Romania’s New Hate Speech Law is Harsh — But Perfectly European
The real story isn’t Romania’s law or the president's challenge—it’s how European courts and institutions have paved the way for it.
In July 2025, the Romanian President Nicușor Dan took the extraordinary step of challenging a newly adopted hate speech law before the Constitutional Court. Amongst other issues, the law, passed by the Senate in May, amended existing legislation to enact harsher penalties for antisemitic and xenophobic speech, with even stricter sanctions when such expression is disseminated online.
Romania’s president raised concerns over the law’s vague language and its potential to infringe on freedom of expression. But what makes his challenge unique is that Romania’s law aligns seamlessly with prevailing European standards. It also contributed to the complexity of what he was attempting. A few days after his initiative, the Court struck down his case.
Both the European Court of Human Rights (ECtHR) and the European Union’s Framework Decision on Racism and Xenophobia not only permit such sweeping speech restrictions; they require them.
Legal Standards Under the European Convention
Under Article 10 of the European Convention on Human Rights (ECHR), freedom of expression may be restricted only if the limitation is prescribed by law, pursues a legitimate aim, and is necessary in a democratic society. In its landmark judgment in Handyside v The United Kingdom (1976), the Court famously stated that freedom of expression protects not only information or ideas that are “favourably received” but also those that “offend, shock or disturb.”
Yet, in practice, the ECtHR has systematically failed to uphold these standards in hate speech cases. In fact, the ECtHR has moved toward what I call a “low-threshold hatred paradigm,” allowing governments to criminalize speech that merely insults or ridicules certain protected groups. This jurisprudential shift undermines Handyside and signals a weakening of the Court's commitment to freedom of expression.
In relation to xenophobia, one of the most telling examples of the ECtHR’s restrictive approach to speech is Féret v Belgium (2009), where a Belgian politician was convicted for distributing anti-immigrant leaflets during an election campaign. The ECtHR upheld the conviction without requiring any link between the speech and a specific act of violence or discrimination. Instead, it held that:
“incitement to hatred does not necessarily require a call for acts of violence or other unlawful acts. Attacks on individuals through insults, ridicule or defamation targeting certain segments of the population may suffice for authorities to prioritise combating racist speech over the freedom of expression when exercised irresponsibly.”
The ruling, which imposed criminal penalties, set a dangerous precedent for restricting political discourse. This was followed in Le Pen v France (2010) and Zemmour v France (2022). Zemmour highlights the reality that, more than a decade after Féret and Le Pen, the Court has continued to apply the same restrictive standard for free speech regarding xenophobic speech, without further justification or assessment of the impact of this approach.
Nor does it consider that, despite restrictive approaches to even prejudicial speech, the phenomenon of hate speech in Europe has been on the rise in tandem with the growing presence of far-right groups in France, and in Europe more generally. Furthermore, the low threshold hatred paradigm persists in cases involving politicians, despite the Court's acknowledgment that political speech is fundamental to a democratic society and should only be subject to narrow restrictions under Article 10(2). As such, its professed strong protection of freedom of expression for politicians appears difficult to align with its rulings in Féret, Le Pen, and Zemmour.
When it comes to anti-Semitism, the other element of the Romanian law relevant to free speech, the situation is even more dire. The ECtHR has consistently upheld restrictions on Holocaust denial on the grounds that it is a primary driver of anti-Semitism. Relevant cases are frequently dealt with under Article 17 of the ECHR, which prohibits the abuse of Convention rights.
Applying this article means bypassing the legality, necessity, and proportionality tests under the limitation grounds of Article 10(2). For example, in Garaudy v. France (2003), Williamson v. Germany (2019), and Pastörs v. Germany (2019), the Court refused to apply the legal tests under the limitation grounds of Article 10, instead finding that Holocaust denial and revisionism could not be considered protected speech under Article 17. These rulings have rendered vast categories of expression presumptively punishable and are normatively founded on the case of Lehideux and Isorni (1998). There, the ECtHR stipulated that there exists a “category of clearly established historical facts – such as the Holocaust – whose negation or revision would be removed from the protection of Article 10 by Article 17.”
The ECtHR adopted a markedly different approach to the denial of the Armenian genocide, revealing an inconsistency in its treatment of historical events. While Holocaust denial cases are typically excluded from protection under Article 10 via Article 17 of the Convention —on the grounds that such speech promotes antisemitism and undermines democracy —the Court in Perinçek v. Switzerland (2015) found that public statements denying the Armenian genocide were protected speech. The Court argued that the Armenian genocide remains a subject of historical and legal debate and therefore falls within the scope of legitimate public discourse.
