(a) The evolution of case law under Article 8

In Aksu, the applicant, of Roma origin, had brought two applications based on negative stereotypes about Roma people. The first application focused on passages in an academic book, The Gypsies of Turkey, where the applicant said that Roma people were depicted as ‘engaged in illegal activities, [living] as “thieves, pickpockets, swindlers, robbers, usurers, beggars, drug dealers, prostitutes and brothel keepers” and… polygamist and aggressive’.Footnote ⁴ The second application focused on the definition of the Turkish word çingene (gypsy) in two dictionaries, which included a pejorative meaning of ‘miserly’. The ECtHR examined arguments that the applicant's rights were infringed under Article 8, which provides a right to respect for private and family life, as follows:

Furthermore, the Court considered whether there was an interference with Article 14 taken in conjunction with Article 8. Article 14 is concerned with a prohibition of discrimination, in the following terms:

It is important to note that at issue in this case was the alleged negative expression of third parties – ie non-state parties. It is well recognised that Article 8 imposes both negative and positive obligations on the state; while the central objective of the article is to protect individuals against arbitrary interference by public authorities, it may also require the state to take positive steps to promote a respect for private life, which can include the adoption of measures relating to the way that individuals engage between themselves.Footnote ⁵ In other words, a claim that the state has violated its positive obligations under Article 8 in the context of negative expression can be understood as a claim that the state has not taken sufficient steps to protect a person from the negative expression of private individuals.

Both of the applications were dismissed in Aksu. In relation to Article 14, the ECtHR said that the case did not involve a difference in treatment, given that the applicant had not succeeded in producing prima facie evidence that the publications in question had a discriminatory intent or effect.Footnote ⁶ It therefore proceeded mainly in analysing the case under Article 8, and ultimately held that the domestic courts had been entitled to find that the applicant's characterisation of the pejorative nature of the book was inaccurate,Footnote ⁷ and that the dictionaries legitimately recorded language as it was used.Footnote ⁸ Significantly, however, the ECtHR did accept that such negative stereotyping could interfere with Article 8, in the following key passage (with emphasis added):

Therefore, although the applications were dismissed in Aksu, the Court provided an important statement on the applicability of Article 8 in the context of negative stereotyping, although it is also significant that the Court said that this stereotyping must reach ‘a certain level’.

It should be said as well that while the Court considered both Article 8 and Article 14 on negative expression in Aksu, it is well established that the protection from discrimination under Article 14 is not a freestanding right, and must be used in conjunction with another substantive provision in the Convention,Footnote ¹⁰ such as Article 8. For the purposes of this paper, therefore, we emphasise the importance of Article 8 in the context of negative expression, and of a potential right to live without stigma, even though the claimant may also seek to rely, in addition, on Article 14.Footnote ¹¹

While the applications were dismissed in Aksu, the case is nevertheless significant because the approach that was taken was subsequently applied in a number of other cases where, by contrast, an interference was found. In Lewit v Austria,Footnote ¹² for example, a Holocaust survivor who had been deported to the Mauthausen concentration camp complained about an article in a journal in Austria entitled ‘The liberated from Mauthausen as mass murderers’ (Mauthausen-Befreite als Massenmörder). The article described the conduct of survivors, following their release in 1945, as ‘[r]obbing and plundering, murdering and defiling’ and as criminals who ‘plagued’ the surrounding country. There was no effective remedy available to the applicant under Austrian law, and the ECtHR held that his rights under Article 8 had been infringed.

Furthermore, in two important and recent decisions, Budinova and Chaprazov v Bulgaria,Footnote ¹³ and Behar and Gutman v Bulgaria,Footnote ¹⁴ which concerned public statements involving anti-Roma or anti-semitic speech, the ECtHR found a violation of Article 8 read in conjunction with Article 14. The Court also provided further guidance on the interpretation of Aksu, and the ‘level’ of seriousness that must be reached. In particular, the Court said that:

This guidance thus indicates that there are a great number of factors that could be relevant to the Court's determination. It is important for our examination on stigma that the Court mentioned the ‘history of stigmatisation’, but this was noted here as only one relevant factor among others. The Court also explained that none of these factors takes precedence, and it is the ‘interplay of all of them’ that leads to a conclusion on whether the level of seriousness is reached.Footnote ¹⁶ It also added that another important consideration could be the ‘overall context of each case – in particular the social and political climate prevalent at the time when the statements were made’.Footnote ¹⁷ Although this guidance thus provides some indication of the general approach that the Court is taking, it is also clear that the decision in cases will be dependent on their particular facts, which might make it difficult to predict the outcome of a case in the future. It is certainly understandable that not all negative expression can be sufficiently serious to constitute an interference, but determining the ‘level’ of seriousness required does not seem straightforward.

