European Court of Human Rights legitimises unique speech privilege demanded by Islam

• The ECHR decision is replete with Aesopian formulations such as "serious/objective debate", "gratuitously offensive to other people's faith", "comments merely provocative or intended as an abusive attack", "legitimate aim of a prosecution", "merely (regulating) the manner in which statements could be made", "acceptable criticism", "objective discussion", and "justified indignation". What they mean is anybody's guess;

• The absence of a clearly ascertainable standard of legal liability (criminal or civil) is the inherent vice of all tendency-based speech prohibitions. Not surprisingly, they have long been a favourite weapon of all existing or would-be censors;

• There is no consideration of the unique politico-legal claims embodied in The Koran. The unequivocal contention of votaries of Islam in Australia that the contents of The Koran are not to be called into question in any way was made clear in the intemperate and insulting public responses, including those of the Grand Mufti of Australia, to the sentencing remarks of Justice Kagan of the Supreme Court of New South Wales in the recent terrorism case, R v Bayda and Namoa;

• The absence of any acknowledgement that, insofar as compelled "respect" for religious ideas has any role to play in the operation of the Rome Convention, it can only extend to respect for the right to hold and express religious ideas, not to compel acceptance of the content of such ideas. In a secular democracy, it should be obvious that there is nothing special about Islam. Like all other religions old and new, it has to put up with all the "insults" that every one of those other religions has to endure. In the case of Christianity, this can be illustrated, by the decision of Justice Harper of the Supreme Court of Victoria in Pell v Council of Trustees of the National Gallery of Victoria (the "Piss Christ case") (1997). And, in the case of Islam, Justice Nettle (then also of the Supreme Court of Victoria) in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc(2006)made the following unimpeachable observation which is likely to be held by many Australians: "And there are anynumber of persons whomay despise each other's faiths and yet bear each other no ill will. I dare say, for example, that there would be a large number of people who would despise Pastor Scot's perception of Christianity and yet not dream of hating him or be inclined to any of the other stipulated emotions."

• The ECHR's unparticularised passing mention of the "particularly sensitive nature" of the case and the need "to have religious peace preserved in Austrian society" is highly suggestive of what in US First Amendment jurisprudence is called "the heckler's veto", and more particularly that there is a well-founded apprehension that indignant votaries of The Koran will take to the streets and engage in violence to discourage or suppress that which offends them (as happened, for example, in central Sydney in September 2012, including the despicable use of children to urge people to behead anyone who insults the Prophet);

• The ECHR emphasised that in making controversial statements regarding events which occurred 14 centuries ago, ES had failed to deal the historical background "neutrally" and thus ES had not contributed to a debate of general interest because she had made her allegation primarily in order to defame Muhammad. However, again, this is what believers of any faith have to accept in a secular democracy;

• The proposition that courts in the 21st century should be adjudicating the accuracy of disputed claims about what may or may not have happened, including allegedly false statements attributing paedophile behaviour to the Prophet of Islam, 1,400 years ago, or that contemporary discussion about child marriages, the rights of women or homosexuals should be limited out of "respect" for such ancient sectarian scriptural standards and sensitivities is antithetical to the rights of the individual in a secular democracy.

The obscurantism of the ECRC decision is open to the interpretation that the Court is of the view that the preferred way to foster "religious peace" (whatever that means) and to soothe the unique sectarian sensitivities of the followers of the Prophet is to pander to the hotheads among them who (to borrow the words of the SCP) being infuriated to an intolerable limit by anything which in any way attacks any aspect of the Prophet's sacred life, take to the streets and object violently to any critical analysis of the contents of The Koran or the Prophet. This censorious approach is bound to produce sectarian disorder.