1
The Council of Europe against online hate speech:
Conundrums and challenges
EXPERT PAPER
Dr. Tarlach McGonagle
Senior researcher
Institute for Information Law (IViR)
Faculty of Law
University of Amsterdam
The Netherlands
Website: http://www.ivir.nl/staff/mcgonagle.html
E-mail: [email protected]
2
Table of contents
Introduction
Unravelling “hate speech”
Hate speech and international law
I. The Council of Europe and hate speech
1. The European Convention on Human Rights
1.1 Freedom of expression
1.2 Hate speech
1.3 Political expression
1.4 Political expression and hate speech
2. Other Council of Europe strategies against hate speech
2.1 Treaty-based strategies
2.2 Political, policy-making and monitoring strategies
II. Online hate speech
1. New and pressing issues
1.1 Liability and jurisdictional issues
1.2 Victims’ perspectives
1.3 Responses and remedies
1.4 Implications for the future
2. The Council of Europe and online hate speech
Conclusions and recommendations
3
Introduction
1
Although the term, hate speech, is widely used in legal, policy-making and academic circles,
there is often disagreement about its scope and about how it can best be countered. This paper
will commence by briefly unravelling the term, hate speech, and explaining why
differentiated strategies are required to effectively combat hate speech. The introduction will
also briefly situate hate speech within international human rights treaty law. Section I will
provide a general overview of the Council of Europe’s strategies against hate speech, which
include treaty-based approaches, monitoring systems, political and policy-making measures,
educational, informational and cultural initiatives, etc. This overview does not purport to be
comprehensive, much less exhaustive. Rather, it will sketch, in an indicative manner, the
broad lines of the Council of Europe’s strategies against hate speech. The European
Convention on Human Rights (ECHR) will be examined in greater detail than the other
treaties because of its central position in the Council’s legal arsenal and its consequent
referential value for all of the Council’s other treaties and instruments. Particular attention
will be paid to the tensions between freedom of political expression and the permissibility of
hate speech as the challenge of resolving those tensions represents a real stress test for the
ECHR’s commitment to the right to freedom of expression. Section II of the paper will
explore new dimensions to hate speech that have emerged – and continue to emerge – in the
online environment. It will then provide by an assessment of the Council of Europe’s specific
responses to these new dimensions. It will conclude by putting forward a number of
recommendations for policy making and future lines of action by various Council of Europe
bodies in order to tackle online hate speech.
Unravelling “hate speech”
“Hate speech” has not (yet) been defined in a watertight or authoritative way, either in
international human rights law or in relevant scholarship. The term is a convenient shorthand
way of referring to a broad spectrum of extremely negative discourse stretching from hatred
and incitement to hatred; to abusive expression and vilification; and arguably also to extreme
forms of prejudice and bias.
2
Robert Post has posited that a certain threshold of intensity must
be reached before a particular expression can be qualified as hate speech.
3
He points to the
Oxford English Dictionary entry for “hate”: “an emotion of extreme dislike or aversion;
detestation, abhorrence, hatred”.
4
For Post, the threshold or definitional prerequisite is the
1
This paper draws – and expands - on earlier work by the author, including: “The troubled relationship
between free speech and racist hate speech: the ambiguous roles of the media and internet”, Expert Paper, Day
of Thematic Discussion “Racist Hate Speech” (28 August 2012), UN Committee on the Elimination of Racial
Discrimination, 81
st
Session, Geneva, 6-31 August 2012; Minority rights, freedom of expression and of the
media: dynamics and dilemmas (Antwerp, Intersentia, 2011); “A Survey and Critical Analysis of Council of
Europe Strategies for Countering ‘Hate Speech’”, in Michael Herz & Peter Molnar, Eds., Content and Context:
Rethinking Regulation and Remedies for Hate Speech (New York, Cambridge University Press, 2012), pp. 456-
498; “Minorities and Online ‘ Hate Speech’: A Parsing of Selected Complexities”, 9 European Yearbook of
Minority Issues (2010), pp. 419-440. The author is grateful to Rade Obradovic, a research intern at IViR, for his
helpful assistance with an initial literature search.