In addition to these cases on negative stereotyping, some other recent developments indicate a similar willingness to explore related issues with respect to negative expression and Article 8, but without any explicit reference to Aksu. In Beizaras and Levickas v Lithuania, for example, a gay couple posted a picture online of themselves kissing, and a large number of offensive messages were posted underneath.Footnote ¹⁸ To give just two examples, they include: ‘Burn the faggots, damn it’ and ‘I'm going to throw up – they should be castrated or burnt; cure yourselves, jackasses – just saying’. The ECtHR were clear that the posts ‘affected the applicants’ psychological well-being and dignity, thus falling within the sphere of their private life.’Footnote ¹⁹ The public authorities refused to use criminal or civil sanctions against the posters, and the Court found a breach of Article 8 combined with Article 14:

In this case, the court did not refer to Aksu, but in Budinova and Chaprazov and Behar and Gutman it was thought that the approach in Beizaras and Levickas was relevant to consider more generally in relation to the applicability of Article 8, and the level of seriousness required.Footnote ²¹

Also significant to the interpretation of Article 8 and the level of seriousness is the case of F.O. v Croatia. Footnote ²² The case involved a pupil who was late for a class and was told by a teacher he was ‘a moron [kreten jedan], an idiot [idijot], a fool [budala], hillbilly [seljačina], a stupid cop [žandar glupi]’.Footnote ²³ On other occasions the teacher called the pupil a ‘fool’. The pupil suffered acute anxiety disorder. The court emphasised that Article 8 covered ‘a person's physical and psychological integrity … and extends to other values such as well-being and dignity, personality development and relations with other human beings …’ It acknowledged that ‘[i]n order for Article 8 to come into play, however, an attack on a person must attain a certain level of seriousness and be made in a manner causing prejudice to the personal enjoyment of the right to respect for one's private life’.Footnote ²⁴ The court concluded that

The court in reaching this conclusion emphasised that the victim was a minor and the comments were uttered by a person in authority.

From the above review of the case law, it does seem therefore that the ECtHR is willing to consider that negative expression from third parties can interfere with Article 8, in a variety of contexts. These appear to be significant developments. It is true that one important limitation is the interaction with free speech, and in many cases the Court will have to balance an applicant's right to respect for his or her private life against the importance of protecting freedom of expression, by reference to Article 10. Nevertheless, in a recent analysis of free speech cases, Jacob Mchangama and Natalie Alkiyiadou noted that the cases of Aksu and Beizaras and Levickas seem to have modified the previous understanding which is that states may limit freedom of expression under Article 10, but are not explicitly obliged to do so.Footnote ²⁶ The developing jurisprudence on offensive expression under Article 8 thus seems to have affected the potential scope of Article 10.

(b) Identifying the harm in offensive speech and statements

While we can see more broadly that the case law seems to be recognising that the use of offensive expression can engage Article 8, there is some ambiguity as to how the cases can be tied together, and it is difficult to predict how future cases will be decided.

The first point to emphasise, in an attempt to understand the cases as a whole, is the Court's repeated emphasis that the impact of the stereotyping or negative expression must be of sufficient severity. Many insults will not reach that level. An example of a different case where the level was not sufficient was Vučina v Croatia. Footnote ²⁷ In this case, a picture of the claimant was published alongside a statement which incorrectly said that she was the wife of the mayor. The Court found that while the claimant was distressed, and felt that her reputation had been harmed, this was not at a level relevant for Article 8.

There are two further points which we wish to highlight in relation to the required level of severity, and which we think can assist us in further understanding the case law, and its relevance to stigma, which we shall explore in more detail shortly. First, the jurisprudence indicates that the status of the person issuing an insult is important. In Budinova and Chaprazov and Behar and Gutman, one of the factors listed as relevant to the level of seriousness, as mentioned above, was ‘the position and status of [the] author’ of the negative statements.Footnote ²⁸ In F.O. v Croatia,Footnote ²⁹ weight was placed on the fact that it was a teacher who was making the remarks at issue, and it is unlikely that the words of a fellow pupil would be seen as carrying the kind of authority that would challenge a person's sense of identity. By contrast, a claim will be greatly strengthened if the stereotyping or stigma appears to represent the state's position, as could be the case where statements are made by politicians. In Nepomnyashchiy v Russia,Footnote ³⁰ which is another case involving negative public statements and that referred to Aksu, the Court stated that it ‘is of crucial importance that politicians, including parliamentarians, avoid making statements promoting hatred or intolerance in their public speech’ and that there is a risk that public statements of high-ranking public officials ‘may be perceived as the State's official position’.Footnote ³¹

