The Legal Regulation of Hate Speech: The International and European Frameworks

Abstract

Hate speech is a threat to the proper functioning of a democratic society and a damning force to central values such as respect and solidarity. It harms us on an interpersonal, community and societal level and ‘is speech that intentionally attacks a person or a group based on race, ethnicity, gender, disability, sexual orientation, religion, or any other prohibited criterion.’ In a world of rising populism and far-right extremism, hate speech, as a by-product of such phenomena needs seriously to be addressed. On an international and European level, the tools that have been developed to this end are mechanisms, which directly prohibit certain types of speech. At the same time, international and European documents provide for the restriction of free speech if such speech, inter alia, violates the rights of others. The documents that will be discussed in this paper also include non-destruction clauses, an avenue which has been used predominantly by the European Court of Human Rights to oust negationst and revisionist speech from Convention protection. This paper will assess the relevant provisions that exist on an international (United Nations) and European (European Union and Council of Europe) level, to tackle hate speech. As a first step, the paper will elaborate on the definitional and contextual arena of hate speech and will proceed to look at the United Nations (UN). In particular, it will analyse Article 4 of the International Convention on the Elimination of All forms of Racial Discrimination (ICERD), which prohibits, amongst others, the dissemination of ideas of racial superiority. It will then assess Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR) on the prohibition of any advocacy for religious, national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. As well as the substance of the aforementioned articles and the related jurisprudence of the Committee on the Elimination of Racial Discrimination (CERD) and the Human Rights Committee (HRC), the paper will also consider other documents such as General Recommendations and Concluding Observations. Following the UN framework, the paper will look at the Framework Decision on Combating Certain Forms and Expressions of Racism and Xenophobia by means of Criminal Law, which is the only legal tool existing at a European Union (EU) level to tackle hate speech. As reflected in its title, it is limited to racist and xenophobic speech. The paper will subsequently consider the Council of Europe’s Additional Protocol to the Convention on Cybercrime, Concerning the Criminalisation of Acts of a Racist and Xenophobic Nature Committed through Computer Systems as the only tool on this level, to tackle hate speech directly, albeit only that appearing online. It will close with the key case law of the European Court of Human Rights (ECtHR) which sets out the position of the Court in interpreting the limits of Article 10 of the European Convention on Human Rights (ECHR) when such speech is deemed to be hate speech. One of the key premises, on which the analysis of the above will be effectuated, is that all the relevant hate speech legislation available on the above mentioned levels is inherently flawed due to what I refer to as the hierarchy of hate resulting from the prohibition of certain types of hate speech, for example racist speech but not others, such as homophobic speech.