspended fine of €1,000 and €7,000 in damages in 2013 and France’s highest appeals’ court upheld the convictions in 2015, positioning the country as the only democracy where the call for a boycott by a citizens’ movement to criticize the policies of a third state is prohibited.

In 2016, the applicants filed an appeal before the ECtHR for violation of Articles 7 (no punishment without law) and 10 (freedom of expression) of the European Convention on Human Rights (ECHR).

On 11 June 2020, the ECtHR ruled that there had been no violation of Article 7 of the ECHR. The Court observed that section 24(8) of the 29 July 1881 Law did not explicitly refer to economic discrimination. Yet, since the the French Court of Cassation had already applied the subsection of the law in question to a similar case, “the applicants should have known that they were likely to be convicted for calling for a boycott of products imported from Israel”.

With regards to whether there had been a violation of the right to freedom of expression (Art. 10 ECHR), the Court started its analysis by assessing whether the French criminal conviction restricting the freedom of expression of the applicants was justified. Neither the parties of the Court questioned the fact that the call for a boycott of Israeli products represented an exercise of the right to freedom of expression.

The Court, consequently, applied its three-part test according to which an interference is justified, i) if it is prescribed by law, ii) it pursues a legitimate interest and iii) it is necessary in a democratic society. With regard to the first condition, the Court found that French law contained such a restriction recalling its previous findings of non-violation of Article 7. Likewise, the Court found that the French measure was in pursue of a legitimate aim – that is protecting the commercial rights of the producers or the suppliers of products coming from Israel. However, the court found that such a restriction was not necessary in a democratic society, and thus amounted to a violation of Article 10.

The Court then noted that a boycott is above all, a means to express political opinions, and that a call for a boycott is aimed at communicating these opinions while calling for specific actions related to them. It thus, in principle, falls within the scope of application of Article 10. Nonetheless, a call for a boycott is a peculiar mode to exercise freedom of expression insofar as it combines the expression of a protest with incitement to differential treatment which, depending on the circumstances, may amount to incitement to discrimination against others. In this regard, incitement to discrimination implies a call for intolerance which, together with a call for violence and a call for hatred, is a limit which cannot be exceeded in any circumstance.

The Court concluded its assessment with some remarks of the call for boycott of Israeli products in particular, stressing that the respect of public international law by Israel and the human rights situation in the occupied Palestinian territory (oPt) is a subject of general interest, which forms part of the contemporary debate taking place in France as it is taking place in the entire international community. In addition, since the actions and statements of the applicants were political and militant in nature, they were particularly protected by Article 10 and could be limited only in exceptional circumstances. In light of the above, the Court concluded that the conviction of the applicants, and thus the restriction on their right of freedom of expression, was not based on a relevant and sufficient ground, and that Article 10 had thus been violated.

Overall, this judgement represents a major step in protecting activists who stand for Palestinian human rights, stressing that the boycott of Israeli products is not discriminatory but reflects an important public discussion on Israel’s respect for international law and the human rights situation in the oPt. 

Being the ECtHR’s decision definitive, France must comply with it.

Part of this analysis originally appeared on the OpinioJuris Blog, in the article “Baldassi and Others v. France: Criminal Convictions of BDS Activists Violate Freedom of Expression under the European Convention on Human Rights” written by ELSC Researcher, Andreina De Leo.

We believe in the necessity to make legal knowledge accessible to everyone. Therefore, we present and explain some cases where the ELSC did not play a direct role, yet the relevance of the judgments is crucial in the defence and support of the Palestinian cause in Europe. The European Court of Human Rights’ judgment on the case Baldassi and Others v. France is one of these “milestone judgements”. Moreover, being a judgment of the European Court of Human Rights, it is directly applicable in the 47 member states of the Council of Europe. Baldassi and Others was brought before the ECtHR by a legal team which included ELSC advisory board member, Ghislain Poissonnier.