* I wish to express my thanks to the anonymous referee for helpful comments on earlier drafts.
Copyright © 1997 Deborah Butler.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
Holocaust denial is an increasing problem in England, but English law is not equipped to deal with it. There have been suggestions recently that a law should be passed making it a criminal offence to deny the Holocaust, but such a law could be seen as setting dangerous precedents in the area of freedom of expression. This article attempts to argue that the law should deal with the problem of Holocaust denial in a way that does not involve making it illegal to dispute certain facts. Although such a law might be more difficult to develop than one criminalising Holocaust denial, it would be more consistent with the approach taken by English law to freedom of expression.
Is Holocaust Denial a problem that requires a legal solution?
Why is there a demand for legislation criminalising Holocaust denial?Action against Holocaust denial which does not involve legislation.
The Skokie case - the conflict between freedom of expression and racist speech.
Should the criminal law be concerned with Holocaust denial?
Should the civil law be concerned with Holocaust denial?
Can the problem of Holocaust Denial be dealt with under present English law?The Malicious Communications Act 1988.
The Public Order Act 1986.
Should Holocaust Denial be made a criminal offence?The case against criminalising Holocaust denial.
The case for criminalising Holocaust denial.
The wider implications of making Holocaust denial a criminal offence.
The relevance of foreign legislation criminalising Holocaust denial.
Possible changes to the law to deal with Holocaust.Possible changes to the law of defamation.
Possible changes to the Malicious Communications Act 1988.
Possible changes to the Public Order Act 1986.
England has no specific Holocaust denial legislation. In view of the increase in the problem here, it has been suggested that such legislation is necessary. On 3rd October 1996, delegates at the Labour Party Conference voted unanimously to introduce such legislation should the party win the next general election. More recently, on 29th January this year, the Labour MP, Mike Gapes, introduced a Private Member's Bill which would make it a criminal offence to deny the Holocaust. Similar legislation has already been introduced in other countries such as Israel, Austria, France and Germany.
However, the fact that a particular law has been introduced in some countries does not mean that it should automatically be introduced in others. Legislation which has been passed in other countries can provide useful guidance when deciding how to tackle a problem, but it is important not to view it in isolation; foreign legislation has to be considered both in the context of the legal system which created it and in the context of the problem it was designed to address.
In view of the recent demand for legislation criminalising Holocaust denial in England,(1) this article aims to consider whether such legislation is necessary or desirable. In doing so, it is first necessary to ask whether the problem in England requires a legal solution and, if so, whether it can be dealt with under the existing law. Only then is it possible to consider the question of criminalisation. I aim to conclude by considering if there are any possible changes in the law which would fall short of criminalisation but which might be able to offer some sort of solution. When discussing these issues, the question of freedom of expression must constantly be borne in mind.
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Holocaust denial in England appears to be a growing problem and it is only over the past twelve months that it has attracted any real attention from the mainstream media. The recent demands for legislation made more people aware of the problem, as did reports that new editions of The Diary of Anne Frank had contained leaflets stating that the diary was a forgery and that the Holocaust never took place. Reports such as this increase demand for legislation criminalising Holocaust denial; however, they do not appear to prompt demand for more general legislation making it an offence to deny crimes or to publish false news.
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In most countries where it has been adopted, legislation making denial of the Holocaust a criminal offence is not part of broader based legislation making it an offence to deny other crimes or other instances of genocide. Those countries which have recently passed legislation criminalising Holocaust denial have not also made it an offence to deny the purges of Stalin and Mao, yet more people were murdered under those two regimes than under the Nazi regime. However, while the Holocaust may not be unique in terms of the number of people killed, it remains unique as an attempt on an unprecedented scale to eliminate an entire people.
Denial of the Holocaust is often accompanied by the allegation that the historical account of the Holocaust is a Jewish fabrication for financial gain: e.g. in 1990 the British Holocaust denier, David Irving, was fined DM 30,000 for denying that Jews had died in the gas chambers at Auschwitz. He had described the buildings which are now visible at Auschwitz as "great dummies for which the German state had paid a fine of sixteen million Deutschmarks." His appeal against conviction was quashed by a Munich court in 1993 and his original fine was trebled (Anti-Semitism World Report 1994). Even where this additional allegation is not made, it can be said to be implied since a large part of the historical account of the Holocaust consists of the survivors' descriptions of their experiences. Holocaust denial therefore represents a considerable insult to the Jewish people as well as an attempt to distort history.
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The fact that Holocaust denial is a problem does not necessarily mean that a legal solution is necessary. Public disapproval of the Holocaust deniers may mean that, in some cases, they are not granted an opportunity to express their opinions. For example, when David Irving was invited to appear on Ireland's The Late Late Show, the show did not go ahead because the journalists who had been invited to appear with him refused to do so. It was public disapproval rather than state censorship which meant that Irving's opinions were not broadcast.
