In January 2026, president Karol Nawrocki vetoed the draft law set to adapt Polish law to the Digital Services Act (DSA), further prolonging the country’s delay in DSA’s implementation. The censorship concerns he invoked are unconvincing and reveal a limited understanding of the realities of today’s online environment. Nearly a year after J.D. Vance’s infamous Munich Security Conference address, in which he accused EU Commissioners of suppressing free speech, the narrative still has an impact on Poland. The Polish President has embraced a free speech paradigm prevalent in the American political discourse – one that is ill-suited to the European legal and institutional framework. The consequences are substantial, as platform users are deprived of important safeguards, making it essential that some version of legislation aligning the Polish legal framework with the DSA be adopted as a matter of urgency.

Veto this, veto that

This veto was somewhat anticipated. In the first six months of his presidency, Nawrocki has already vetoed 23 laws – more than his predecessor, Andrzej Duda, did in his ten years in office. In the final days before his decision, over 100 experts appealed to the First Lady to urge the President to sign the bill, with children’s online safety being the dominant argument in the public debate – yet even that appeal had no effect. The reasons the President gave for the veto feel more declaratory than explanatory: he said that he believes that the notice and action mechanism for the removal of illegal content established in the draft law (Article 1(5), intended to ensure compliance with Article 16 of the DSA) interfered excessively with the freedom of expression, stating that “the state should guarantee freedom, not regulate it.”

This argument is unpersuasive. The category of content covered by this provision is defined very narrowly and explicitly refers to provisions of other statutes, in particular the Criminal Code, intellectual property law, and industrial property law. As a result, such content is already prohibited under Polish law, and a person publishing it would in any event be committing an offence.

What the DSA does, however, is to make platforms react quicker to notices about illegal content by establishing a structured notice-and-action mechanism under Article 16 of the DSA. Such a notice can be submitted, by the police or by users themselves. So, imagine that someone – whether a law enforcement authority or an ordinary user – wants to have content amounting to child sexual abuse, content inciting racial hatred, or content promoting suicide, taken down; this would be the procedure to use. Additionally, it would arguably be much faster than going through a standard criminal process. One might say these are extreme examples – but this is exactly the type of situation the law is meant to address. While this procedure could, of course, be abused, given the narrow scope of the law, such abuse appears rather unlikely. At the same time the draft law provides for an appeal mechanism that would constitute an effective remedy against the removal of content falling outside the scope of the Act. The bottom line is that the notice-and-action mechanism is a core element of the DSA. One may therefore wonder how the President expects Polish law to be aligned with the requirements of the DSA while excluding that mechanism.

On a related note, when it comes to the abusive removal of online content, the greatest threat does not stem from individual users or even public authorities, but from the platforms themselves. According to a report by the Appeals Centre Europe – a dispute settlement body established under the DSA – more than 75% of content moderation decisions reviewed on appeal were overturned. These wrongful removals also affect important voices in public debate, including journalistic content. The seriousness of the problem is further reflected in the Commission’s recent adoption of guidelines to protect media content on online platforms. These safeguards require Very Large Platforms to notify media providers in advance of any intended removal of journalistic content and to clearly state the reasons for that decision. Responding to accusations that the DSA constitutes a tool of censorship, a Commission spokesperson, Thomas Regnier, went so far as to argue that its purpose is, in fact, to curb unjustified platform censorship, precisely by enabling users, including journalists, to appeal content removal decisions.

Returning to the Polish context, Poland remains one of the last Member States yet to align its legal framework with the standards stemming from the DSA, and the Commission has already initiated infringement proceedings in 2025. In this context, the President’s veto suggests that meaningful regulation of the digital environment – and broader reforms concerning freedom of expression – are unlikely to materialise anytime soon.

Uncle Sam

The President’s veto does not occur in isolation. It takes place against the backdrop of a growing transatlantic rift over the regulation of online content. The United States – particularly under renewed political pressure from both Congress and the President – has begun framing the EU’s digital regulation as a threat to American free speech.