The second point we wish to highlight is that the impact of the terminology will be greater if targeted at a member of a group which is already maligned or disadvantaged within society. The misattribution in Vučina v Croatia Footnote ³² was not combined with currently existing negative attitudes towards the claimant, and she was not being associated with a disadvantaged group. By contrast, the boy in F.O. v Croatia Footnote ³³ was being labelled with offensive terminology which drew on disablist attitudes, and in Beizaras and Levickas v Lithuania Footnote ³⁴ the offensive remarks could be seen in the context of a cultural setting which was not supportive of the applicant's sexuality. In Budinova and Chaprazov and Behar and Gutman, the court referred to ‘the characteristics of the group’ as a factor to assess, and this included, as mentioned above, the group's ‘vulnerability or history of stigmatisation, and its position vis-à-vis society as a whole’.

These two points are particularly important in understanding the nature of the claims at issue, because if the wider societal context and positions of power between the parties must be considered, there are stronger reasons to think that a central harm at issue is stigma.

(a) The harm of stigma

It is certainly understandable that negative stereotyping can be recognised as harmful. Stereotypes might be understood as a form of categorisation,Footnote ³⁵ or beliefs that are widely accepted about certain groups of people,Footnote ³⁶ and a reason to contest them is that they appear to limit an individual's identity to supposed group characteristics, which can impair their sense of dignity and their personal autonomy.Footnote ³⁷ Through stereotyping, people are not seen as individuals, but are judged based on their membership of a group in a reductive manner. However, while all negative stereotyping of a group might be hurtful to members of the group, the harm involved is not always identical, and stereotyping may or may not be linked to deeper injustice within society; whereas any person can potentially experience negative stereotyping, not all persons can experience structural discrimination. Iyiola Solanke gives the example of young, white British men, who have been stereotyped in an article as drinking too much, and for being lazy, promiscuous, and rude.Footnote ³⁸ While this can lead to offence to members of this group, Solanke remarks that they are ‘neither tainted for life nor subjected as a result to discrimination’, given that young, white British men are the most likely group to attend university and obtain the most important senior leadership positions in politics and industry.Footnote ³⁹ As Catharine MacKinnon writes, there can be equal stereotyping about white men and black women, but the substance of the stereotype is not equal, as it can relate to the promotion of male dominance and white supremacy within society.Footnote ⁴⁰

Prejudice, by contrast, is a concept which relates to stereotyping, but it might best be understood as a negative attitude, usually originating in the minds of individuals.Footnote ⁴¹ Both stereotyping and prejudice can be distinguished from stigma if the latter is understood as including societal support through social power, as we shall explain further below.Footnote ⁴² Thus, a member of a stigmatised minority group can have prejudicial views about members of the majority in society, but it is still only the minority individual who experiences stigma, and not the members of the majority.Footnote ⁴³ While prejudice refers to an attitude, it need not be supported by society.Footnote ⁴⁴

Discrimination also needs to be distinguished as having a separate meaning, which relates to differences in treatment based on group membership. While prejudice refers to an attitude, discrimination is best conceived as an act.Footnote ⁴⁵ Not all forms of discrimination attract legal protection, or would indeed necessarily be considered to be wrongful, and, in the context of the ECHR, for example, and as mentioned above, it is well established that the protection from discrimination under Article 14 is not a freestanding right, and must be used in conjunction with another substantive provision in the Convention.Footnote ⁴⁶

Stigma can thus be understood as going beyond negative stereotyping and prejudice.Footnote ⁴⁷ It is also conceptually distinct from discrimination, as the latter involves actual treatment, and discrimination can occur because of stigma, but not necessarily. The term stigma originates from the same Greek roots as in the verb ‘to stick’, meaning to pierce, or to tattoo,Footnote ⁴⁸ and it is associated with the idea of a ‘mark’, or a branding, or a label, that distinguishes an individual from others, and in a way that is widely recognised and supported in society. In his seminal work on stigma, Erwin Goffman writes how for the Greeks the term stigma referred to ‘bodily signs designed to expose something unusual and bad about the moral status of the signifier’ and that the ‘signs were cut or burnt into the body and advertised that the bearer was a slave, a criminal, or a traitor – a blemished person, ritually polluted, to be avoided, especially in public places’.Footnote ⁴⁹ The term has not always had entirely negative connotations, and the earliest recorded use of the word stigma in English referred to religious stigmata, which were seen as positive and a sign of holiness.Footnote ⁵⁰ In modern use, however, the word has negative connotations that refer back to its origins.