The Court justified this distinction by referencing the temporal and geographic distance of the events, the absence of a legal consensus on the Armenian genocide across Europe, and the fact that the Holocaust was judicially confirmed by the Nuremberg Tribunal. However, this reasoning has been criticised for reinforcing a hierarchy of suffering and denying equal dignity to victims of other genocides. Dissenting judges in Perinçek pointed out that:
“the suffering of an Armenian because of the genocidal policy of the Ottoman Empire are not worth less than those of a Jew under the Nazi genocidal policy. And the denial of Hayots Tseghaspanutyun...or Meds Yeghern...is not less dangerous than Holocaust denial.”
While the horrors of the Holocaust demand ongoing remembrance and moral reckoning, the approach taken by the ECtHR, and mirrored in Romania’s new law, raises serious concerns for free speech. By relying on Article 17 to exclude Holocaust denial from protection altogether, the Court bypasses the careful legal balancing normally required under Article 10(2).
This move, however understandable in emotional and historical terms, creates a precedent where entire categories of expression are removed from democratic scrutiny. The risk is not only that legitimate dissent or historical inquiry may be caught in the net, but also that states are encouraged to expand these carve-outs beyond the Holocaust, applying them to speech that is controversial but not hateful. Shielding memory through law must not come at the cost of silencing debate. In addition, the above-described differentiation in treatment of the Armenian genocide effectively creates an implicit hierarchy of historical suffering, diminishing the recognition afforded to Armenian genocide victims compared to Holocaust victims.
The European Union
The European Union’s Framework Decision on Combatting Certain Forms of Expressions of Racism and Xenophobia by Means of Criminal Law provides that Member States must criminalize certain forms of hate speech, including the denial or trivialization of genocide. While the Decision nods toward fundamental rights and includes some safety nets, such as public order as a necessity to instigate criminal action, it ultimately hands governments broad discretion to police speech with minimal checks. When examining the Framework Decision, as well as ECtHR case law, it becomes clear that there is no regional forum that provides robust protection of the freedom of expression. National laws like Romania’s are not anomalies but the natural consequence of European jurisprudence and law.
The Broader Question
The broader risk is that these speech laws, while ostensibly targeting hate, have a chilling effect on democratic discourse. When states criminalize ideas based on emotional impact or public discomfort, rather than incitement or physical harm, it is dissent that suffers. This is not merely theoretical. For example, in Hungary and Bulgaria, anti-LGBTQ+ speech laws framed as child protection measures have stifled discussion and education.
In addition, there appears to be no assessment of the harms of hate speech laws by European lawmakers or judges. While hate speech can and does result in harm (the level of harm is disputed), the response does not necessarily have to be regulation in all cases. Proponents of regulation, such as Waldron, argue that it safeguards inclusiveness and equality, while critics like Strossen and Rauch warn of overreach, potential misuse, and the stifling of dissent.
In the digital age, challenges multiply, as regulations may inadvertently push harmful speech into unregulated spaces, creating echo chambers that reinforce extremist views. As Shaw aptly observes, cyberspace and those who participate in it make perpetrators “more likely to become entrenched in their hateful beliefs when given the legitimacy of a global audience.” This insight is increasingly applicable to the digital age, where attempts to silence hate speech may inadvertently amplify its impact and further radicalize those spreading it. Thus, any response to hate speech must carefully balance its harm with the unintended consequences of regulation, particularly in the complex and evolving digital environment.
Speech should only be restricted when it has the demonstrable potential to incite real-world violence, as determined by factors such as context, timing, and typology. Regulation risks becoming overly expansive, leading to unintended consequences such as the suppression of dissent, the amplification of extremist rhetoric, and the erosion of public trust in the legitimacy of regulation. Rather than adopting a “plaster approach” that seeks to regulate speech indiscriminately, the focus should be on addressing the structural inequalities that underlie and perpetuate the marginalisation of vulnerable groups. These deeper systemic issues are the root cause of hate speech’s most damaging effects and require long-term, transformative solutions that empower marginalised voices to participate fully and equitably in public discourse. Hate speech regulations can and have often targeted the very marginalized voices they are intended to protect.
In light of the above, what is needed is a recalibration of legal standards at the European level. The stakes are not small. When vague concepts like “xenophobia” become punishable crimes, and when these crimes carry heavy prison sentences, democracies erase the line between hate and disagreement. And when both Strasbourg and Brussels affirm such laws, they become complicit in undermining the very rights they claim to protect.
In this landscape, the Romanian president’s referral of the law to Romania’s Constitutional Court is not just a domestic procedural move. It is one of the few gestures toward accountability in a continent where the legal consensus is tilting against speech. Although his steps were struck down by the domestic court, this could serve as a paradigm for others to follow. Unless the current European approach is challenged, the laws and courts of Europe will continue to exert a quiet but profound chilling effect.
Natalie Alkiviadou is a Senior Research Fellow at The Future of Free Speech. Her research interests lie in the freedom of expression, the far-right, hate speech, hate crime, and non-discrimination.