Another way of tackling the problem without using a legal solution has been seen in France. In 1985, five years before Holocaust denial was criminalised in France, a student at Nantes University presented a doctoral thesis which denied that the Holocaust took place. The Secretary of State for Higher Education instituted an enquiry and the professor who had supervised the student was suspended for one year. The university refused to award the student his doctorate. In 1989, an assistant professor at the University of Lyon produced an article in the journal Economies et Societes, a reputable academic journal. The article denied the existence of the gas chambers and, according to Roger Errera, contained 'virulent xenophobic and anti-Semitic ramblings' (Errera 1993). The editor of the journal said that he had not seen the article before and that one of his colleagues had put it in without his knowledge. He asked all recipients of the journal to tear the article out. The author was barred from promotion for two years and assigned to "documentary activities."
These examples show how some cases of Holocaust denial can be dealt with without the need for legislation. Where this approach can be used, it is arguably more satisfactory since it does not involve state censorship. However, for the approach to work, those who wish to take action against the Holocaust deniers must have some sort of power. This may be the power that a university has to discipline its staff and its students or it may be the power which anyone has to prevent something, such as a television interview, that depends on their co-operation.
However, in other cases, those who wish to take action may be powerless to do so in the absence of some sort of legislation. The Skokie case in America is probably the best example of such a situation.
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The American approach to freedom of expression by racists and neo-Nazis was most clearly demonstrated in 1978 by the case of Village of Skokie v National Socialist Party of America. The Chicago Nazi Party had planned a demonstration in the village of Skokie. The village was home to about a thousand survivors of the concentration camps. The party intended to wear Nazi uniforms and to display the swastika. Officials in Skokie applied to the State Court for an injunction to prevent the demonstration. When this was granted, the Nazis appealed to the Federal Court. The Federal Court held that the injunction was in violation of the First Amendment and that the demonstration could go ahead. The Supreme Court's refusal to hear Skokie's appeal against this decision was interpreted as approval of the Federal Court's ruling.
The Skokie case does not illustrate the need for legislation in England since such a situation here could have been dealt with under public order legislation. However, the case does illustrate the conflict between freedom of expression and the idea that the expression of racism should not remain unchecked. This conflict lies at the heart of the Holocaust denial problem. The case demonstrated the need to balance the rights of the inhabitants of the village and the rights of the demonstrators.
The Skokie decision has been heavily criticised, notably by Catharine MacKinnon, for failing to strike the correct balance between the law of freedom of speech and the law of equality and for failing to give due weight to the reactions of the residents of Skokie:
" ... stereotyping and stigmatization of historically disadvantaged groups through group hate propaganda shape their social image and reputation, which controls their access to opportunities more powerfully than their individual abilities ever do; and ... it is impossible for an individual to receive equality of opportunity when surrounded by an atmosphere of group hate.
" ... the reactions of the Jews living in Skokie to having Nazis march through their town are routinely trivialized in the United States as "being offended." The position of those with less power is equated with the position of those with more power, ... as if breaking the window of a Jewish-owned business in the world after Kristallnacht were just so much breaking glass." (MacKinnon 1994)
The point that the right to freedom of expression is not an unlimited right in the context of racist speech has been accepted in English law as is shown by the existence of legislation dealing with incitement to racial hatred.
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The question of whether Holocaust denial should be made a criminal offence is dealt with below. This question is a far more general one which asks whether, in principle, Holocaust denial should come within the scope of the criminal law at all. The criminal law could address the problem under such offences as incitement to racial hatred or the sending of malicious communications without making Holocaust denial an offence in its own right.
The standard liberty-limiting principles which justify the state in bringing a given type of conduct within the scope of the criminal law have been discussed and analysed at length by Professor Feinberg (see Feinberg 1984 and 1985). The two main principles are the harm principle and the offence principle. At the risk of oversimplification, these principles state that, for a given type of conduct to be made a criminal offence, it must be either harmful or seriously offensive to others and the law proposed must be an effective and proportionate way of preventing such harm or offence.
Catharine MacKinnon's arguments, quoted above, suggest that the harm principle is more appropriate than the offence principle when considering the issue of racist speech. To use the offence principle in such cases may even be seen as offensive in itself since it trivialises the effect that such speech may have on the people to whom it refers.
Professor Feinberg, however, considers racial insults under the offence principle. He divides offence into two categories: profound offence and offensive nuisance. His discussion of the first category makes it clear that he does not see the reactions of the Jews in Skokie as trivial. He gives the example of one Skokie resident who had witnessed his mother and fifty other women thrown into a well by German troops and buried alive in gravel. However, it is still questionable whether "offence" is the right word here. Shouldn't mental pain as well as physical pain be within the scope of the harm principle?
A problem with using the offence principle to deal with Holocaust denial is the way in which freedom of expression is used as a mediating principle. According to Professor Feinberg,
"No degree of offensiveness in the expressed opinion itself is sufficient to override the case for free expression, although the offensiveness of the manner of expression, as opposed to the substance, may have sufficient weight in some contexts." (Feinberg 1985, p 44).