In a highly influential article on the definition of stigma, Bruce Link and Jo Phelan explain how a move towards stigmatisation includes negative stereotyping, but also goes beyond this to include disadvantageous outcomes, in the context of an imbalance of power. For them, stigma exists when certain interrelated components converge.Footnote ⁵¹ First, individuals identify and name human differences. Secondly, dominant cultural beliefs tie labelled persons to negative stereotypes. Hence in Grzelak v Poland,Footnote ⁵² the fact a pupil who did not want to study classes on religion was given a blank mark in their formal records was a ‘form of unwarranted stigmatisation’,Footnote ⁵³ which breached Articles 9 (on freedom of thought, conscience and religion) and 14 of the ECHR. The Court placed particular weight on the fact that the absence of a mark had a specific connotation and distinguishes the persons concerned, and that this has ‘particular significance in respect of a country like Poland where the great majority of the population owe allegiance to one particular religion’. Thirdly, labelled persons are categorised in groups, which creates a division between ‘us’ and ‘them’.Footnote ⁵⁴ Fourthly, labelled persons experience ‘status loss and discrimination’ which lead to inequality in outcomes. Finally, the authors say that stigma occurs ‘in a power situation that allows the components of stigma to unfold’, and that

Thus, stigma – on this understanding – involves not just a negative judgment and categorisation, but is linked to power: in particular, the power of a person in authority to determine the groupings of society, the negative associations attached to those groupings, and the allocation of membership. As Barnett et al explain, stigma can be seen as a form of social control.Footnote ⁵⁶

Having said this, an instance of stigmatisation is not necessarily wrong. We can think that it is legitimate, for example, that the labelling of criminal offences, or of people as criminals, should be stigmatising. We note as well that references to stigma do not always refer to the concept as outlined above; sometimes, there is a reference to the stigmatisation of an individual without the need for group membership, or the term is used more broadly in the absence of power.

There is a further important aspect of stigma which we wish to highlight. For many – maybe all – people, their identities are formed though associations and relationships with others, be that as a member of a family, a social club, or a religion.Footnote ⁵⁷ These associations are important for building up solidarity, combatting loneliness, and giving people a sense of value. Associating with others who have similar interests, beliefs, or culture can provide a significant source of support. In stigmatisation, however, these associations are turned as tools against the individual members. The associations which should be a source of pride, reassurance and value are manipulated by those with power to disadvantage their members. There is, therefore, a very particular social harm which stigmatisation produces. In fact, on some accounts, what matters most to us in life is our relationships, and perhaps our most commendable human characteristics involve a wish to care for others. The ‘marking out’ and exclusion that results from stigma is completely at odds with this, and brings out instead, perhaps, some of our worst human tendencies. Instead of people coming together, stigmatisation pulls people apart.

We might therefore add another reason why stigma is a particularly helpful concept in understanding the evolution of jurisprudence, which is that stigma seems to constitute an especially strong form of dignitary harm. Human dignity is often thought to be the foundation for human rights,Footnote ⁵⁸ but at the same time it is notoriously difficult to define, and can be criticised for being too uncertain.Footnote ⁵⁹ Sandra Fredman suggests that dignity can be given specific content through a focus on the harms of stereotyping, prejudice, and stigma,Footnote ⁶⁰ although, as we have seen above, there are reasons to think that stigma appears to be the most harmful. Indeed, Solanke suggests that stigma can be particularly theoretically important in understanding anti-discrimination law. Whereas traditionally discrimination focuses on individual harm, ‘stigma by definition throws a spotlight on society’.Footnote ⁶¹ Stigma highlights how the devaluation of a person results from a collective process that is socially maintained.Footnote ⁶² As Rosemarie Garland-Thomson has said, stigma theory ‘reminds us that the problems we confront are not disability, ethnicity, race, class, homosexuality, or gender; they are instead the inequalities, negative attitudes, misrepresentations, and institutional practices that result from the process of stigmatisation’.Footnote ⁶³ As such, combatting stigma should be seen as the responsibility of society, and measures need to be taken at the public level.Footnote ⁶⁴ This means that group identity and support can return to their rightful positive role.

(b) Stigma in ECtHR case law, and the scope of Article 8

Having looked at the theoretical material around stigma, if we return now to some of the ECtHR jurisprudence we discussed above, we think that insights on the concept of stigma can help us understand the Court's analysis. With respect to the repeated references by the ECtHR to the need for the negative expression to reach a ‘certain level’ of seriousness, as we analysed above, we suggest that it would be unlikely that this level would be reached in the absence of stigma, even if the analysis is not expressly centred on this. In particular, while the Court in Aksu referred to ‘any negative stereotyping of a group’, it might be thought that this cannot refer to just any group; for the stereotyping to be sufficiently serious, one could think that the group needs to be one that is already stigmatised, even though this is not what the Court specifically said. Thus, even when the Court's analysis was not centred explicitly on stigma, it appears that a focus on the concept of stigma can better explain the development of the jurisprudence.