2
James B. Jacobs and Kimberly Potter, Hate Crimes: Criminal Law and Identity Politics (New York, Oxford
University Press, 1998), p. 11.
3
Robert Post, “Hate Speech”, in Ivan Hare and James Weinstein, Eds., Extreme Speech and Democracy (New
York, Oxford University Press, 2009), p. 123-138, at 123.
4
Ibid.
4
qualification, “extreme”, because ordinary “intolerance and dislike are necessary human
emotions which no legal order could pretend to abolish”.
5
From a legal perspective, the hate speech spectrum stretches from types of expression that are
not entitled to protection under international human rights law (eg. incitement to various
specified acts), through types of expression that may or may not be entitled to protection,
depending on the existence and weighting of a number of “contextual variables”
6
(eg.
extremely offensive expression), to types of expression that presumptively would be entitled
to protection, despite their morally objectionable character (eg. negative stereotyping of
minorities
7
). The right to freedom of expression necessarily covers expression that may
“offend, shock or disturb” certain groups in society (which is not the same thing as a right to
offend
8
).
9
Democracy is not without its rough edges and tough talk is part of the cut and
thrust of public debate and discourse.
The challenge, then, is to identify the tipping point at which robust debate, contestation or
criticism transforms into hate speech, or more precisely, a type of hate speech. It is important
to differentiate between the various types of expression on the hate speech spectrum: they
vary in terms of the intent of the speaker,
10
the intensity of the expression, the severity of its
impact, etc. Recognition of contextual factors can therefore usefully help to calibrate
responses to, or formulate policies for, different types of hate speech.
11
Further differentiation
between forms of hate speech can be attained by determining whether the expression is:
“direct (sometimes called ‘specific’) or indirect; veiled or overt; single or repeated; backed by
power, authority, or threat, or not”.
12
These types of differentiation are of crucial relevance
when attempting to gauge the impact of hate speech on its targets/victims.
Once the differentiation inherent in the term hate speech and its significance have been
recognized and understood, meaningful examination of the rationales for regulating hate
speech can commence.
The purpose of regulating hate speech is to prevent interference with other rights and to
prevent the occasioning of certain harms. In the first place, hate speech can interfere with
5
Ibid.
6
Michel Rosenfeld, “Hate Speech in Constitutional Jurisprudence: A Comparative Analysis”, 24 Cardozo Law
Review (2003), 1523-1567, at 1565.
7
For a detailed analysis of this – and related topics – see: Alexandra Timmer, “Toward an Anti-Stereotyping
Approach for the European Court of Human Rights”, 11 Human Rights Law Review (No. 4, 2011), 707-738.
8
See further, Onora O’Neill, “A Right to Offend?”, The Guardian, 13 February 2006; Francesca Klug,
“Freedom of Expression Must Include a Licence to Offend”, 1(3) Religion and Human Rights (2006), 225-227.
9
Handyside v. the United Kingdom, Judgment of the European Court of Human Rights of 7 December 1976,
Series A, No. 24, para. 49.
10
In this connection, Jogchum Vrielink usefully distinguishes three categories of perpetrators of (racist) hate
speech: offenders by conviction, activists/instrumentalists and incidentalists: Jogchum Vrielink, Van haat
gesproken? Een rechtsantropologisch onderzoek naar de bestrijding van rasgerelateerde uitingsdelicten in
Belgie (Antwerp, Maklu, 2011). pp. 466 et seq.
11
See further: Jean-François Gaudreault-DesBiens, “From Sisyphus’s Dilemma to Sisyphus’s Duty? A
Meditation on the Regulation of Hate Propaganda in Relation to Hate Crimes and Genocide”, 46 McGill Law
Journal (2000), 121-139, at 133. See also in this connection, Bhikhu Parekh, “Is There a Case for Banning Hate
Speech?”, in Michael Herz & Peter Molnar, Eds., Content and Context: Rethinking Regulation and Remedies for
Hate Speech, op. cit., pp. 37-56, at 54-55.