This problem may not be fatal, however; Professor Feinberg dismisses as "absurd" the judgment of the Illinois Supreme Court in the Skokie case that the display of the swastika is symbolic political speech (Feinberg 1985, p 87) If the swastika and all that it represents is not an expression of political opinion, isn't it also arguable that the allegation that the Holocaust is a Jewish fabrication is not an expression of historical opinion?
There is already English legislation which makes incitement to racial hatred a criminal offence. It is arguable that such incitement is both harmful and offensive to the racial groups which it targets. Whether we use the harm principle or the offence principle in this context, it is clear that English law has already accepted that it is legitimate to criminalise certain types of racist speech. Therefore, to say that Holocaust denial is a problem which could in principle be within the scope of the criminal law is not to say anything particularly new or controversial. Whether the criminal law can deal with the problem in practice is a question which will be considered below.
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The main relevant area of law here is the law of defamation. The practicalities of using this approach to deal with Holocaust denial will be dealt with below. The main point here is a very simple one: the law allows an individual to protect his reputation if he is accused of, say, cheating at cricket. Given this, shouldn't it consider in principle allowing a group of individuals to protect their reputation if they are accused of having fabricated an account of a crime on the scale of the Holocaust for financial gain?
I have tried to argue that the problem of Holocaust denial is one which in some cases may require a legal solution. The next question to consider is whether English law at present offers such a solution.
The main legislation which is relevant here is the 1986 Public Order Act and the 1988 Malicious Communications Act. Both Acts involve a certain amount of restriction of the right to freedom of expression, so using them to deal with Holocaust denial would be uncontroversial. The law of defamation is also a relevant area, but English law does not provide for a tort of group defamation and so could not be used to deal with Holocaust denial. Possible changes to the law of defamation are considered in the final section of this article.
Section 1 of this Act could be used to deal with Holocaust denial. It makes it an offence to send information which is indecent, grossly offensive or false and known to be false by the sender. For an offence to be committed under this section, one of the purposes of sending the material must be to cause distress or anxiety to the recipient.
Communications denying the Holocaust could be described as grossly offensive and could therefore be covered by s.1. The question must be asked here whether "offensive" is to be defined subjectively or objectively, i.e. whether it is offensive to the person to whom it is sent or whether, regardless of the feelings of the recipient, most reasonable people would find it offensive.
Of the two interpretations, the subjective interpretation would perhaps be less problematic since, for a case to be brought, the sending of the communication must have been brought to official notice. The most likely way for this to happen is by means of a complaint from a recipient. It is unlikely that a recipient would make a complaint in the first place unless he found the communication offensive. Material sent from one Holocaust denier to another would not fall within the scope of this section, but such material would not provoke a complaint in the first place.
If the objective interpretation is the correct one, the court must decide whether a reasonable person would find the communication offensive. The decision would depend upon the facts of the individual case which came before the court, but there would be clear scope for deciding that such material was offensive.
The Act does not specify whether there should be a subjective or an objective interpretation, but the presence of the word "grossly" seems to imply that the communication must be extremely offensive and that it is not sufficient for it to be offensive just to people who are particularly sensitive. If this is the case, it is more likely that "grossly offensive" would be interpreted objectively.
Communications denying the Holocaust could also fall within s.1 by proving both that the information sent was false and that the sender knew or believed it to be so. Given the vast amount of historical sources concerning the Holocaust, proving that the information was false should be unproblematic; the difficulty will lie in proving that the sender knew or believed it to be false. The relevant point here will be what the defendant believed and not what the reasonable man would have believed in the defendant's position. However, given that the judge and/or jury are not able to read the defendant's mind, the reasonableness of the belief must be at least one of the things they consider when deciding whether it is honestly held.
Whether it is alleged that the communication is grossly offensive (s.1(1)(a)(i)) or false (s.1(1)(a)(iii)), it must also be established that one of the defendant's purposes in sending it was to cause distress or anxiety to the recipient or to any other person to whom he intended the contents to be communicated. This second aspect of the offence could be very difficult to prove. People who send communications which deny the Holocaust will probably claim that their purpose is to inform rather than to distress. Such a claim could be difficult to disprove in court.
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The other main piece of English legislation which could be used is the Public Order Act 1986. Part III of this Act relates to incitement to racial hatred. The Act defines racial hatred as, "hatred against a group of persons in Great Britain defined by reference to colour, race, nationality (including citizenship) or ethnic or national origins."
The first thing which is striking about this definition is that it does not appear to include hatred against a group of persons defined by reference to their religion. The Jewish people can be defined merely as a racial group in order to fall under the provisions of this Act, but that fails to take account of what has been described as the "exceptional combination of religious, racial, economic and political roots" which makes Judaism unique (Roth 1993). The Commission for Racial Equality now supports the inclusion of religion. The Report of the Sub-Committee of the Law and Parliamentary Committee of the Board of Deputies of English Jews on Group Defamation, adopted on 15th December 1991, said that the advocacy of hatred against the Jewish community on account of its religious beliefs would amount to the stirring up of racial hatred.