The cases themselves do seem to be concerned with stigma. For example, in Aksu, while a violation of Article 8 was not found in that case, there seemed to be no doubt that there was stigmatisation of the Roma community. Stigma also seemed to be relevant in F.O. v Croatia Footnote ⁶⁵ and Beizaras and Levickas v Lithuania. Footnote ⁶⁶ In the former case, the teacher had used offensive terminology relating to those with mental disabilities, and in the latter case, offensive terms were used about the gay community. In both cases the terminology was used to draw on negative attitudes towards a group, as a method of targeting the individual. This challenged their identity and dignity, not just by causing them offence, but by denying their individual identity and dignity as separate individuals. They were treated as ‘one of those kind of people’ rather than valued and recognised as a person with their own identity.

Lewit, however, is perhaps a case where it is less obvious that there was stigma, as it is not clear that survivors of a Nazi concentration camp suffer structural disadvantage throughout society.Footnote ⁶⁷ However, one might think that a community should be particularly keen to avoid perpetuating negative stereotypes about those who already suffered through one of the most reviled regimes in modern history. Although this cannot be clearly concluded from the reasoning in the judgment itself, perhaps there could be a concern in this context that even any beginning of stigmatisation needed to be most swiftly stamped out.

With all these considerations in mind, it does seem that a claim under Article 8 based on negative expression might best be understood as often relating to a right to live without stigma. While a group's ‘history of stigmatisation’ was mentioned as only one factor among others in Budinova and Chaprazov and Behar and Gutman,Footnote ⁶⁸ and although the Court did not say that stigmatisation is absolutely required, the identification of stigma might well be often required in order to place a limit on a right which could otherwise seem excessively broad. This approach could also better reflect the most important harm at issue. Perhaps, it is fair to say that it is not inconceivable that a case could succeed where there is no stigmatisation, if the negative expression was otherwise especially serious, and as the decision in Lewit might suggest, but the number of any such cases would seem limited.

A focus on stigma under Article 8 would also, we think, follow on from an interpretation of key wording in the article, through the expression ‘private life’, and the significance of the word ‘respect’. First, in relation to ‘private life’, it is important to note that Article 8 has been interpreted broadly. The ECtHR has explained that this article ‘covers the physical and psychological integrity of a person’ and ‘can therefore embrace multiple aspects of the person's physical and social identity’, and that it ‘protects in addition a right to personal development, and the right to establish and develop relationships with other human beings and the outside world’.Footnote ⁶⁹ In fact, the concept of ‘private life’ goes even further than this because the ECtHR has stated that Article 8 is concerned with protecting a person's right to identity.Footnote ⁷⁰ While these statements are not on stigma directly, they would be in line with the protection against stigmatisation.

Secondly, with regard to the word ‘respect’, we note that the use of this particular term has not received the attention it deserves.Footnote ⁷¹ It is important to emphasise that Article 8 is not only concerned with ‘private life’ but with respect for private life, and that we should, therefore, consider specifically the meaning of the word ‘respect’. Thomas Hill, for example, writes that ‘respect … is something to which we should presume every human being has a claim, namely full recognition as a person, with the same basic moral worth as any other’.Footnote ⁷² Robin Dillon suggests that there can be four dimensions to respect.Footnote ⁷³ First, there are cognitive dimensions: respect involves a belief or acknowledgement that an item deserves respect. Secondly, she argues that there is an affective dimension: respect involves an emotion or feeling. Thus, respect involves more than simply an intellectual acknowledgement of value, but includes a feeling or emotion towards the thing. Thirdly, there is a conative dimension: respect motivates a person so that they are disposed to act, or not to act, in a way as a result of respect. Finally, she suggests a behavioural element: appropriate behaviour includes refraining from certain treatment or acting in particular ways that may be fitting, deserved by, or owed to the other.