12
Richard Delgado and Jean Stefancic, “Four Observations about Hate Speech”, 44 Wake Forest Law Review
(2009), 353-370, at 361. See also: Richard Delgado and Jean Stefancic, Understanding Words That Wound
(Boulder, Colorado, Westview Press, 2004), pp. 11-12.
5
other human rights or “operative public” values:
13
dignity, non-discrimination and equality,
(effective) participation in public life (including public discourse
14
), freedom of expression,
association, religion, etc. Second, the prevention of particular harms suffered by individual
victims should also be considered: psychological harm, damage to self-esteem, inhibited self-
fulfilment, fear, etc.
15
All in all, the range of harms to be prevented or minimised is varied and complex. The
challenge is therefore to identify “which criteria allow us to distinguish between harms that
justify restrictions and those that do not”.
16
Those criteria should then guide relevant
regulatory and other approaches to hate speech. Whereas some types of hate speech – the
most egregious forms - may be best dealt with by regulatory (even including criminal)
measures, others are more suitably dealt with by educational, cultural, informational and
other non-regulatory (and necessarily non-criminal) measures. Insofar as a regulatory
framework is necessary to counter hate speech, that framework should be holistic, in
recognition of the fact that hate speech covers a range of different types of expression. But it
is not enough for that regulatory framework to be holistic: the approaches it sets out must also
be differentiated. The regulatory framework must also be complemented by a framework for
non-legal action. The “horses for courses” principle applies.
Hate speech and international law
Although the term, hate speech, is neither enshrined nor defined in international law,
numerous international instruments contain provisions focusing on different types of
expression that would typically be considered as constituting hate speech. They include, most
saliently:
17
- The Convention on the Prevention and Punishment of the Crime of Genocide (the
Genocide Convention) (esp. Article III(c) - direct and public incitement to commit
genocide);
- The International Convention on the Elimination of All Forms of Racial
Discrimination (ICERD) (esp. Articles 4 and 5 – all dissemination of ideas based on
racial superiority or racial hatred, incitement to racial discrimination, with due regard
to the right to freedom of expression);
- The International Covenant on Civil and Political Rights (ICCPR) (esp. Articles 19
and 20 – respectively, freedom of expression (including permissible grounds for
restricting the right) and advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence).
13
Operative public values are those values “that a society cherishes as part of its collective identity and in terms
of which it regulates the relations between its members”, and which “constitute the moral structure of its public
life and give it coherence and stability”: Bhikhu Parekh, Rethinking Multiculturalism: Cultural Diversity and
Political Theory (2
nd
Edition) (New York, Palgrave Macmillan, 2006), p. 363.
14
For a thorough analysis of this topic, see: Robert C. Post, “Racist Speech, Democracy, and the First
Amendment”, 32 William and Mary Law Review (1991), 267-327.
15
See generally, Mari J. Matsuda, Charles R. Lawrence III, Richard Delgado and Kimberlè Williams Crenshaw,
Eds., Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (Boulder/San
Francisco/Oxford, Westview Press, 1993).
16
David Kretzmer, “Freedom of Speech and Racism”, 8 Cardozo Law Review (1987), 445-513, at 478.
17
For critical analysis and evaluation of each of these treaties, see: Tarlach McGonagle, Minority Rights,
Freedom of Expression and of the Media: Dynamics and Dilemmas, op. cit., Chapter 6.