Having defined racial hatred, the Act provides that it is an offence for a person to use words or to publish material which is threatening, abusive or insulting if he intends to stir up racial hatred or if it is likely that racial hatred will be stirred up.
The main problem in this area was identified in the 1985 White Paper, Review of Public Order Law
"The more level-headed the recipients of racially inflammatory material, the more difficult it is to show that racial hatred is likely to be stirred up."
It has been pointed out that the recipients of material intended to incite hatred against a certain group may well be more likely to feel sympathy rather than hatred for them. It would be very difficult to prove that Holocaust denial was likely to give rise to hatred against the Jewish people as a race. Opinion polls taken in England in May 1993 showed that eighty-four per cent of 1,025 people questioned thought that it seemed impossible that the Nazi extermination of the Jews had never happened. (Anti-Semitism World Report 1994).
If it cannot be proved that the material is likely to stir up racial hatred, then it must be proved that the defendant intended to stir it up. This can be difficult to prove, as was demonstrated by the problems experienced in obtaining convictions under the Race Relations Act 1965, which required that intent to incite racial hatred be proved. As Lord Scarman stated in his report on that Act:
"The section [section 6] needs radical amendment to make it an effective sanction, particularly, I think, in relation to its formulation of the intent to be proved before an offence can be established." (Scarman 1975, para. 125).
Bearing these points in mind, although there is scope to bring prosecutions for Holocaust denial both under the Malicious Communications Act 1988 and under the Public Order Act 1986, English law does not seem to be well equipped to deal with Holocaust Denial.
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Since the problem of Holocaust denial in England is increasing and English law does not offer a satisfactory way of dealing with it, it has been suggested that England should follow the example of other countries which have made Holocaust denial a criminal offence.
There is a strong argument that no legal action should be taken against the spreading of lies. As far as English law is concerned, apart from certain very specific examples such as perjury and fraud, it is difficult to think of instances in which the criminal law forbids lying. Certain types of lies, for example defamation and misrepresentation, are also dealt with by the civil law. However, it seems fair to say that, whenever the law deals with lies, it always deals with them in a specific context. Rather than to say that the law takes action against certain lies, it would be more accurate to say that, in a limited number of specific situations, the law imposes an obligation to ensure that anything one does say is true.
The argument that lies should not be controlled by the law is an old one. According to Milton:
"Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter?" (Milton: Areopagitica 58).
In 1859, John Stuart Mill argued that there should be no restriction on the publication of falsehood:
"The peculiar evil of silencing the expression of opinion is that it is robbing the human race ... those who dissent from the opinion still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose the clear perception and livelier impression of truth, produced by the collision with the error." (Mill 1859, 1989 ed. p20).
A more recent argument specific to Holocaust denial, was put forward by Roger Errera (Errera 1993). Errera argues that the French decision in 1990 to make Holocaust denial a criminal offence was "both unnecessary and unwise." He argues that French law already had mechanisms appropriate for dealing with Holocaust denial and also that "denial of the existence of a fact - be it even the worst of crimes - should not be named as an offence, if only because judges are not historians and because this cannot be the province of the criminal law." He goes on to add that the existence of the offence provides a free platform for the revisionists to defend their views in court.
Errera's point about judges not being historians and it being inappropriate for the criminal law to deal with the distortion of history is the essence of this argument. As has been pointed out above, the law does in certain situations impose the obligation not to tell lies, but there is a world of difference between a law which says, "Don't tell lies," and a law which says, "This statement is a lie." In a democracy, is it the role of the law, or the role of the government or court which develops it, to lay down what is false?
Laws which declare certain statements to be facts and which prohibit any disagreement with them have unpleasant connotations since they remind us of totalitarian regimes which produce official (and often incorrect) versions of their country's history. If a fact is so obvious, why does it need the protection of the law? It is almost as if democratic societies have an inbuilt reaction to statements which are declared by the state to be true. Can it even be argued that protection of a genuine fact by law diminishes it by reducing it, in the eyes of some people, to a dogma of the state rather than an objectively verifiable fact? On this view, if a statement is true, the state need not defend it and, if it is false, the state must not defend it.
The main thrust of this argument is that the truth is established and adequately defended by free and open debate. All opinions, true and false, should be allowed to be aired and the true ones will be shown to be such. This is based upon Mill's argument, quoted above, which holds that the concept of truth is meaningless without the concept of falsehood with which to contrast it. In this way, a truth which cannot be challenged is as worthless as a criminal conviction where the defendant had no opportunity to state his case.
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Despite the above arguments, those states which are most affected by Holocaust denial are increasingly deciding to criminalise it. The recent Holocaust denial Bill proposes that a similar law should be adopted in England.
