“And, tired of aimless
circling in one place,
Steer straight off after something into space.”
[1]
Definitions[2]
'Hate speech' is a term which
refers to a whole spectrum of negative discourse stretching
from hate and incitement to hatred; to abuse, vilification,
insults and offensive words and epithets; and arguably also to
extreme examples of prejudice and bias.[3]
In short, virtually all racist and related declensions of
noxious, identity-assailing expression could be brought within
the wide embrace of the term. Various rationales exist for
legal prohibitions on hate speech, including: intrinsic harm;
harm to identifiable groups; harm to individuals; harm to the
market-place of ideas; harm to educational environment.[4]
This list is not exhaustive and other authors prefer to focus
on the identity-implicating nature of the offence and the
“psychic harm”[5] caused by
hate speech.
Existing and Possible
Regulatory Approaches
'Hate speech', as such, is
not defined in any international conventions,[6]
although a number of provisions do act as barometers for the
extremes of tolerable expression. These provisions include the
express checks and balances considered to be an integral part
of the right to freedom of opinion, information and expression
(eg, Article 19(3), ICCPR, and at the European level, Article
10(2), ECHR). They also include Article 20, ICCPR (which ought
to be read in conjunction with Article 19) and Article 4,
ICERD (which enjoins States Parties to the Convention, inter
alia, to “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…”, while having
“due regard” to principles such as the right to freedom of
expression). At the European level, Article 17, ECHR
(Prohibition of abuse of rights), is an in-built safety
mechanism of the Convention, which was designed in order to
prevent provisions of the Convention from being invoked in
favour of activities contrary to its text or spirit.
An examination of existing
jurisprudence will reveal that despite a traditional deference
to the principle of journalistic autonomy, international
adjudicative bodies are clearly reluctant to compromise on
their consistent refusal to grant legal protection to hate
speech. The consideration of “journalistic” licence can prove
very divisive in this connection, as evidenced by the famous
Jersild case.[7]
At the national level,
largely in reflection of the past, recent past or contemporary
experiences of States, the dissemination of hate speech
generally tends to be classed as a criminal offence. This
would, prima facie , leave little scope for co-regulatory
initiatives in the media sector (which is invariably subject
to the overarching provisions of criminal law) to influence
legal/regulatory approaches to (sanctioning) hate speech.
Offences under criminal law constitute a de minimis threshold.
As such, the putative role to be played by co-regulation as
regards hate speech could perhaps be to raise the threshold
above that of ordinary criminal law in order to insist on
higher standards in the audiovisual or journalistic sectors.
However, such a role could
prove to be controversial in the finer details of its
implementation. The first consideration here could be the
wariness in certain human rights circles about endorsing any
further restrictions on the right to freedom of expression.[8]
The obvious subtext here is that an honest adherence to
existing standards would preclude the need for the adoption of
additional regulation of any description. The creation of a
more sanitised environment for public discourse could, in
theory at least, run the risk of whittling away the rougher,
outer, most meaningful edges of the right to freedom of
expression. It could trammel the protection consistently
accorded provocative journalism by the European Court of Human
Rights, at least as regards racist speech.
Nevertheless, the above line
of argumentation overlooks the usefulness of operational
guidelines pertaining to hate speech. Codes of ethics and
conduct rarely, if ever, overlook this issue. As these codes
tend to be devised by media professionals themselves, they are
sector-specific and are coloured by practical experience of
the profession. Such considerations are rarely factored into
traditional State-dominated regulation (which by its nature is
more general in scope than codes of ethics), thus depriving it
of sensitivity to the cut and thrust of the workings of the
media industry. In consequence, it could be argued that the
gap separating both sets of standards offers an opening for
concerted, consultative policy-elaboration, leading ultimately
to some form of co-regulation of the media addressing hate
speech. Therefore such co-regulation should not necessarily be
ruled out. Potential does exist for synergies, but it must be
carefully worked out.
International Provisions
on Hate Speech
United Nations
The Universal Declaration of
Human Rights, 1948, contains a specific Article devoted to the
right to freedom of expression, Article 19: “Everyone has the
right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference and to
seek, receive and impart information and ideas through any
media and regardless of frontiers.” This right is also
enshrined – and indeed fleshed out – in Article 19 of the
International Covenant on Civil and Political Rights (ICCPR).
It reads:
1. Everyone shall have the
right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression;
this right shall include freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art,
or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of
this article carries with it special duties and
responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided
by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public
order (ordre public), or of public health or morals.
It is plain to see that the
only restrictions on the right countenanced by this article
are those which are “provided by law and are necessary: (a)
For respect of the rights or reputations of others; (b) For
the protection of national security or of public order (ordre
public), or of public health or morals.” Nevertheless, Article
19 must be read in conjunction with Article 20, which further
trammels the scope of the right. It provides for the
prohibition by law of “any propaganda for war,” and - of
crucial importance for present purposes - “any advocacy of
national, racial or religious hatred that constitutes
incitement to discrimination, hostility or violence.”