6
ICERD is widely – and correctly - perceived as an outlier among other international human
rights treaties that contain provisions governing the relationship between freedom of
expression and hate speech, insofar as Article 4, ICERD, creates more far-reaching
obligations for States parties than comparable provisions in other treaties. Article 4, ICERD,
requires States to render several types of expression punishable by law, whereas, for instance,
Article 20 of the ICCPR requires that a narrower range of types of expression be prohibited
by law. Article III of the Genocide Convention also renders direct and public incitement to
commit genocide punishable, but that is more tightly-focused than the list of offences set out
in Article 4, ICERD.
The scope and content of a number of these treaty provisions have been further clarified by
General Comments or Recommendations, eg. the Human Rights Committee’s General
Comment (GC) No. 34 on the right to freedom of expression
18
and the Committee on the
Elimination of Racial Discrimination’s (CERD) General Recommendation (GR) No. 35,
entitled “Combating racist hate speech”.
19
The Human Rights Committee’s GC No. 34 only
gives summary treatment to the relationship between Articles 19 and 20, ICCPR and clarifies
its previous jurisprudence on relevant issues. CERD’s GR No. 35, on the other hand, appears
to signal a new démarche in the Committee’s approach to hate speech. Whereas CERD’s
approach has traditionally relied heavily on criminal measures against (racist) hate speech,
the new GR emphasises the relevance and potential of alternative responses, inter alia, of an
educational, informational and cultural nature. This navigational turn could, in time, lead to a
closer re-alignment of ICERD with other international human rights treaties such as the
ICCPR and thereby allow it to lose its perceived outlier status for freedom of expression
issues.
It is important to view the Council of Europe’s strategies against hate speech – the focus of
the next section - against the backdrop of the aforementioned (and other) international
instruments and political developments and initiatives.
20
Section I: The Council of Europe and hate speech
The Council of Europe employs a number of concurrent strategies to counter hate speech.
These strategies have been developed pursuant to the Council’s various treaties and other
standard-setting and monitoring initiatives. While they are broadly congruent in terms of their
overall objectives and approaches, each initiative is characterised by its own priorities,
emphases, and procedural possibilities. This has resulted in considerable diversity in the
range of strategies devised by the Council to combat hate speech. They include: the denial or
reduction of legal protection for hate speech; the facilitation and creation of expressive
18
United Nations Human Rights Committee, General Comment No. 34 – Article 19: Freedoms of opinion and
expression, Doc. No. CCPR/C/GC/34, 12 September 2011, paras. 50-52. For commentary and analysis, see:
Michael O’Flaherty, “Freedom of Expression: Article 19 of the International Covenant on Civil and Political
Rights and the Human Rights Committee’s General Comment No 34”, 12 Human Rights Law Review (No. 4,
2012), pp. 627-654.
19
CERD General Recommendation No. 35 - Combating racist hate speech, CERD/C/GC35, 9 September 2013
(adopted at the 83
rd
session of CERD, 12-30 August 2013).
20
See, for example, the Rabat Plan of Action on the prohibition of advocacy of national, racial or religious
hatred that constitutes incitement to discrimination, hostility or violence, Conclusions and recommendations
emanating from the four regional expert workshops organised by OHCHR, in 2011, and adopted by experts in
Rabat, Morocco on 5 October 2012.
7
opportunities (especially access to the media) for minorities; and the promotion of
intercultural dialogue and understanding at the societal level.
This Section will provide an overview of the most salient of the aforementioned strategies for
tackling hate speech, as well as the normative standards, jurisprudence, and monitoring
practices on which they are based. It will start with treaty-based mechanisms and move on to
other standard-setting and monitoring initiatives that are not treaty-based. The main treaties
considered are the European Convention on Human Rights (ECHR), the Framework
Convention for the Protection of National Minorities, the European Convention on
Transfrontier Television and the Additional Protocol to the Convention on Cybercrime,
concerning the criminalisation of acts of a racist and xenophobic nature committed through
computer systems. The other, non-treaty-based initiatives have been developed under the
auspices of the Committee of Ministers, the Parliamentary Assembly and the European
Commission against Racism and Intolerance (ECRI), as well as the periodic Ministerial
Conferences on Mass Media Policy/Media and New Communication Services.
