EU: ECtHR allows Restriction of Freedom of Expression of Teacher who made his Controversial Views Public

The European Court of Human Rights (“ECtHR”) does not regard disciplinary sanction of teacher, who violated his duty of discretion, as a violation of the freedom of expression.

The Mahli v. Belgium case of 3 September 2020, concerned a teacher (public servant) who had published controversial views, which could aggravate the pre-existing tensions within a school. This judgement makes clear that public servants, and especially teachers, have to be careful when they wish to weigh in on a controversial debate, and that the authorities have a clear margin of appreciation in limiting their freedom of expression. It is difficult to make a direct analogy for employees in the private sector, but it seems certain that the specific circumstances of the case have to be taken in to account, in order to determine whether or not an employee has crossed the line.

The facts concerned an Islamic religion teacher, Mr. Mahi, from a school in the French-speaking Community of Belgium. In the aftermath of the Charlie Hebdo terrorist attacks of 2015 in Paris, the situation in the school got out of hand, as certain teachers and students who had defended Charlie Hebdo were being harassed by other students. There were certain accusations against Mr. Mahi, from which he wished to defend himself by publishing an open letter. In this letter, he commented on the Charlie Hebdo attacks. He also expressed views on homosexuality, the media, political leaders and the judiciary, and mentioned an author who had been convicted in France of Holocaust denial, describing him as his “mentor”.

The Federal Centre for Equal Opportunities and Action against Racism and Discrimination found that Mr. Mahi’s remarks did not contravene anti-discrimination legislation, and did not constitute criminal acts as such, but nonetheless voiced concern that such remarks had been made by a teacher. As a reaction to the letter, the French-speaking Community, finding that Mr. Mahi’s remarks had been in breach of his duty of discretion, ordered his transfer to a school 50 km from his current school, as a disciplinary measure. The Belgian Conseil d’État dismissed an application by Mr. Mahi to have that order set aside, stating that Mr. Mahi’s remarks could legitimately be regarded as incompatible with his duty of discretion, particularly in view of the tense atmosphere prevailing in his school in the wake of the attacks in Paris.

The European Court of Human Rights had to decide whether the disciplinary sanction formed a breach of Mr. Mahi’s right to freedom of expression under art. 10 ECHR. The disciplinary sanction was based on a legal obligation of discretion (laid down in a Royal Decree), therefore the condition of legality had been fulfilled. As regards the necessity of the interference in a democratic society, the European Court of Human Rights pointed out that whenever the right to freedom of expression of public servants was at issue, the “duties and responsibilities” referred to in Article 10 § 2 ECHR (on the justification of a restriction of the freedom of expression) assume a special significance, which justify a certain margin of appreciation for the authorities. This is important for the Court in determining whether the interference was proportionate.

The European Court of Human Rights took note of Mr. Mahi’s argument that he had felt the need to react to certain accusations levelled against him. However, his consideration alone was insufficient to justify a breach of his duty of discretion and the requirement that he shows moderation in exercising his freedom of expression, given the specific context in which his remarks had been made. Especially as he did not express his views spontaneously during an oral exchange, but had written them down and published them so his students could read them, which could have aggravated the tensions in the school in question.

Therefore, the Court held that the disciplinary sanction was proportionate and dismissed the claim that Mr. Mahi’s freedom of expression had been violated. The tense context of the circumstances, and the fact that children were involved, definitely did not help Mr. Mahi’s case.

Source: ECtHR 3 September 2020, no. 57462/19, Mahi v. Belgium (in French only)