Among Trump’s first executive orders was one titled “Restoring Freedom of Speech and Ending Federal Censorship”, signalling alignment with the broader Republican position on content moderation. The administration has also issued a memorandum on “defending U.S. companies from foreign extortion, unfair fines and penalties”, which takes direct aim at the DSA. The memorandum envisages retaliatory measures against countries that impose additional charges, including regulatory penalties, on American companies. A report published in February 2026 by the US House Judiciary Committee accused the European Commission of using the DSA and the DSA related Strengthened Code of Practice on Disinformation to coerce American technology companies into restricting lawful political expression. While the report’s conclusions are far-reaching – and its characterisation of EU regulation as censorship is very much disputed – the political signal is clear: American policymakers increasingly view European content moderation rules as an assertion of extraterritorial regulatory power that clashes with First Amendment values.

This framing has real consequences for the Polish debate. The rhetoric of the veto – the invocation of freedom of expression as a shield against any form of state-mandated content regulation – echoes the arguments now being made in the US. Yet the analogy is misleading. The DSA does not define what constitutes illegal content; it defers to national law on that question. Its primary function is to impose procedural obligations on platforms: to act on notifications of illegal content, to provide transparent moderation decisions, and to allow users to challenge those decisions. In other words, it is as much a tool for protecting speech – by giving users recourse against arbitrary platform decisions – as it is for limiting it.

It’s an AI’s world

This dimension is all the more pressing in light of the growing role of artificial intelligence in generating and amplifying disinformation as well as illegal content. AI-generated content – from deepfakes to synthetic text – is increasingly difficult to distinguish from authentic material and is being deployed at scale by state and non-state actors alike. In late December 2025, xAI’s chatbot Grok – integrated directly into Elon Musk’s X platform – has generated sexualised images of minors after users exploited its image-editing feature, prompting investigations by the European Commission, the UK’s Ofcom, and regulators in Australia and Brazil. This illustrates not only how quickly AI tools can be weaponised to produce illegal content, but also the inadequacy of relying on platforms’ self-regulation to prevent it, especially since platforms themselves rely on algorithmic systems that tend to amplify emotionally charged and sensational content, often at the expense of accuracy. In such an environment, the absence of a functioning regulatory framework that is the national implementation of the DSA leaves users, and children in particular, exposed.

Thus, the practical implications for Polish internet users are significant. Without the implementing legislation, Poland lacks a fully empowered Digital Services Coordinator capable of accepting complaints, certifying out-of-court dispute resolution bodies, or designating trusted flaggers. Polish users who are wrongly blocked by platforms have no rapid, accessible mechanism for independent review – a situation starkly illustrated by the long-running SIN v. Facebook litigation, in which a harm reduction organisation had to resort to civil proceedings lasting years in order to challenge the arbitrary removal of its educational content. The DSA’s out-of-court dispute resolution bodies were designed precisely to avoid this kind of procedural burden, yet without transposition they remain unavailable in Poland.

The veto also deprives Polish users of a number of other protections that the implementing law would have introduced: the possibility to complain to a national authority about platforms admitting children under the age of 13, the ability to block content depicting child sexual abuse through an expedited administrative procedure with full judicial review, and the creation of a mechanism for the rapid restoration of content that has been unjustly removed by platforms.

President’s decision leaves disappointment but little surprise. Given his track record in exercising his veto power, as well as his clearly expressed alignment with U.S. free speech narratives, the veto was easily foreseeable. Moreover, the President’s reasoning appears to draw on a vision of the internet from the early 2000s – a free and open agora of unrestricted speech – that bears little resemblance to the commercially driven, algorithmically curated digital environment of today. To quote Brave New World, “ending is better than mending.” Still, one may hope that the veto will not mark the end of efforts to align Polish law with the DSA, and that the legislation, once amended, will ultimately be adopted.

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To make sense of the migration-related jurisprudence of the European Court of Human Rights (ECtHR), scholars tend to identify a certain logic, story or direction in which the case law develops. My point here is not that a certain narrative is correct or another is wrong. Instead, I want to draw attention to the fact that, as Janna Wessels and Jürgen Bast have recently shown, there are three competing narratives, and that it is important to be aware of these – not only, but especially for actors engaged in strategic litigation.