1. The European Convention on Human Rights
1.1 Freedom of expression
Article 10 ECHR is the centrepiece of European-level protection for the right to freedom of
expression. It reads:
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.
Article 10(1) sets out the right to freedom of expression as a compound right comprising
three distinct components: the freedom to hold opinions and to receive and impart
information and ideas. Article 10(1) also countenances the possibility for States to regulate
the audiovisual media by means of licensing schemes. This provision was inserted mainly as
a reaction to the abuse of radio, television and cinema for Nazi propaganda during the Second
World War.
Article 10(2) then proceeds to trammel the core right set out in the preceding paragraph. It
does so by enumerating a number of grounds, based on which the right may legitimately be
restricted, provided that the restrictions are prescribed by law and are necessary in a
democratic society. It justifies this approach by linking the permissibility of restrictions on
the right to the existence of duties and responsibilities which govern its exercise. Whereas the
right to freedom of expression is regarded as being subject to general duties and
responsibilities, the European Court of Human Rights sometimes refers to the specific duties
8
or responsibilities pertaining to specific professions, eg. journalism, politics, education,
military service, etc. In light of the casuistic nature of the Court’s jurisprudence on duties and
responsibilities and in light of its ongoing efforts to apply its free expression principles to the
Internet (see further, below), it is only a matter of time before it begins to proffer indications
of the content of Internet actors’ duties and responsibilities in respect of freedom of
expression.
The European Court of Human Rights has developed a standard test to determine whether
Article 10, ECHR, has been violated. Put simply, whenever it has been established that there
has been an interference with the right to freedom of expression, that interference must first
of all be prescribed by law (i.e., it must be adequately accessible and reasonably foreseeable
in its consequences). Second, it must pursue a legitimate aim (i.e., correspond to one of the
aims set out in Article 10(2)). Third, it must be necessary in a democratic society (i.e.,
correspond to a “pressing social need”) and be proportionate to the legitimate aim(s) pursued.
Under the margin of appreciation doctrine, which has an important influence on how the
ECHR is interpreted at national level, States are given a certain amount of discretion in how
they regulate expression.
21
The extent of this discretion, which is subject to supervision by
the European Court of Human Rights, varies depending on the nature of the expression in
question. Whereas States only have a narrow margin of appreciation in respect of political
expression, they enjoy a wider margin of appreciation in respect of public morals, decency
and religion. This is usually explained by the absence of a European consensus on
whether/how such matters should be regulated. When exercising its supervisory function, the
European Court of Human Rights does not take the place of the national authorities, but
reviews the decisions taken by the national authorities pursuant to their margin of
appreciation under Article 10, ECHR. Thus, the Court looks at the expression complained of
in the broader circumstances of the case and determines whether the reasons given by the
national authorities for the restriction and how they implemented it are “relevant and
sufficient” in the context of the interpretation of the Convention.
Besides the margin of appreciation doctrine, three other interpretive principles espoused by
the Court are of particular relevance for the right to freedom of expression: the practical and
effective doctrine; the living instrument doctrine and the positive obligations doctrine.
According to the practical and effective doctrine, all rights guaranteed by the ECHR must be
“practical and effective” and not merely “theoretical or illusory”.
22
Under the “living
instrument” doctrine,
23
the ECHR is regarded as a “living instrument” which “must be
interpreted in the light of present-day conditions”.
24
The essence of the positive obligations
doctrine is that in order for States to ensure that everyone can exercise all of the rights
enshrined in the ECHR in a practical and effective manner, the typical stance of non-
interference (or negative obligation) by State authorities will often not suffice. As the Court
affirmed in Özgür Gündem v. Turkey: “Genuine, effective exercise of [the right to freedom of
21
Initially developed in the Court’s case-law, a reference to the doctrine will be enshrined in the Preamble to the
ECHR as soon as the Convention’s Amending Protocol No. 15 enters into force.
