Last Updated on August 11, 2019 by LawEuro
Handbook on European non-discrimination law – Contents
Key point
- Hate speech is the advocacy of hatred based on one of the protected grounds.
Hate speech encompasses any public expressions which spread, incite, promote or justify hatred, discrimination or hostility towards a specific group. It is dangerous, as it contributes to a growing climate of intolerance against certain groups. Verbal attacks can convert into physical attacks.
According to European Commission against Racism and Intolerance,[205] hate speech is to be understood as the advocacy, promotion or incitement, in any form, of the denigration, hatred or vilification of a person or group of persons, as well as any harassment, insult, negative stereotyping, stigmatisation or threat with respect to such a person or group of persons, as well as the justification of such types of expression.
Hate speech may also take the form of public denial, trivialisation or the justification of crimes against humanity or war crimes, and the glorification of persons convicted for having committed such crimes.[206]
Hate crime and hate speech have the same aim of undermining the dignity and value of a human being belonging to a particular group. However, unlike hate crime, hate speech does not always have to a constitute criminal offence.
Under the ECHR, there is developing ECtHR case law on hate speech, including hate speech on the internet, which involves balancing different rights: the prohibition of discrimination, the right to private life and freedom of expression. In the following examples, the ECtHR confirmed that the principle of non- discrimination may limit the enjoyment of other rights.
Example: In M’Bala M’Bala v. France,[207] the applicant was a comedian, convicted for expressing negationist and antisemitic views during his live shows. He alleged that this conviction had breached his freedom of expression. The ECtHR found that the expression of hatred and antisemitism, and support for Holocaust denial could not fall within the protection of Article 10 of the ECHR. The Court also found that the applicant “had sought to deflect Article 10 from its real purpose by using his right to freedom of expression for ends which were incompatible with the letter and spirit of the Convention and which, if admitted, would contribute to the destruction of Convention rights and freedoms”. His complaint was declared inadmissible.
Example: In Vejdeland and Others v. Sweden,[208] the applicants were convicted for circulating homophobic leaflets in a school. The ECtHR held that the interference with their freedom of expression had been necessary in a democratic society because of the protection of the reputation and the rights of others, and as such there had been no violation of Article 10 of the ECHR.
Example: In Karaahmed v. Bulgaria,[209] the applicant had attended a Sofia mosque for regular Friday prayers. On the same day, around 150 supporters of a right-wing political party came to protest against the noise emanating from loudspeakers at the mosque during the call to prayer. They shouted insults at the gathered worshippers and threw eggs and stones. A scuffle ensued between several demonstrators and worshippers when the former installed their own loudspeakers on the roof of the mosque to cover the sound of the prayers, and the latter attempted to remove them. Failure by the domestic authorities to strike a proper balance in their measures to ensure the effective and peaceful exercise of the rights of the demonstrators and the rights of the applicant and the other worshippers to pray together, as well as their subsequent failure to properly respond to those events and particularly to hate speech, meant that the state had failed to comply with its positive obligations under Article 9 (freedom of religion) of the ECHR.
Where third-party user comments are in the form of hate speech and direct threats to the physical integrity of individuals, the Member States may be entitled to impose liability on internet news portals if they fail to take measures to remove clearly unlawful comments without delay, even without notice from the alleged victim or from third parties.
Example: In Delfi AS v. Estonia,[210] the applicant company owned one of the largest internet news portals in Estonia. Following the publication of an article on the portal concerning a ferry company, a number of comments by anonymous third parties, containing personal threats and offensive language directed against the ferry company owner, were posted under the article. The portal deleted the comments weeks later and only upon demand of the applicant, but refused to pay damages. Defamation proceedings were instituted against the applicant company, which was ultimately ordered to pay € 320 in damages. The ECtHR found that the obligation to prevent or remove unlawful comments and a sanction of € 320 imposed on the applicant company had not constituted a disproportionate restriction on its right to freedom of expression. As to the content of the comments, it was found that expressions of hatred and blatant threats were manifestly unlawful – amounting to hate speech – and therefore did not require any further linguistic or legal analysis. [211]
The ECtHR considered that an obligation for large news portals to take effective measures to limit the dissemination of hate speech and speech inciting violence could not be equated to ‘private censorship’. In fact, the ability of a potential victim of such speech to continuously monitor the internet was more limited than the ability of a large commercial internet news portal to prevent or remove unlawful comments.