The story that is mostly told goes as follows: For asylum seekers and refugees, Strasbourg is no longer the safe haven it long appeared to be. As the very basic rights of persons on the move – including their right to life – are increasingly threatened by European states, it is no longer a matter of course to turn towards the ECtHR for relief. The ECtHR’s latest decisions, most recently SS et al v Italy, have disappointed those who had placed all their bets on Strasbourg. Based on this narrative, human rights lawyers, NGOs and scholars supporting strategic litigation might no longer regard Strasbourg as the first, obvious and most promising option. UN Treaty Bodies and other ‘soft courts’ are increasingly seen as valid alternatives.

Yet, it is essential to not give in to resignation, and especially, to not give up on the ECtHR. As Europe’s legislation becomes more and more restrictive, it is more important than ever to remind legislators, administrative authorities and courts of the limits set by human rights. And, potentials of UN Treaty Bodies notwithstanding, the ECtHR remains one central place for doing so. Considering that those fighting for an increased closure of Europe rely on very powerful narratives, have strong unification mechanisms and increasingly engage in strategic litigation, too, those fighting for a European migration policy that respects human rights have, in fact, no real alternative to keeping up the work. But continuing to rely on litigation before the ECtHR as one important tool in the struggle for a more humane European migration policy requires the belief that this strategy is not in vain. Keeping up the work requires hope.

The Importance of Narratives for Human Rights Litigation

Placing hope in the ECtHR, in turn, requires hopeful narratives. The stories we tell frame our ideas and influence the decisions we make. For instance, if one believes that the ECtHR is a forum in decline where migrants’ rights are no longer effectively protected, or even that the court has never truly advanced migrants’ rights, one will most likely make different decisions than if one believes that the court remains a central place, maybe even the central place, for promoting migrants’ rights and that it should be strengthened in this role. The connection between narratives on the one hand and law and policy on the other hand is vivid and complex. Obviously, law and policy frame narratives. But it is also the other way round: narratives frame law and policy. It matters which narratives we internalise because this will make a difference for our decisions.

While this holds true for decision-making in very different contexts and for persons in very different capacities, including scholars, judges, policy makers and participants in the public discussion, I focus here on strategic litigators. Two reasons justify this choice. First, strategic litigation plays a central role in the context of migration and asylum law. Nearly all landmark judgements of the past decades were supported by strategic litigators. Given the precarious situation of people on the move, especially when their human rights are violated at borders, given the lack of funding and the difficulties of proof in this context, bringing a case to the ECtHR de facto requires professional support from NGOs and legal scholars. Second, I observe increasing frustration among strategic litigators. While this frustration is understandable, it seems critical to prevent resignation or hard internal fractions which could eventually weaken the camp of those defending the rights of people on the move. Criticising the ECtHR is certainly important – but it is not sufficient. Hopeful perspective, and narratives that unify different fractions of strategic litigators, are essential.

Thinking about narratives, the notion as such requires brief clarification. Two notions deserve mention here. The first is borrowed from literary studies and is accordingly rather narrow. A narrative in this sense is defined as the act of telling a story in court, e.g. witness testimony or judicial fact-finding. The second and broader notion was developed by scholarship on transitional justice. A narrative in this sense is defined as a story which a society tells itself and other societies. For the purpose of the present contribution, I work with this broader notion of narrative and apply it to the context of the professional community following the ECtHR’s migration-related case law. Accordingly, I understand here as a narrative those stories that the professional community constructs to make sense of the ECtHR’s case law; these stories are told to other members of the professional community, to non-professionals and the media, thus informing public opinion.

Narrative 1: A Communitarian Turn

The currently prevalent narrative on the ECtHR’s migration-related case law in the context of migration was mentioned already. I call it here the ‘narrative of a communitarian turn’ (Janna Wessels and Jürgen Bast, in their recent paper cited above, call it the ‘endpoint narrative’). According to this view, the past decades were characterised by a gradual expansion of migrants’ rights (for a sensible critique of this narrative see the contribution by Dana Schmalz in this symposium). A line is drawn from the case of Soering decided in 1989 where the Court for the first time established that Art. 3 of the Convention entails a prohibition of refoulement, to the case of M.S.S. in 2011 where the Court expanded this prohibition to intra-EU constellations, and further to the case of Hirsi of 2012 where the Court held that jurisdiction can also be established on the high seas.