The mandatory provisions[9]
of Article 4 of the International Convention on the
Elimination of All Forms of Racial Discrimination (ICERD) 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,
inter alia , to “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…”[10]
Nevertheless, the fulfilment of this obligation by States
Parties must be achieved while having “due regard” to the
principles embodied in the Universal Declaration of Human
Rights and the rights explicitly set out in Article 5, ICERD.[11]
“The right to freedom of opinion and expression” is among
those rights specifically enumerated at Article 5[12]
In their recent Joint
Statement on Racism and the Media,[13]
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:
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.
Council of Europe
Article 10 of the (European)
Convention on the Protection of Human Rights and Fudamental
Freedoms (ECHR) reads as follows:
1. Everyone has the right
to freedom of expression. This right shall include freedom
to hold opinions and to receive and impart information and
ideas without interference by public authority and
regardless of frontiers. This article shall not prevent
States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it
duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society,
in the interests of national security, territorial integrity
or public safety, for the prevention of disorder or crime,
for the protection of health or morals, for the protection
of the reputation or rights of others, for preventing the
disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary.
In its seminal ruling in
Handyside v. United Kingdom, the European Court of Human
Rights affirmed that freedom of expression “is applicable not
only to 'information' or 'ideas' that are favourably received
or regarded as inoffensive or as a matter of indifference, but
also to those that offend, shock or disturb the State or any
sector of the population. Such are the demands of that
pluralism, tolerance and broadmindedness without which there
would be no democratic society.”[14]
Nevertheless, tolerance is
not without its limits: it is limited, for instance, by a
provision of the Convention that serves as an in-built safety
mechanism. Designed in order to prevent provisions of the
Convention from being invoked in favour of activities contrary
to its text or spirit, the operative provision is Article 17
(Prohibition of abuse of rights). It reads:
Nothing in this Convention
may be interpreted as implying for any State, group or
person any right to engage in any activity or perform any
act aimed at the destruction of any of the rights and
freedoms set forth herein or at their limitation to a
greater extent than is provided for in the Convention.
This is the rock on which
most cases involving racist speech or hate speech have tended
to founder: they are consistently adjudged by the European
Court of Human Rights (and in the past, the now-defunct
European Commission for Human Rights) to be manifestly
unfounded in accordance with Article 17. These cases include:
Glimmerveen & Hagenbeek v. The Netherlands (racist leaflets);[15]
T. v. Belgium (publication of Holocaust denial material in
conjunction with a banned author);[16]
H., W., P. and K. v. Austria[17]
and Kühnen v. FRG[18]
(both Holocaust denial).[19] |
[1] R. Frost, 'On a Tree
Fallen Across the Road' in S. Heaney & T. Hughes, Eds., The
Rattle Bag (London, Faber & Faber, 1982), at p. 323.
[2] See further, T.
McGonagle, “Wresting (Racial) Equality from Tolerance of Hate
Speech”, (2001) 23 Dublin University Law Journal (ns)
21, pp. 21-54.
[3] J. Jacobs & K. Potter,
Hate Crimes: Criminal Law and Identity Politics (New York,
Oxford University Press, 1998), p. 11.
[4] See R. C. Post,
Constitutional Domains: Democracy, Community, Management
(Massachusetts, Harvard University Press, 1995), p. 293.
[5] W. Sadurski, “Racial
Vilification, Psychic Harm, and Affirmative Action”, in T.
Campbell & W. Sadurski (Eds.), Freedom of Communication
(England, Dartmouth Publishing Company, 1994), pp. 77-94, at
77.
[6] See, however, the
explanation of 'Hate Speech' contained in the Appendix to
Council of Europe Recommendation No. R (97) 20 of the
Committee of Ministers to Member States on “Hate Speech”,
adopted on 30 October 1997, available at:
http://cm.coe.int/ta/rec/1997/97r20.html. According to
this Recommendation, the term covers “all forms of expression
which spread, incite, promote or justify racial hatred,
xenophobia, antisemitism or other forms of hatred based on
intolerance, including: intolerance expressed by aggressive
nationalism and ethnocentrism, discrimination and hostility
against minorities, migrants and people of immigrant origin.”
[7] Jersild v. Denmark,
Judgment of the European Court of Human Rights of 23 September
1994, Series A, No. 298.
[8] This reluctance is
captured in the recent Joint Statement on Racism and the Media
by 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, 27
February 2001, available at:
http://www.article19.org/docimages/950.htm.
[9] See, for example,
General Recommendations VII (para. 1) and XV (para. 2) of the
Committee on the Elimination of Racial Discrimination.
[10] Article 4(a), ICERD.
[11] Article 4, ibid.
[12] Article 5(d)(viii),
ibid.
[13] Op. cit.
[14] Handyside v. United
Kingdom, Judgment of the European Court of Human Rights of 7
December 1976, Series A, No. 24, para. 49.
[15] Appn. Nos. 8348/78 &
8406/78, 18 DR 187.
[16] DR 34 (1983), p.158.
[17] Appn. No. 12774/87,
62 DR (1989) 216.
[18] Appn. No. 12194/86,
56 DR 205 (1988).
[19] See further, T.
McGonagle, op. cit. |