22
Airey v. Ireland, Judgment of the European Court of Human Rights of 9 October 1979, para. 24.
23
For an overview of the historical development of the “living instrument” doctrine (including recent
developments) by the European Court of Human Rights, see: Alastair Mowbray, “The Creativity of the
European Court of Human Rights”, Human Rights Law Review 5: 1 (2005), 57-79.
24
Tyrer v. the United Kingdom, Judgment of the European Court of Human Rights of 25 April 1978, Series A,
no. 26, para. 31; Matthews v. the United Kingdom, Judgment of the European Court of Human Rights of 18
February 1999, para. 39.
9
expression] does not depend merely on the State's duty not to interfere, but may require
positive measures of protection, even in the sphere of relations between individuals”.
25
1.2 Hate speech
In its seminal ruling in Handyside v. the United Kingdom (a case involving restrictions on the
right to freedom of expression in order to protect morals), the Court 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”.
26
The
Handyside judgment recognises that in democratic society, space has to be created and
sustained for public discussion and debate. Democratic society is not without its rough edges
and pluralistic public debate necessarily involves disagreement and confrontation between
opposing viewpoints. Such disagreement and confrontation – even when expressed in strong
terms (because Article 10 protects not only the substance of information and ideas, but also
the form in which they are conveyed) – ordinarily come within the scope of the protection
offered by Article 10.
The outer extremity of that protection is determined by Article 17, ECHR, which is a
classical prohibition of abuse of rights clause.
27
It can be regarded as a safety mechanism,
designed to prevent the ECHR from being misused or abused by those whose intentions are
contrary to the letter and spirit of the Convention. Although the Court has not always applied
Article 17 consistently,
28
it generally tends to invoke it in order to ensure that Article 10
protection is not extended to racist,
29
xenophobic or anti-Semitic speech;
30
statements
denying, disputing, minimising or condoning the Holocaust,
31
or (neo-)Nazi ideas.
32
As such,
the Court has routinely held cases involving these types of expression to be manifestly
unfounded and therefore inadmissible.
25
Özgür Gündem v. Turkey, Judgment of the European Court of Human Rights (Fourth Section) of 16 March
2000, para. 43.
26
Handyside v. the United Kingdom, op. cit., para. 49.
27
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”.
28
For in-depth analysis, see: Hannes Cannie & Dirk Voorhoof, “The Abuse Clause and Freedom of Expression
in the European Human Rights Convention: An Added Value for Democracy and Human Rights Protection?”,
29 Netherlands Quarterly of Human Rights (No. 1, 2011), pp. 54-83; David Keane, “Attacking hate speech
under Article 17 of the European Convention on Human Rights”, 25 Netherlands Quarterly of Human Rights
(No. 4, 2007), pp. 641-663.
29
Examples include: Seurot v. France, Inadmissibility decision of the European Court of Human Rights
(Second Section) of 18 May 2004, Appn. No. 57383/00; Norwood v. United Kingdom, Inadmissibility decision
of the European Court of Human Rights of 16 November 2004, Appn. No. 23131/03, Reports 2004-XI.
30
See, for example, Pavel Ivanov v. Russia, Inadmissibility decision of the European Court of Human Rights
(First Section) of 20 February 2007, Appn. No. 35222/04.
31
Examples include: Garaudy v. France, Inadmissibility decision of the European Court of Human Rights
(Fourth Section) of 24 June 2003, Appn. No. 65831/01, Reports 2003-IX. See further, Tarlach McGonagle,
“Wresting (Racial) Equality from Tolerance of Hate Speech” (2001) 23 Dublin University Law Journal 21-54.
32
For example, H., W., P. and K. v. Austria, Inadmissibility decision of the European Commission of Human
Rights, Appn. No. 12774/87, 62 DR (1989) 216.
10
The term, hate speech, is not enshrined in the ECHR, and the Court used the actual term,
“hate speech”, for the first time in 1999,
33
but without explaining its introduction, intended
purpose or relationship with existing case-law. So far, the Court has refrained from defining
the term.