If we combine the broad reading that can be made of ‘private life’, with the deeper appreciation we should have for the importance of ‘respect’, we can better understand the application of Article 8 in relation to stigma. First, as we have mentioned above, Article 8 imposes positive obligations on the state, and therefore respect can call for a positive response. Indeed, the ECtHR has said that positive obligations can be ‘inherent in effective “respect” for private and family life’.Footnote ⁷⁴ A requirement to respect is different from a requirement to tolerate, which might in colloquial terms mean putting up with, or seeking to ignore something. Respect, rather, requires a positive state of valuing. To give an example from everyday life, you might tolerate your neighbour's child's violin practice, but you would only respect it if you identified it as having value. By contrast, while you might also tolerate your neighbour's decision to shout at the television, it is quite unlikely that you would respect it. Secondly, this understanding has particular significance when thinking of an individual's identity and moral integrity, because respect requires the state to value each citizen's own sense of self and dignity.Footnote ⁷⁵ Thirdly, when we are considering whether the stigma is sufficiently serious to raise Article 8 issues, it is important to appreciate that the bar is not starting at neutral. Because stigma must be socially supported, the state can also be said to bear some prior responsibility for the stigma present in society, even if this is not recognised in the form of the breach of an individual right. The state which is stigmatising, or not taking steps to prevent stigmatisation, has not only breached Article 8 by positively engaging in stigmatisation, but it might also have failed to positively act to promote a recognition of the value of the individual's identity and dignity.

In other words, a right to live without stigma would highlight the state's responsibility in a particularly powerful way, because any identified violation based on stigmatisation reveals not only one, but potentially two failures from the state. There is, more narrowly, an individual harm that results from either the state's direct perpetuation of stigma, or from a failure of the state to fulfil its positive obligations in relation to third-party stigmatisation. But there is probably also another, and prior, failure, which is that the state might have already been supporting the existence of stigmatisation. A particular instance can only perpetuate, or reinforce, existing stigma that reflects a societal wrong. There will be no violation of a right to live without stigma if there was not already stigma within society, given that stigma must by definition be socially supported. Given that the concept of stigma is focused on societal responsibility, it is a harm that is particularly appropriate to consider in the context of the state's human rights obligations, and, as mentioned above, based on a concern for human dignity.

(a) Crowter, and new directions on stigma

As mentioned above, in Crowter the appellants argued that the disability ground in the Abortion Act 1967 expresses a ‘message’ which perpetuates and reinforces negative stereotypes about them and about other disabled people. They argued that this infringes their rights under Articles 8 and 14 of the ECHR, and they relied on Aksu and Lewit. The disability ground in question, section 1(1)(d) of the Abortion Act 1967, provides that an abortion can be lawful if ‘there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped’.Footnote ⁷⁶ Section 1(1)(d) is unlike the other grounds in the Abortion Act, as it is the only ground that singles out the child's future characteristics (ie disability) as a reason for abortion, whereas all the other grounds are based on a health risk.Footnote ⁷⁷ This section also provides a ground until birth, whereas the vast majority of abortions are subject to a 24-week time limit.Footnote ⁷⁸ The appellants’ arguments in Crowter were in line with long-standing criticism in the academic literature, based on the expressivist objection, that disability-selective abortion and prenatal testing can ‘express’ the message that disabled lives have lesser value.Footnote ⁷⁹ Importantly, while rights-based arguments in the abortion context are usually about the rights or alleged rights of the pregnant woman or the foetus,Footnote ⁸⁰ these rights were not directly at issue in the appellants’ arguments, because their case was that the negative message in the law interfered with the rights of disabled people.

All three justices agreed to dismiss the appeal, with none of them finding that there was an interference. Underhill LJ, writing the lead judgment, thought that section 1(1)(d) could be seen as concerned with the foetus, and therefore does not clearly send a negative message about people with serious disabilities, viewed as a separate group. He distinguished the case from Aksu and Lewit on the basis that those cases concerned applicants who were themselves members of a stereotyped group. According to Underhill LJ, the perception that the provision concerns the appellants is not unequivocal, because other people ‘draw a clear line at the moment of birth and deny that permitting the abortion of a foetus with a serious disability implies anything about the value of the lives of the living disabled’.Footnote ⁸¹ This conclusion is very difficult to accept, as it seems quite obvious that a distinction between which foetuses can be aborted, based on a particular characteristic, would reflect a message about those people living with the same characteristic.Footnote ⁸² Indeed, Jackson LJ took a different view in this case. While he also dismissed the appeal, he said that he was ‘inclined to accept that section 1(1)(d) plays its part in contributing to discriminatory public attitudes’, and that ‘institutional stigma’, which can be found in legislation, ‘has a powerful role to play in either countering or promoting and maintaining negative stereotypes, prejudice and discrimination’.Footnote ⁸³ In his view, however, ultimately the impact of section 1(1)(d) was not sufficiently serious to reach the level of an interference with Article 8.