Those who favour this approach recognise the importance of the right to freedom of expression but argue that, in certain circumstances, other rights have equal or greater importance. Which is the more important: the right of the likes of David Irving and Robert Faurisson to deny the Holocaust, or the right of the Jewish people not to be subjected to the insult which Holocaust denial implies? The Skokie case provides an example of this conflict of rights
Milton's argument against restriction freedom of expression, quoted above, is that the truth is established by free and open debate. The context in which he says this tends to suggest that he equates freedom and openness in debate with a lack of state regulation, but a debate which is not regulated by the state is not necessarily free and open. Although the truth about the Holocaust has already been established, the statements of those who attempt to deny the Holocaust are rarely subjected to direct challenge. The refusal of journalists to debate with David Irving is an example of this. To debate with someone in public is to recognise that they have a point, albeit one with which you do not agree. Refusal to debate with Holocaust deniers often means denying them an opportunity to propagate their views, but it can also mean in some contexts that those views appear to go unchallenged. If expression of a certain opinion is so completely repugnant to society that no-one is prepared to debate with those who express it, might it not be acceptable to make a very limited exception to the right of freedom expression by focusing instead on the rights of other people not be insulted by the expression of that opinion?
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If making denial of the Holocaust a criminal offence had no wider implications, a convincing case could be made out for criminalisation. No opportunity would be given to the deniers to justify either what they said or their belief in it, since neither of these issues would be relevant for establishing whether or not an offence had been committed. The only relevant question which the court would have to address would be that of whether the defendant had denied, trivialised or approved of the Holocaust. Such a law would deal with the neo-Nazi aspect of Holocaust-denial since it would demonstrate that such extremist activity was unacceptable. It would also deal with the anti-Semitic aspect since it would send a clear message both to the survivors of the Holocaust and to the Jewish community as a whole that their honour and reputation were important to society.
However, the implications of criminalising Holocaust denial are not just confined to this particular issue; such legislation would set precedents in the context of freedom of expression which could be seen as very dangerous. As examples quoted above show, the law does set limits on the right of freedom of expression. It is arguable, though, that those limits are set by focusing on the effect rather than the content of what is expressed, e.g.: a march might be banned if it would result in a riot; untrue defamatory statements are actionable if they damage someone's reputation; publishing racially abusive material will be an offence if it incites people to racial hatred. There is a world of difference between, say, banning a march because it is likely to cause a riot and banning it because the state does not agree with the opinions expressed by the marchers.
Criminalising Holocaust denial would be a significant move away from the methods which English law has so far used to regulate freedom of expression. Were such legislation to be passed, it is quite possible that it would remain an isolated exception to a general principle, but it could still be seen as a dangerous precedent to set.
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Of those countries which have made denial of the Holocaust a criminal offence, Israel is the only one which does not have a written constitution. Israel is a special case, and perhaps needs to be dealt with first. The Holocaust is part of Jewish history in a uniquely painful way. Because of this, Holocaust denial in a Jewish nation can almost be described as a different type of offence. It is impossible to come up with an analogy with English law, but perhaps it is fair to say that Holocaust denial in Israel is nearer to treason than it is to incitement to racial hatred.
Since other nations which have criminalised Holocaust denial have written constitutions, freedom of expression has constitutional protection. This enables the courts to examine legislation to see if it is constitutional. In Canada, the law prohibiting the spreading of false news was eventually held to be inconsistent with the right to freedom of expression and therefore unconstitutional.
Countries in continental Europe which have criminalised Holocaust denial had different experiences of the Nazi regime and, in some cases, a far richer history of anti-Semitism than England. Legislation criminalising Holocaust denial in those countries may also be in keeping with other laws which attempt to prevent a resurgence of Nazism, e.g. legislation which prohibits the displaying of swastikas or Nazi uniforms.
The increase in the number of countries which have criminalised Holocaust denial demonstrates the increase in the problem and also the desire to tackle it. It does not automatically follow, though, that England should follow their example. Surely it is better first to examine possible ways of dealing with the problem which are consistent with other methods by which English law regulates freedom of expression.
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The aim of this final section is to consider whether existing approaches taken by English law to regulate freedom of expression could be modified so that they could deal with Holocaust denial. The three areas of law which are relevant here are the law of defamation, the Malicious Communications Act 1988 and the Public Order Act 1986. The present ability of these areas of law to deal with Holocaust denial has already been considered.
When modifying existing laws to deal with a specific problem, the wider implications of the changes must also be borne in mind, otherwise adapting a law for one purpose might mean that it is unsatisfactory in other areas.
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One of the reasons for the demand for legislation to deal with Holocaust denial is the argument that such denials are defamatory to the Jewish people in general and to the survivors of the Holocaust in particular. A defamation-based approach would therefore seem to be an appropriate way of dealing with the problem.
