What to do with the buried giant? Collective historical memory and identity in the freedom of expression case law of the European court of human rights

There are many fields in which this tension between remembering and forgetting comes to the fore, not least, for example, in areas such as transitional justice, the writing and teaching of history,and public memorialisation. This chapter seeks to examine the issue through the prism of the free speech jurisprudence of the European Convention on Human Rights (the ‘Convention’ or ‘ECHR’) in which the European Court of Human Rights (the ‘Court’ or ‘ECtHR’) has grappled with instances where words spoken have sought to impact upon the collective historical memory, and thus the identity and dignity of certain groups. With that in mind, this chapter begins with a brief introduction of the concept of collective memory, followed by a summary of some the arguments commonly advanced, both for and against, remembering and forgetting. It then proceeds to trace the emergence of collective historic memory connected to identity and dignity, as a justiciable concept in the jurisprudence of the Court within the scope of the right to respect for a private life under Article 8, before advancing several critiques of the Court’s approach. It then draws a comparison between the use of Article 8 as a juridical vehicle for collective memory as a human right, with that of Article 9, the right to freedom of thought, conscience and religion. We conclude that having held out the promise of collective memory as a human right under Article 8 the Court, perhaps for good reasons, seems ill-at-ease with following through on this development.

This is an Accepted Manuscript of a book chapter published by Routledge in Personal Identity and the European Court of Human Rights ed. Jill Marshall (Routledge, 2022), pp. 152 – 176. Available online: https://doi.org/10.4324/9781003154556-10.