Although the fact that this case was on abortion need not have mattered directly to the points above, or directly to an interpretation of an allegedly negative message in the law, it is possible that, inevitably, this categorisation coloured the analysis of the case. Importantly, however, and despite the controversial nature of discussions on abortion, the issues surrounding the disability ground are neither ‘pro-choice’ nor ‘pro-life’, and it would be possible to remove this ground without restricting access to abortion for this reason.Footnote ⁸⁴ Either a law which forbade all abortion or one which permitted abortion for any reason prior to birth would avoid the expressivist objection, because in neither case would disability be singled out as a justification for abortion. If the law became more liberal, for example, and abortion was allowed for any reason at any stage of pregnancy, or for any reason until a particular time in pregnancy, this would not single out disability.Footnote ⁸⁵ Of course, abortions on the grounds of disability could continue to take place, but they would not be recognised or justified as such by the law, and thus the law would not be sending the same ‘message’. Unfortunately, the Court in Crowter did not seem to recognise that liberal options could address stigmatisation.Footnote ⁸⁶

Indeed, this approach reflects a common misunderstanding that there is necessarily a tension between arguments made to challenge a disability ground in abortion, and arguments based on women's reproductive autonomy. Given that abortion stigma is a significant harm faced by women,Footnote ⁸⁷ it might seem that a concern to combat stigma leads to a tension between addressing the stigmatisation of two different groups. This might also seem to lead to a conflict of interests, because it has already been recognised that women have certain abortion rights protected under Article 8 of the ECHR, whereas the unborn do not, although moral considerations for the unborn are nevertheless relevant.Footnote ⁸⁸ The removal of a stigmatising disability ground through a more liberal regulation of abortion could, however, combat stigmatisation against both women and disabled people. Therefore, the fact that the case was on abortion should not have been a bar, in itself, to the case succeeding, and the abortion rights of women under Article 8 need not necessarily lead to a conflict requiring a balancing of interests between these two groups. In fact, legal reform on the regulation of abortion, if seeking to address the disability ground through a liberal option, could combat stigma in more ways than one.Footnote ⁸⁹

Similarly, the second distinctive factor in Crowter, as mentioned above, should not be seen as an obstacle to a claim's potential success. The fact that the case concerned a negative message in the law, rather than the negative expression of third parties, would seem to provide an even stronger reason for an interference to be found. This view can find support in Crowter, as Underhill LJ did not seem to think that the alleged message's origin in the law was a reason, in itself, for the case not to succeed,Footnote ⁹⁰ and for Jackson LJ, the fact that the provision at issue is in a significant statute was a point in favour of the appellants.Footnote ⁹¹ If it is particularly important that high-ranking public officials avoid making certain types of negative statements as these can be perceived as representing the state's official position, as was said in Nepomnyashchiy,Footnote ⁹² surely there is reason to be concerned about a stigmatising legislative provision in an important statute. Further, if we are concerned with the law, there is no need to consider any conflicting rights to freedom of expression.

A potentially important difficulty, however, might be found in the third factor, which is that the claim in Crowter was not based on an expressly offensive statement, as was the case in ECtHR jurisprudence examined above. The provision at issue, section 1(1)(d) of the Abortion Act 1967, does not explicitly articulate a negative stereotype or a stigmatising statement. While the appellants argued that the provision is ‘sending a message’ that disabled lives have less value,Footnote ⁹³ the provision does not explicitly articulate this view, and some interpretation is required in order to understand this message. It is true that this legislative provision does contain some language that some people would now find offensive and out of date, like the word ‘handicapped’ rather than ‘disabled’, as well as ‘physical or mental abnormalities’, and the words ‘risk’ and ‘suffer’.Footnote ⁹⁴ This terminology was addressed in the case, but it does not seem that the claim itself was centred on the use of these words, as it was rather about the existence of a specific ground that singles out disability, and that allows abortion for this reason until birth. Even if the language had been different, it appears that the claim could still have been made in a similar manner.Footnote ⁹⁵

This is an especially significant point to address, as it might seem that the scope of Article 8 could be too far-reaching if it is able to cover even unarticulated ‘messages’ that certain parties detect within the law. Prima facie at least, it would seem that the law sends all sorts of negative ‘messages’. However, the comments from Underhill LJ would appear to leave the door open to the possibility that, in a different case, such a message could be found to interfere with Article 8. He said that the appellants’ argument was that the law ‘clearly, even if implicitly, disseminates a negative stereotype about the living disabled’,Footnote ⁹⁶ but he did not himself find that the alleged negative message was objectively clear, given that, as mentioned above (although unconvincingly in our view), he thought that the legal provision was not clearly concerned with disabled people. According to Underhill LJ, ‘the interference must derive from something in its terms or its effect which, applying an objective standard, unequivocally conveys that message’, and that ‘[t]he existence of a legal right cannot depend solely on the subjective perception of the putative victim’.Footnote ⁹⁷ He further said that ‘it would have very undesirable consequences if the perceived implications of a statement or measure, rather than its explicit or otherwise unequivocal meaning, could constitute an interference with Article 8 rights’.Footnote ⁹⁸ Thus, his analysis suggests that a message (including one resulting from a ‘measure’) could constitute an interference in a different case, so long as it was sufficiently negative according to an objective interpretation.