34
Instead, the Court appears to prefer to “analyse each case submitted to it on its
own merits and to ensure that its reasoning – and its case-law – is not confined within
definitions that could limit its action in future cases”.
35
In three of the first four judgments in which it used the term, “hate speech”, the Court
resorted to exactly the same wording:
“The Court stresses that the “duties and responsibilities” which accompany the
exercise of the right to freedom of expression by media professionals assume
special significance in situations of conflict and tension. Particular caution is
called for when consideration is being given to the publication of the views of
representatives of organisations which resort to violence against the State lest the
media become a vehicle for the dissemination of hate speech and the promotion
of violence. […]” (emphasis added)
As such, the Court was warning against and seeking to avoid the propagation of a particular
type of expression. The fact that hate speech was not defined in this connection is
unsatisfactory, from the point of view of judicial interpretation, doctrinal development and
general predictability and foreseeability. However, it is not substantively determinative,
because concrete instances of hate speech were not centrally at issue in the cases. Arguably, it
is more important to define what is at issue than what is not.
This point is borne out in the remaining case of the batch of four in which the term hate
speech was first used. In Sürek v. Turkey, the Court relied on the term in a way that did have
significant interpretive consequences. The Court reiterated that “the mere fact that
‘information’ or ‘ideas’ offend, shock or disturb does not suffice to justify” an interference
with the right to freedom of expression. It then stipulated: “What is in issue in the instant case,
however, is hate speech and the glorification of violence”.
36
The significance of this
stipulation is that the Court has conjured up a new type of expression which it considers to go
beyond the scope of the protection carved out by Handyside and its progeny.
37
When used in
this way, viz. to distinguish between types or categories of expression which are protected
under Article 10, ECHR, and those which are not, the need to explain and delineate the
concept becomes much more urgent. If a particular type or category of expression is to be
denied protection, it is of the utmost importance, not least from the perspective of legal
certainty and foreseeability, that the Court would provide a clear sense of what the
concept/category actually entails.
33
It would appear that the term was first used in four Judgments of the European Court of Human Rights, all of
8 July 1999: Sürek v. Turkey (No. 1), para. 62; Sürek & Özdemir v. Turkey, para. 63; Sürek v. Turkey (No. 4),
para. 60 and Erdogdu & Ince v. Turkey, para. 54.
34
See further: Tarlach McGonagle, Minority rights, freedom of expression and of the media: dynamics and
dilemmas, op. cit., Chapters 6.2.1 and 7.1.
35
Françoise Tulkens, “When to say is to do: Freedom of expression and hate speech in the case-law of the
European Court of Human Rights”, in Josep Casadevall, Egbert Myjer, Michael O’Boyle & Anna Austin, Eds.,
Freedom of Expression: Essays in honour of Nicolas Bratza (Oisterwijk, The Netherlands, Wolf Legal
Publishers, 2012), pp. 279-295, at 281.
36
(emphasis added). Ibid., para. 62.
37
Handyside v. the United Kingdom, op. cit.
11
In the absence of a definition, piecemeal clarification is slowly being provided by a growing
body of case-law (selected focuses of which are discussed in the next paragraphs).
38
Nevertheless, because of the different types of expression potentially covered by the term
hate speech, it is important to also differentiate between the types of (legal) responses, for
example by placing greater emphasis on incitement rather than on the tendencies of hate
speech to lead to particular results.
39
It is also important to guard against any further inflation
of the term, or its unwarranted expansion.
40
In 2012, the European Court of Human Rights
recognised homophobic hate speech for the first time;
41
it is unclear whether the Court will
also in the future recognise sexist or misogynist hate speech or hate speech targeting persons
with disabilities – types of hate speech that present strong cases for inclusion within
contemporary understandings of the term.
