Double edged sword
It has been exactly 20 years since the 9/11 attacks took place in the United States. From that moment on, the struggle against international terrorism has been a key point of political agendas all over the world. Up to the present, counter-terrorism laws have been continuously debated, adopted and amended in order to try to ensure the safety of citizens and, above all, the survival of the state community.
Among counter-terrorism measures, some are targeted against so-called terrorist speech. In other words, such legal tools criminalize statements – in all forms, included online – that directly or indirectly incite or encourage the commission of terrorist acts, including by glorifying terrorist attacks of the past.
If one looks at countries of the European Union (EU) it will be evident as, in the last two decades, almost all criminal codes were amended either to introduce ex novo provisions sanctioning incitement, apology, even glorification of (international) terrorism or to harshen already existing ones. For instance, in Italy, art. 414 of the Criminal Code was amended in 2015 to increase penalties if apology of terrorism is committed through information technology tools.
The criminalization of terrorist statements may trigger tension between the need to protect security and the freedom to express one's (political, religious) thoughts. There have been many cases in which courts were called to draw the line between "terrorist speech" and the legitimate expression of one's (even "extreme") ideologies.
To this already complex background, another point should be added. In some countries – a minority, at least considering the EU Member States – criminal law provisions punishing terrorist speech explicitly cover cases where the victims of terrorist acts (or their relatives) are humiliated. These norms provide for higher sanctions for humiliation than for "ordinary" terrorist speech. For example, this happens in Spain (art. 578 of the Spanish Criminal Code) and in Lithuania (art. 250 of the Lithuanian Criminal Code).
The explicit inclusion of victims' humiliation in the drafting of anti-terrorist speech norms is undoubtedly conceived as a way to protect victims' dignity. It is well-known that human dignity is a value that grounds post-WWII constitutionalism and has been defined as the "source" of any rights and freedoms that contemporary constitutions enshrine.
Therefore, ad hoc provisions making the humiliation of victims a criminal offence should be praised as a way to enhance a basic value of contemporary democracies and, at least prima facie, might be recommended as "good practice". However, a risk may lurk behind, i.e. they might be used (or, rather, abused) in order to make the repression of speech easier. In other words, public authorities may mischievously allege that certain statements violate dignity of terrorist victims, just to curb freedom of expression. And the fact that human dignity, such a basic value, is called into play, may make objection to such allegations very hard. This is especially likely to happen in so-called uncertain or illiberal democracies, where anti-terrorism policies often hide strategies to silence political dissent. In such a scenario, the very aim of anti-humiliation provisions would be frustrated and, consequently, human dignity would be overridden.
This is why norms criminalizing the humiliation of terrorist victims are double-edged swords: either they can boost human dignity or the can end up undermining the very basis of democracy. This risk exists, indeed, with many counter-terrorism measures, and the awareness of policy-makers as well as judges should be raised in that regard. Ultimately, laws that we use to prevent threats to democracy must not be turned into a way for democracy to harm itself.