The case of N.D. and N.T., decided in 2020, where the Court removed certain constellations at land borders from the prohibition of collective expulsion, is usually identified as a turning point. Since then, proponents of this narrative argue, the case law has developed in a different direction, giving governments more leeway and increasingly restricting the rights of migrants. This decline in the case law is seen as confirmed by the decision in M.N. and others v Belgium, decided in 2020, where the court held that the refusal of visa at embassies does not violate the Convention; and most recently by the decision in S.S. and others v Italy, decided in May this year, where the court found a lack of jurisdiction and dismissed the case as inadmissible.

It seems that most legal scholars currently work with this narrative of a communitarian turn. Opinions on this decline in the case law, however, vary.  Some focus on a critique of the ‘backsliding’ on the protection of migrants’ rights as such. Others focus on a critique of the so-called overreach hypothesis i.e. the idea that the earlier expansive interpretation of migrants’ rights has contributed to the following backlash. Yet others understand the provisional endpoint of dynamic human rights jurisprudence as the politically inevitable consequence of the past decades, and explicitly call for more ‘flexibility’ on the part of governments (as Daniel Thym in his contribution to this symposium).

The narrative of a communitarian turn is prevalent not only in scholarship, but in practice, and especially in human rights litigation, too. Many actors engaging in human rights litigation are frustrated, perceive their work as increasingly pointless or even regard litigation before the ECtHR as a test of their hypothesis that it upholds ‘legal black holes’. This puts strategic litigators in an extremely difficult position. They work with a narrative that takes their hopes away. No wonder that this often feels like tilting at windmills.

While this frustration is not new, and perhaps not avoidable, it is crucial to not lose sight of all the cases in which human rights are upheld before the ECtHR. The narrative of a communitarian turn is built around landmark cases and, as such, comes with the risk of overlooking the everyday victories. In fact, a large number of cases, including interim measures, are successful. Very often, it is the ECtHR which reminds and obliges European states, especially EU member states, to respect the human rights of people on the move.

Narrative 2: A Still Colonial Court

The second narrative is that of a ‘still colonial court’. In a nutshell, proponents of this narrative argue that there has never been true progress (accordingly, Janna Wessels and Jürgen Bast call it the ‘no-progress narrative’). One straight line is drawn from Soering of 1989 to S.S. and others of 2025. Unlike in the first narrative, N.D. and N.T. is not seen as a turning point, but only as the point where the formerly hidden lack of progress became more visible. Remarkably, a very early version of this narrative is based on a comparison of the jurisprudence of the ECtHR to that of the Inter-American Court, finding that the European court has always shown comparatively much deference to governments. More recently, this narrative is, on the one hand, supported by the observation of so-called ‘maritime legal blackholes’, i.e. spaces of not only de facto but de jure rightlessness, where migrants are deprived of their right to have rights. On the other hand, decolonial and anti-racist theories – even more fundamental decolonial critiques of the foundations of international migration law notwithstanding – argue that the ECtHR’s judgments remain marked by Europe’s colonial past and that the court has failed to truly recognise humans from other regions as equals.

While the ‘narrative of a still colonial court’ is adopted by a much smaller community than the first one, it is increasingly present, especially among legal scholars, practitioners and NGOs who identify as critical. As NGOs increasingly acknowledge the importance of representing within their staff the persons they work for – and, I am convinced, rightly so – anti-racist and decolonial perspectives are increasingly present among human rights litigators, too.

As a consequence, human rights litigators are faced with a difficult struggle: they work with laws and courts, especially the ECHR and the ECtHR, the structure of which they sharply criticise. This struggle is difficult, of course, but it is not new. Decolonial human rights scholars have thought this through. It is possible to find hope and to continue the struggle for rights of ‘the oppressed’ by relying on the language of ‘the oppressors’. A critique of the conceptual basis of human rights, including their history, their doctrinal and institutional structures, is compatible with the acknowledgement that, in practice, human rights remain one of the most important strategies for emancipation from colonial structures.

