| A key, if under-reported,
issue discussed at the recent World Conference Against Racism
was the question of regulating “hate speech” – an umbrella
term covering all kinds of racist and other identity-based
forms of abusive expression. The question is highly
controversial and of direct relevance to the media as well as
to government policy-makers.
Under international law,
protection is generally granted even to forms of expression
that are offensive, shocking or disturbing to either the State
or any section of society. This fundamental precept is
considered to be a sine qua non of democracy. The only
contentious question concerns the fixing of the ne plus
ultra of protected speech; the legal trammelling of the
vigorous discourse on which democracy depends.
Scepticism concerning the
effectiveness of laws aimed at restricting hate speech is
prevalent among advocates of freedom of expression. It is
often argued – cogently – that the potential for abuse of such
laws by State authorities outweighs their potential benefits.
In their recent Joint
Statement on Racism and the Media, the UN Special Rapporteur
on Freedom of Opinion and Expression, the OSCE Representative
on Freedom of the Media and the OAS Special Rapporteur on
Freedom of Expression, insisted that:
“3 Any civil, criminal or
administrative law measures that constitute an interference
with freedom of expression must be provided by law, serve a
legitimate aim as set out in international law and be
necessary to achieve that aim. This implies that any such
measures are clearly and narrowly defined, are applied by a
body which is independent of political, commercial or other
unwarranted influences and in a manner which is neither
arbitrary nor discriminatory, and are subject to adequate
standards against abuse, including the right of access to an
independent court or tribunal.”
The limited number of
permissible restrictions on freedom of expression are clearly
enumerated in the various international human rights
instruments. Of greatest relevance, perhaps, for present
purposes is the denial of protection to “any advocacy of
national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence” (Article
20 of the International Covenant on Civil and Political
Rights).
The mandatory provisions of
Article 4 of the International Convention on the Elimination
of All Forms of Racial Discrimination are also of instructive
value when examining the interaction between freedom of
expression and the elimination of racism. These provisions
enjoin States Parties to the Convention to, inter alia,
“declare an offence punishable by law all dissemination of
ideas based on racial superiority or hatred, incitement to
racial discrimination, as well as all acts of violence or
incitement to such acts against any race or group of persons
of another colour or ethnic origin….”
Despite the apparent
symbiosis between freedom of expression and anti-racism on
paper, international judicial and quasi-judicial bodies have
regularly spurned the limited opportunities that have arisen
for lengthy analysis of their compatibility with one another.
Greater elucidation of this interface – which is actually
quite problematic - can only come from the application of
existing legal norms.
The policy preoccupations so
manifest on the international scene are also replicated at the
national level. The Prohibition of Incitement to Hatred Act,
1989, is the primary statute that addresses relevant issues in
Ireland, but its shortcomings have been the subject of
sustained criticism from anti-racism groups and others. Only a
handful of prosecutions have been brought under the Act since
its introduction and none of these – ultimately – proved
successful. These statistics prompted the Minister for Justice
to announce a comprehensive review of the legislation in
September of last year, but as of yet, there has been scant
evidence (if any!) of consultation with interested parties in
this connection. The inefficacy of the Act has also led to it
being described on these pages as a “toothless bulldog”. This
description is warranted.
However, without seeking to
diminish in any way the social imperative of eliminating
racism, it must be stated that the proposed revamping of the
Act ought to be mindful of the potentially adverse effects any
new and aggressive wording could have on the right to freedom
of expression. The uninhibited exercise of the right to
freedom of expression can allow it to play a crucial role in
the furtherance of anti-racism strategies. Only when there is
a direct and incontrovertible nexus between particular forms
of expression and actual harm or distress, should there be
contemplation of curbing or, a fortiori, sanctioning,
that expression.
Although racism - in all of
its distasteful hues - is anathema to advocates of human
rights, the objective of promoting equality and
non-discrimination must not be allowed to ride roughshod over
the right to freedom of expression. Rather, a considered
balancing of these interests is what is required. Although
these rights do, on occasion, find themselves at
cross-purposes with one another, there nonetheless exists a
real potential for synergic interaction between them in the
shared struggle against racism.
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