One of the advantages of the law of defamation in this context is that there is no need to show that a statement is believed in order to show that it is defamatory. A defamatory statement is one which, if believed, would harm the plaintiff's reputation in the eyes of right-thinking people. This approach is logical: to hold otherwise would mean that the lower a person's reputation, the easier they would find it to prove defamation since people would be more likely to believe defamatory statements about them.
However, if the law of defamation is to be used to deal with Holocaust denial, two main issues need to be addressed: the first is the defence of justification means that such cases allow the deniers to defend their views in court; the second is that English law does not provide for a tort of group defamation. These points are considered below:
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Probably the best known defence to a defamation action is that what has been said is true. Therefore, when using such an action as a weapon against those who deny the Holocaust, one must always remember that to do so may be giving them the ideal platform on which to air their views. This was well demonstrated in a French case in 1991 in which the prominent French Holocaust denier, Robert Faurisson was sued by several associations after he had repeated his views on the Holocaust in an interview. He wished to defend his views in court. The counsel for the plaintiffs asked the court to forbid Faurisson to repeat his views since to do so would be in contravention of the new law forbidding Holocaust denial. When this request was refused, the counsel asked that the public be excluded from the court. That request was also refused. The court held for the plaintiff, but Faurisson only received a suspended fine. The editor of the newspaper which had published the interview was also fined.
Probably the best known illustration of this problem was the Zundel case which was heard in Toronto in 1984. The case concerned the spreading of false news rather than defamation, but the problems involved were very similar. Ernst Zundel, a German immigrant and prominent Holocaust denier, was prosecuted under Section 181 of the Canadian Criminal Code which prohibited the spreading of false news which was likely to cause injury or mischief to a public interest. He had published material which alleged that six million Jews had not been murdered and that the Holocaust was a Jewish fabrication designed to extort money.
Before the case, the provision had been seen as an appropriate way of dealing with Holocaust denial in Canada. The eventual decision, though, came as something of a shock.
One of the main problems with Section 181 was the burden of proof. Under that section, it was for the prosecution to prove that the news in question was actually false. This meant that, in the Zundel case, the prosecution had to prove two things: firstly, that the Holocaust actually took place and, secondly, that Zundel did not believe what he was saying when he alleged that it did not.
To be allowed the chance to argue, against the prosecution, that the Holocaust did not in fact take place, gave Zundel an ideal platform. Former concentration camp guards testified that confessions of Nazis had been extorted by torture; it was alleged that the Diary of Anne Frank was a forgery and that most of the Jews of Europe were still alive. One former concentration camp guard spoke of Auschwitz as if it were a holiday camp rather than a concentration camp He said that it was a haven and that the electrified wire was used to keep people out rather than to keep them in.
Zundel was convicted at first instance. However, the Supreme Court of Canada overturned his conviction in 1992. It held that Section 181 was an unconstitutional provision since it was too vague and might possibly have the effect of restraining legitimate freedom of speech.
The Zundel case illustrates one of the main problems involved in using the courts to deal with Holocaust denial. The main aim of the Holocaust deniers is to propagate their views and such cases can provide a welcome opportunity to do this. Expressing their views in court ensures a wider audience and means that those views are seen to be considered as evidence by those in authority. The Nazis in the Weimar Republic between the wars were very aware of this fact. As Cyril Levitt puts it:
"That the Nazis not only welcomed show trials but actually tried to provoke them is common knowledge. Julius Streicher, editor of the infamous Der Sturmer in Nuremberg, was particularly adept at redirecting the course of his trials. Instead of focusing on the libellous attacks made on the Jewish religion, Streicher managed to turn the proceedings in such a way as to place the Talmud on trial. He and other Nazis were able to harangue the court for hours and to have expert witnesses dismissed for being in the 'pay' of Jewish interests. .. If we change the word 'Talmud' to the word 'Holocaust' we can see how close the strategy of current Holocaust-deniers is to the one adopted by the Nazis" (Levitt 1993).
It could be argued that the main issue in such cases is whether the defendant is believed, not whether he is given the chance to deny the Holocaust. Lies are frequently told in court and in each case it is the role of the court to establish the facts as well as to apply the law. In most cases, it is only by listening to all statements and determining which ones are false that it can do this. However, in the case of the Holocaust, the facts have already been established. Listening to evidence which purports to establish that the Holocaust never took place can give the impression, as in the Zundel case, that the case turns on the legitimacy of the historical account of the Holocaust and not on the alleged conduct of the defendant. If it is not the role of courts to decide history, then perhaps it is better that they should not be seen to make the attempt to do so.
One way of avoiding this difficulty could be for English courts to follow the example of the German courts and take judicial notice of the facts of the Holocaust. The German courts have shown a fairly consistent record of holding that there is no need to establish the facts of the Holocaust in court and of refusing to hear witnesses who allege that the Holocaust did not take place.(2)
Such a decision, though, would probably have to be taken by the courts themselves in the context of each individual case: an attempt to produce a statutory list of facts of which courts would have to take judicial notice would seem very similar to producing an official list of facts which were not open to question.