Indeed, Underhill LJ further said that ‘it is not impossible to conceive of legislation which did directly and unequivocally promulgate a negative stereotype of the kind with which Aksu was concerned’.Footnote ⁹⁹ Certainly, there is no reason to think that an implicit message would necessarily be less stigmatising than an explicitly articulated statement. At the risk of sounding offensive ourselves, but to put it rather bluntly, we could imagine what our reaction would be if the law on abortion was amended so that it permitted abortion in only two cases: if there was a health risk to the pregnant woman, or if the child will not be white.Footnote ¹⁰⁰ Clearly, we would think that the law was sending a strongly negative message in this case, and surely we would not think that it was only concerned with the unborn. Although determining whether a message is sufficiently seriously negative to rise to the level of an interference could in some instances prove difficult, we suggest, once again, that it is the concept of stigma which is likely to be the most helpful.

(b) Identifying the harm in stigma

While we have argued that the concept of stigma is particularly helpful to understand the case law in both Crowter and in ECtHR jurisprudence, we would like to address here how one particularly strong reason for referring to stigma might in fact be interpreted as a weakness. This line of interpretation comes from Crowter itself.

One difficulty in cases on stigmatic expression under Article 8, and one that did arise for the appellants in Crowter, is that there can be a difficulty in identifying the harm that comes from a particular instance of stigmatising expression. In Crowter, one of the reasons for dismissing the case was that it was not shown that negative attitudes towards disabled people were particularly as a result of this provision. The prevalence of prejudice might even have counted against the appellants, in a sense, as Underhill LJ refused to find a causal link between the disability ground in the Abortion Act and this widespread prejudice, saying instead that ‘it seems rather unreal to attribute a significant effect to a recent legislative provision which most people rarely encounter and whose full extent few will appreciate’, and that while the provision might be said to reflect long-established prejudices, this does not mean that it causes or substantially contributes to them.Footnote ¹⁰¹

In other words, given that widespread prejudice and stigma surrounding disability cannot be attributed solely to the disability ground in the law on abortion, it might seem that this ground cannot serve as a kind of peg on which to hang these wider harms. As we have said above, given that stigma is by definition socially entrenched, any incidence of stigmatisation will necessarily reflect a pre-existing state of affairs. A particular violation might only follow on from the perpetuation or reinforcement of existing stigma. In our view, however, we think that this should not in fact be a reason to dismiss a focus on stigma as the relevant harm. If, by contrast. a provision caused offence but was unrelated to widespread prejudice and stigma (such as, for example, one targeting young, white British men, to repeat the above example), it might also be unlikely to succeed. In such a case, a court might find that the threshold of seriousness is not reached. The strongest view here appears to be that there is no reason to discount the focus on stigma, and that it is possible that the reasons in Crowter in this regard are at odds with some of the case law from the ECtHR. In Budinova and Chaprazov and Behar and Gutman v Bulgaria, for example, the pre-existence of anti-Roma and anti-semitic prejudice did not seem to create a difficulty to the claims succeeding. Indeed, as we have said above, one of the advantages of focusing primarily on stigma is precisely that this can draw our attention to society's responsibility for pre-existing stigma, and not only to the individual violation, even if it is only the latter that is directly at issue in a case.

It is also not clear how we should evaluate the fact that not all people are aware of section 1(1)(d), which is a factor that seemed to count against the appellants, judging from the above-mentioned comments made by Underhill LJ. If we are concerned with the impact on identity and dignity, the number of people who are stigmatised or who know about the stigmatisation might be less significant than the power involved and the importance of this impact in a person's life. Ironically, it is perhaps due to widespread stigma surrounding disabled people that many people do not know about the legislative provision, or do not think it sends a pejorative message. If the law was amended such that it included a ground for abortion based on race, or female sex, surely we would immediately turn our minds to it.

While we do not seek to evaluate fully here the decision in Crowter, it seems that there are reasons to think that the appellants had, in fact, a strong case to say that the disability ground is stigmatising, and that the Court could have recognised the negative message expressed by the law as an especially strong, and uncommon, example of the type of ‘message’ that could fall within the reach of Article 8.Footnote ¹⁰² At the time of writing, it appears that the appellants intend to bring their case to Strasbourg, and so it might be that the matters in this case will receive further judicial consideration.