Narrative 3: Humanrightization  

The third narrative is that of ‘humanrightization’ as established by the MeDiMi research group. This narrative is the most recent and has, until now, not received as much attention as the former two. Yet, it is particularly appealing because it acknowledges the ups and downs in the case law but at the same time sees the ECtHR as a central forum for advancing migrants’ rights. In short, proponents of this narrative argue that the earlier jurisprudence since Soering must be seen as nothing less than a revolution, as Janna Wessels and Jürgen Bast have put it, because it, for the first time, allowed migrants to formulate their claims in the language of human rights. Seen from this perspective, the decline since N.D. and N.T. is not fundamental – the revolutionary achievement is not unsettled. The key point is that the claims of migrants can be articulated in the language of human rights. For this narrative, the outcome of individual cases is not the most important. Instead, the most important is that ‘migration control is no longer purely within the discretion of states’, i.e. the humanrightization of migration matters as such – which so far remains. Not even the worst losses before the ECtHR question the historical achievement that people on the move can rely on human rights.

Humanrightization is a narrative that has the potential to fuel hope, despite and because of all the darkness in current European migration policies. It supports an attitude of ‘keep calm and carry on’, even when a landmark case is lost. The narrative of humanrightization advances the view that a certain back and forth is probably unavoidable. This does not mean to not criticise the ECtHR when it betrays its own doctrinal principles: criticism, and when needed in fundamental terms, must remain essential. But for strategic litigators to keep up their work, zooming out and adopting the perspective of humanrightization might be a useful additional tool: it could help dealing with backward steps in the case law without losing hope for a step forward in the next case.

Giving Up on the ECtHR is No Option

If the professional community tells the story that Strasbourg, the place that has long been seen as the beacon of human rights, is backing down, there is a true risk that this might become a self-fulfilling prophecy. Actors engaged in strategic litigation and like-minded scholars should be careful which stories they spread. Otherwise, they risk losing hope themselves, lowering their efforts before the ECtHR – and thus, in the mid-term, involuntarily reinforcing a tendency they oppose. While the impression that the ECtHR has given in to the political interest of European states is certainly very justifiable, we should be careful to not fall into the trap of telling a story which we then make true.

Despite all deficiencies in the migration-related jurisprudence of the ECtHR, despite the court’s doctrinal acrobatics to come to results that can be accepted by politically strong European states, despite its colonial history, despite its structural insufficiencies, and despite all stories of backlash – the ECtHR remains one of the most meaningful institutional achievements of post-World-War II Europe, and it is a fairly resilient one. When recent case law from Strasbourg does not meet justified expectations, when it is doctrinally weak and lacks political courage or perpetuates coloniality, we must name this – of course. At the same time, human rights defenders must not lose faith in their work. Giving up on Strasbourg would only play into the hands of those who want to weaken the rights of people on the move, and ultimately weaken the European human rights system altogether. In the current political context, looking for sparks of hope has become utterly necessary.

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On 13 February, the High Court of England and Wales ruled that the UK government’s decision to proscribe Palestine Action did not follow the government’s own policy and was contrary to the rights to freedom of expression and assembly (Articles 10 and 11 of the ECHR). The decision is not cast in sweeping terms and does not challenge the legal regime that empowers the Home Secretary to proscribe an organisation. Instead, the ruling is focused on the specific decision to proscribe Palestine Action in light of the circumstances of the case and the available evidence. The ruling is nonetheless significant and provides a warning against the expansive use of proscription powers.

Alan Greene’s post in this blog explains the role of soft law in the court’s decision. The focus here is on the complex free speech issues that arise when an organisation pursues a direct action campaign involving criminal damage, but only a small part of that activity falls within the broad legal definition of terrorism (according to the court). The case highlights how proscription, a sweeping power “designed to ensure that an organisation ceases to exist”, significantly affects the rights of people outside the organisation. Given the breadth of the restriction, the court came to the right conclusion and provided an important safeguard for free speech and protest rights.