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Although denial of the Holocaust may be defamatory to the Jewish people, the law of defamation cannot be used unless the law provides for a tort of group defamation. If group defamation is to be used to deal with Holocaust denial, the Jewish people must fall within the definition of a group; they could either be defined as a race or as a religious group. If a tort of group defamation were to be developed, either races or religious groups would have to be covered if the tort were to be used in the context of Holocaust denial.
Developing a tort of group defamation which applied to races and religions would be a very sweeping extension of present English law. Defining which individuals are members of a particular race or religion is bound to be difficult. It would be necessary to decide who would sue on behalf of a particular race or whether any member of that race could sue for defamation of the race as a whole. This problem might be easier for religions, which tend to have recognised leaders who could sue on behalf of the religion.
Although there would be practical difficulties in defining and developing such a tort, it is arguable that there is a far more serious problem here in that the existence of such a tort would be bound to have an effect upon freedom of expression.. In particular, it could restrict the willingness of the press to express opinions. Could press comments criticising the conduct of the Taliban in Afghanistan or commenting on the recent series of strikes in France be actionable under certain circumstances? Comments by individuals in the context of the Northern Ireland conflict might be actionable. Ought they to be? The media are already aware of the risks of defamation actions from individuals; extending this awareness to all reports on racial or religious issues might have a very inhibiting effect upon freedom of expression.
Detailed discussion of the problems involved in developing a tort of group defamation is outside the scope of this article. The main point that is relevant here is that great care needs to be taken in suggesting wide-ranging changes in the law as solutions to very specific problems. If the law is to be changed to deal with Holocaust denial, the changes should be far more specific.
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As described above, although the Malicious Communications Act could be used to deal with Holocaust denial, it may be difficult to prove that material is false and believed to be false by the defendant or that it is offensive.
Requiring the prosecution to prove that Holocaust denial was false could give the impression that it was the historical account of the Holocaust which was on trial rather than the defendant. This problem could be dealt with as described above if the courts were prepared to take judicial notice of the facts of the Holocaust. However, under this Act, the defendant's belief in the falsehood of the communication is also relevant. Although he would not be allowed to argue that his views were correct, he would be allowed to argue that he believed that what he was saying was true. There would be a major difference in what he would be trying to prove but the arguments which he would advance in both cases would be very similar. This problem could not be dealt with by the court's taking judicial notice of the facts. Removing the reference in the Act to the defendant's beliefs could solve this problem in the context of Holocaust denial, but it would also have the effect of altering the mens rea of the offence for all other purposes and so would not be acceptable in the wider context.
If the part of the Act which deals with false communications cannot be altered satisfactorily, are there any changes which could be made to the part which deals with offensive communications?
One possibility would be to add a section to the Act which stated that communications denying the Holocaust were deemed to be offensive and that, in the case of such communications, the sender's purpose would be irrelevant.
Such a provision would bring Holocaust denial within the scope of the Act without prejudicing its general application. The end result, in some ways, is similar to criminalising Holocaust denial, except that the focus is on whether the denial is offensive rather than whether it is false. However, this solution suffers from some of the same problems as criminalisation in that it can be seen to set dangerous precedents for freedom of expression. It can be seen as unacceptable for the state to be able to forbid the expression of any opinion by declaring it to be irrebuttably offensive.
Although the Malicious Communications Act could be adapted to deal with Holocaust denial, such adaptations would affect the wider application of the Act and could be seen to set similar precedents to a law criminalising Holocaust denial.
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The offence of incitement to racial hatred under the Public Order Act is the last area of English law to be considered to see if it could be modified to deal with Holocaust denial. For the offence of incitement to racial hatred to be committed, it must be shown either that the defendant intended to stir up racial hatred or that it was objectively likely that racial hatred would be stirred up. The potential difficulties in applying this provision to Holocaust denial have been described above.
Proving the necessary intent on the part of the defendant has been notoriously difficult, as Lord Scarman identified in his report. Proving that it is objectively likely that racial hatred will be stirred up can be even more difficult since the more outrageous the defendant's claims, the less likely people are to believe them.
A possible way round this problem might be adopt the approach taken under the law of defamation where a statement does not have to be believed or even believable to be defamatory Such an approach could be applied to the offence of incitement to racial hatred by either replacing or supplementing the objective likelihood test with the concept of a racially inflammatory statement. Such a statement could be defined as one which, if believed, would be likely to stir up racial hatred.
A statement that the historical account of the Holocaust was a Jewish fabrication for financial gain would certainly be classed as a racially inflammatory statement under this approach. Holocaust denial which did not include this allegation could also be covered because it implies that the statements of the survivors are fabricated. In any case, most people who deny the Holocaust try to explain away the overwhelming historical evidence by saying that it was fabricated.