The ECtHR is frequently called upon to balance competing rights. The following examples are cases in which expressing opinions was considered to be more important than the need to sanction hate speech.
Example: In Perinçek v. Switzerland,[212] the applicant, a Turkish academic, was convicted for publically denying that there had been any genocide of the Armenian people by the Ottoman Empire. Taking particularly into account the context in which the statements were made, the fact that they had not affected the dignity of the members of the Armenian community to the point of requesting a criminal conviction, and the fact that there had been no obligation under international law for Switzerland to criminalise such statements, the ECtHR found that the applicant’s statements had related to a matter of public interest and had not amounted to a call for hatred or intolerance. The ECtHR concluded that it had not been necessary in a democratic society to subject the applicant to a criminal punishment in order to protect the rights of the Armenian community at stake in the present case.
Example: In Sousa Goucha v. Portugal,[213] the applicant, a well-known homosexual TV host, was the subject of a joke during a live television comedy show, which referred to him as female. The ECtHR did not consider that a joke comparing gay men to women amounted to homophobic hate speech. Therefore, the authorities’ decision not to prosecute did not violate Article 14 taken in conjunction with Article 8 of the Convention.
Under international law, Article 20 of the ICCPR stipulates that any propaganda for war and any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
In this regard, the Human Rights Committee pointed out that the prohibition under Article 20, paragraph 1 extends to all forms of propaganda threatening or resulting in an act of aggression or breach of the peace contrary to the Charter of the United Nations. Paragraph 2 is directed against any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, whether such propaganda or advocacy has aims which are internal or external to the state concerned.[214]
Incitement to genocide is a crime under international law, punishable even if the act in question was at the relevant time and place, and not illegal under local law. In the famous judgment against Julius Streicher, the International Military Tribunal (IMT) in Nuremberg held that “in his speeches and articles, week after week, month after month, he infected the German mind with the virus of anti- Semitism, and incited the German people to active persecution.”[215] The IMT found him guilty of crimes against humanity.
Article III of the UN Convention on the Prevention and Punishment of the Crime of Genocide envisages that the acts of genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide shall be punishable.
In 2003, the UN International Criminal Tribunal for Rwanda (ICTR) convicted three former media executives of being key figures in the media campaign to incite ethnic Hutus to kill Tutsis in Rwanda in 1994.[216] They have been convicted of genocide, direct and public incitement to commit genocide, conspiracy to commit genocide, and extermination and persecution as crimes against humanity. The Chamber noted that “Hate speech is a discriminatory form of aggression that destroys the dignity of those in the group under attack. It creates a lesser status not only in the eyes of the group members themselves but also in the eyes of others who perceive and treat them as less than human. The denigration of a person on the basis of his or her ethnic identity or other group membership in and of itself, as well as in its other consequences, can be an irreversible harm”.[217]
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205. European Commission against Racism and Intolerance (ECRI), General Policy Recommendation No. 15 on Combating Hate Speech, 8 December 2015.
206. Ibid.
207. ECtHR, M’Bala M’Bala v. France (dec.), No. 25239/13, 20 October 2015.
208. ECtHR, Vejdeland and Others v. Sweden, No. 1813/07, 9 February 2012.
209. ECtHR, Karaahmed v. Bulgaria No. 30587/13, 24 February 2015.
210. ECtHR, Delfi AS v. Estonia [GC], No. 64569/09, 16 June 2015.
211. Compare with ECtHR, Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, No. 22947/13, 2 February 2016, where the Court observed that the use of vulgar phrases in itself was not decisive and that it was necessary to have regard to the specificities of the style of communication on certain internet portals. The expressions used in the comments, albeit
belonging to a low register of style, were common in communication on many internet portals, so the impact that could be attributed to them was thus reduced.
212. ECtHR, Perinçek v. Switzerland [GC], No. 27510/08, 15 October 2015.
213. ECtHR, Sousa Goucha v. Portugal, No. 70434/12, 22 March 2016.
214. Human Rights Committee General Comment No. 11.
215. International Military Tribunal, judgment of 1 October 1946, in: The Trial of German Major War Criminals. Proceedings of the International Military Tribunal sitting at Nuremberg, Germany, Part 22, p. 501.
216. UN, International Criminal Tribunal for Rwanda, Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza and Hassan Ngeze, Case No. ICTR-99-52-T.
217. Ibid.
2.3. Multiple and intersectional discrimination
2.4. Harassment and instruction to discriminate
2.5. Special or specific measures
2.7. Hate speech
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