Background

To provide some background, the Terrorism Act 2000 grants a power to the Home Secretary to proscribe organisations that are “concerned with terrorism” (which extends to those that promote or encourage terrorism). Terrorism is defined as an action or the threat of action which is “designed to influence the government” or an international governmental organisation, or “to intimidate the public or a section of the public”. To fall within the definition, the action or threat must be “made for the purpose of advancing a political, religious, racial or ideological cause”. The action also has to fall within a list provided in the legislation, which includes “serious violence against a person” and “serious damage to property”.

Given the broad definition under the Terrorism Act, the government cannot proscribe every organisation that it deems to be concerned with terrorism. As the court made clear, once the “concerned with terrorism” threshold is passed, the government has a discretion to proscribe. The discretion is to be used proportionately and should normally be reserved for the most grave risks.

The threshold of violence

Where an organisation does engage in activities that fall within the legal definition of terrorism, a challenge to a proscription decision based on the ECHR raises some complex questions. As is well established, the ECHR protects the right to peaceful protest. While that covers some forms of disruptive activity and direct action, the Strasbourg Court has ruled that violent actions and activities with the purpose of destroying the Convention rights of others fall outside of the scope of protection. For this reason, if an organisation is primarily “concerned with terrorism”, then it seems that much of its activity will normally fall outside the scope of the rights to freedom of expression (Articles 10 ECHR) and freedom of assembly (Article 11 ECHR).

In its judgment on Palestine Action, the court found it untenable to describe the organisation as non-violent. The court also rejected the argument that Palestine Action was engaged in a campaign of civil disobedience, and stated that it was “not engaged in any exercise of persuasion, or at least not the type of persuasion that is consistent with democratic values and the rule of law” (para 23). In coming to these conclusions, the court noted that it had limited information about the structure and organisation of Palestine Action. However, the court looked at the organisation’s publications, including the “Underground Manual” that had been published on its website, which (the court found) “encourages its members and others who align with it to plan and cause damage to property” (para 25). At the same time, the court also noted that a “very small number of its actions have amounted to terrorist action within the definition at section 1(1) of the 2000 Act” (para 138).

The breadth of proscription

A decision to proscribe does not narrowly target those activities that involve or encourage serious criminal damage (or any other terrorist action). Once an order is made, the Terrorism Act 2000 provides that it is a criminal offence not just to belong to a proscribed organisation, but also to express an opinion or belief that is supportive of a proscribed organisation. Under s 13 of the Act, a person also commits an offence if they wear, carry or display an article “in such a way or in such circumstances as to arouse reasonable suspicion that he is a member or supporter of a proscribed organisation”. The court found the order engaged the right to peaceful protest of those who wanted to peacefully express support for the aims of Palestine Action, such as those wanting “to stop genocide and other atrocity crimes by causing disruption to corporate actors who aid, abet, facilitate and profit from those crimes” (para 115). Those making such statements of support did not incite violence or encourage terrorism, and were not excluded from ECHR protection.

When assessing the impact on expression rights, the court placed weight on the potential chilling effect, noting that the heavy penalties meant that “it is reasonable to expect people to be risk averse, to adjust their behaviour and to avoid doing things that run any significant risk that they might commit any of those criminal offences” (para 121). The court therefore had to consider not just the speech which the letter of the law criminalises, but the extent to which reasonable people self-censor. The extent of any self-censorship is difficult to know, but the risk is greater where the law is cast in broad terms and the sanctions are severe. In such circumstances, the desire to avoid the risk of sanction results in the voluntary suppression of speech that would not violate the law if tested in court. Along such lines, the court noted the evidence from organisations that felt inhibited from campaigning against the proscription order, for fear that they would be understood to express support for Palestine Action (para 123).

A vehicle for expression

The court expressed scepticism towards some of the free speech arguments advanced by the claimants. For example, the court explained that proscription does not stop people from expressing support for Palestine, from criticising the government of Israel, or from engaging in protests targeted at companies supplying military equipment (para 117). That is surely correct and the order does not directly restrict support for the underlying cause. The court was nonetheless right to find a significant interference with the Convention rights. While that may seem self-evident, the proscription of an organisation restricts various ways a person can express their views. In particular, it stops the organisation from providing a vehicle for expression, including for those outside of its membership.