Such a change in the law would mean that the law against incitement to racial hatred would become a suitable way of dealing with Holocaust denial. Since the change would reflect the position which has always been accepted in the context of defamation, it would not create a type of restriction of freedom of expression which has not already been accepted. The change might also go some way to remedying the general deficiencies in this area of law which have already been recognised, e.g. by Lord Scarman.
The public order approach is the one that has been taken more recently by the Canadian courts. Following Zundel, the next main case to deal with Holocaust denial was that of Keegstra. James Keegstra was a Holocaust denier in Alberta who taught his views to schoolchildren. He was prosecuted under s.319(2) of the Canadian Criminal Code which prohibits incitement to hatred on grounds of colour, race, religion or ethnic origin. Section 2(b) of the Canadian Charter of Rights and Freedoms protects the right to freedom of expression, but the Supreme Court held that s.319(2) was an acceptable limit on freedom of expression.
In reaching this conclusion, the court used the principle of proportionality. In applying this principle, it had to decide whether the law was carefully designed to achieve the objective in question, whether the way in which it achieved the objective restricted freedom of expression only as far as was necessary and, finally, whether the restrictions would have adverse effects of freedom of expression such that they should not be allowed even if the first two requirements were satisfied.(3) The court noted that s.27 of the Canadian Charter placed great emphasis on multicultural toleration and also said that laws suppressing incitement to racial hatred were intended to reduce the harm - note, not "offence" - that such incitement caused.
The Keegstra case provides an example of how the criminal law can deal with Holocaust denial while keeping restrictions on freedom of expression to an absolute minimum. Canada has brought the problem within the scope of the criminal law without criminalising Holocaust denial; it has also given the courts the opportunity to give due weight to freedom of expression without allowing the Holocaust deniers to use the courts as a platform. I suggest that it is this example, rather than that of countries in continental Europe, that those advocating a Holocaust denial law in England would be better advised to follow.
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Holocaust denial is a deliberate lie, a distortion of history, an insult to the Jewish people and an attempt by Nazi sympathisers to explain away the most evil aspect of the Nazi regime. It is a problem that in some cases may require a legal solution, but it does not follow from this that criminalising Holocaust denial is the best way forward. English law accepts that the right to freedom of expression is not an unlimited one, but it does not seek to limit the right by laying down certain things that people are not allowed to say; that would be a very superficial way of tackling a very complex problem.
English law does not at present offer an adequate solution to the problem, but it does accept that racist speech comes within the scope of the criminal law. Instead of criminalising Holocaust denial, might it not be better to undertake a wider review of how effectively the present law deals with the problem of racist and anti-Semitic speech? A satisfactory reform of the law should give a definition of what is unacceptable about racist speech and Holocaust denial should fall within that definition. The changes which I suggested to the offence of incitement to racial hatred would meet these criteria.
The result of taking such an approach would in some ways be similar to criminalising Holocaust denial in that a person who denied the Holocaust could be convicted of a criminal offence. There would a crucial difference, though: instead of being convicted of making an allegation which the state did not allow him to make, the defendant would be convicted of an offence which treated Holocaust denial as an example of unacceptable racist speech. Such an approach would be far more consistent with the way in which English law generally regulates freedom of expression.
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Errera, R (1993) "French Law and Racial Incitement: On the Necessity and Limits of the Legal Responses" in Greenspan and Levitt (eds) Under the Shadow of Weimar (Praeger).
Feinberg, J (1984) Harm to Others (Oxford: Oxford University Press).
Feinberg, J (1985) Offense to Others (Oxford: Oxford University Press).
Institute of Jewish Affairs (1994) Anti-Semitism World Report (London).
MacKinnon, C (1994) Only Words (London: Harper Collins).
Mill, JS (1859) On Liberty (Cambridge Edition, ed. Collini, 1989).
Milton, J (1664) 'Areopagitica' in Milton, J Complete English Poems, Gordon Campbell (ed), 1990, (London: Dent).
Mullender, R (1993) "The Principle of Proportionality in Canadian Charter Adjudication" Bracton Law Journal 63.
Roth, SJ (1993) The Legal Fight Against Anti-Semitism: A Survey of Developments in 1992 (Institute of Jewish Affairs, London).
Scarman, Lord Justice (1975) Report of the Inquiry into the Red Lion Square Disorders of 15th June 1974 (London: HMSO) Cmnd. 5919.
Stein, E (1987) "History Against Free Speech: The New German Law Against the 'Auschwitz' - and Other - 'Lies'" 85 Michigan Law Review 277.
White Paper (1985) Review of Public Order Law (London: HMSO) Cmnd 9510.
1. I make no attempt to consider Scots law in this article. Back to text.
2. For a detailed account of the approach of the German courts before Holocaust denial in Germany was made a criminal offence, see Stein 1987. Back to text.
3. For a full discussion of the Canadian Supreme Court's use of the principle of proportionality in Keegstra, see Mullender 1993. Back to text.