Expressing support for an organisation is both a shorthand way to communicate a set of views and to align oneself with a particular outlook or orientation without having detailed knowledge of the issues. Both points are relevant in the case Palestine Action, which claims that it aims “to take direct action against Israel’s arms trade in Britain and to stop the complicity of corporate actors in atrocity crimes” (para 16). By displaying a sign with a slogan expressing support for the organisation, the speaker uses a shorthand way to publicly endorse those aims. The value to the speaker is not just that the slogan is concise, but that it allows them to take a position even if they do not know the specifics about companies supplying equipment to the Israel Defence Force. Such a person may choose to express support for an organisation that does know about such issues and tries to do something about them.

The loss of the shorthand form of expression will be a factor in any case where an organisation is proscribed. If a person expresses support for a neo-Nazi organisation, they align themselves with a particular outlook. In such a case, the loss of the shorthand is less problematic, as the expression of neo-Nazi ideology is likely to fall outside the protection of the ECHR. Similarly, where terrorist activities are a defining feature of an organisation, then support for the organisation may be taken to be a shorthand way of advocating terrorism. The position is different where a small part of the organisation’s activities falls within the legal definition of terrorism. In such circumstances, the expression of support is more plausibly an endorsement of the organisation’s ideological position (which is protected under the ECHR) than of any terrorist methods. The point is not decisive against proscription, but shows that proscription entails a loss of speech rights even if people are still free to speak in favour of a particular cause or viewpoint.

Error and proportionality

The court seemed unpersuaded by the risk of the law being applied in error (such as to those expressing support for Palestine, as opposed to the proscribed organisation). The court referred to the police guidance which aimed to avoid such errors (cited at para 119). The court also thought the risk of error should reduce over time as the terms of the order become better understood. In my view, such a conclusion may be optimistic. The law itself is couched in broad terms, which criminalise the expression of “an opinion or belief that is supportive of a proscribed organisation” (subject to a mens rea of recklessness). The way an opinion can be supportive may be subtle and open to interpretation. The broad terms of the law do not provide a bright line and pose a risk of overbroad application.

While the court did not accept all the arguments advanced by the claimants, it did accept that proscription was a very significant restriction of Article 10 and 11 rights. The court set that against the fact that only a “very small number” of the organisation’s actions amounted to terrorist action. The court therefore concluded the “nature and scale” of the group’s activities, in so far as they were terrorist activities, had not yet reached a “level, scale and persistence” that would justify proscription and its far-reaching consequences.

The wider effects

The decision raises the usual questions about the role of the court in overseeing sensitive questions relating to security. On this point, it is important to remember the limited political checks. The proscription order was considered by Parliament alongside the proscription of two other organisations in a very short space of time. While the decision had its political supporters, critics saw it as a political majority restricting speech and protest on a matter of public importance. By reviewing the decision without being subject to the intense political pressures or tight time constraints, the courts provided an important safeguard for political rights.

The ruling will also generate further debate about whether the government should have an additional intermediate power to proscribe without criminalising expressions of support for the organisation. While such a power would appear to be more proportionate, the risk is that a government may be more willing to exercise an intermediate power in relation to a wider range of organisations that do not meet the threshold for full proscription. More generally, if the purpose of proscription is to ensure an organisation ceases to exist (a type of death penalty for organisations), then it is hard to see how intermediate measures would be effective. The point here is not that less restrictive measures always fail, but that proscription is a drastic measure of last resort and should be used in exceptional cases.

The government has been granted permission to appeal the ruling, and the proscription order remains in place – so the episode is not over. So far, it appears that the decision to proscribe has backfired. Palestine Action has become better known and has been a focal point in the debates about Israel, Gaza and the British government’s response. The perception that the law is being used in an oppressive way may have generated sympathy from people who do not endorse Palestine Action’s activities.

These practical effects, along with the court’s ruling, should also put a brake on any momentum towards the more extensive use of proscription powers. The proscription of Palestine Action was seen to be a first step in using the power in relation to direct action groups, which would set a precedent for proscription to be applied to a wider range of organisations. The experience with Palestine Action provides an important warning that such steps carry legal and political risks.

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