The European Court of Human Rights’ judgment in the Jersild v. Denmark case has proved
very influential in shaping the contours of the Court’s jurisprudence on the relationship
between freedom of expression and hate speech.
42
The case involved the conviction of Jens
Olaf Jersild, a Danish journalist, for aiding and abetting in the dissemination of racist
statements in a televised interview he had conducted. The statements in question were uttered
by members of an extreme right-wing group known as the “Greenjackets” and the journalist
was convicted largely because he had failed to explicitly contradict, or distance himself from,
the racist and xenophobic statements of the interviewees. The European Court of Human
Rights held that Jersild’s conviction was not “necessary in a democratic society” and that it
therefore violated his rights under Article 10 of the European Convention on Human Rights.
This conclusion rested largely on considerations of context in (news) reporting and the
importance of journalistic autonomy for the functioning of democracy. The Court held that
the journalist’s right to freedom of expression had been infringed, inter alia, because it was
not for the courts to determine which journalistic techniques (e.g. “the methods of objective
and balanced reporting”) should be used.
43
The Grand Chamber of the European Court of Human Rights affirmed in its Nachova
judgment that “the authorities must use all available means to combat racism and racist
38
See further in this connection: Press Unit, European Court of Human Rights, Factsheet – Hate speech, July
2013; Tarlach McGonagle, “A Survey and Critical Analysis of Council of Europe Strategies for Countering
‘Hate Speech’”, op. cit.; Mario Oetheimer, “Protecting Freedom of Expression: The Challenge of Hate Speech
in the European Court of Human Rights Case Law”, 17 Cardozo J. Int’l & Comp. L. 427 (2009); Mario
Oetheimer, “La Cour européenne des Droits de l’Homme face au discours de haine” (2007) 69 (1) Rev trim d h
63; Anne Weber, Manual on hate speech (Strasbourg, Council of Europe Publishing, 2009).
39
Stefan Sottiaux, “‘Bad Tendencies’ in the ECtHR’s ‘Hate Speech’ Jurisprudence”, 7 European Constitutional
Law Review (2011, No. 1), p 40-63, at 62-63. See also, ibid., at 57-58.
40
Françoise Tulkens, “When to say is to do: Freedom of expression and hate speech in the case-law of the
European Court of Human Rights”, op. cit., p. 295.
41
Vejdeland & others v. Sweden, Judgment of 9 February 2012. In 2010, the Committee of Ministers and
Parliamentary Assembly both adopted texts setting out measures to combat discrimination on grounds of sexual
orientation or gender identity, respectively: Recommendation CM/Rec(2010)5 of the Committee of Ministers to
member states on measures to combat discrimination on grounds of sexual orientation or gender identity, 31
March 2010; Parliamentary Assembly of the Council of Europe, Resolution 1728 (2010), “Discrimination on the
basis of sexual orientation and gender identity”, 29 April 2010, and Parliamentary Assembly of the Council of
Europe, Recommendation 1915 (2010), “Discrimination on the basis of sexual orientation and gender identity”,
29 April 2010.
42
Jersild v. Denmark, Judgment of the European Court of Human Rights of 23 September 1994, Series A, No.
298.
43
Ibid., para. 31.
12
violence, thereby reinforcing democracy’s vision of a society in which diversity is not
perceived as a threat but as a source of its enrichment”.
44
In the Seurot case, a teacher was sanctioned for an article he wrote that was published in a
school bulletin. In the article, he deplored – as he put it - the overrunning of France by
“hordes of Muslims”
45
from North Africa. The European Court of Human Rights found that
this sanction did not violate the applicant’s rights under Article 10, ECHR, because of the
undeniably racist tone of the article and the duties and responsibilities of the applicant in his
capacity as a teacher.
In the Norwood case, the applicant, a regional organiser for the British National Party (an
extreme right-wing political party) displayed in the window of his flat a poster depicting the
Twin Towers in flame, the words “Islam out of Britain – Protect the British People” and a
symbol of a crescent and star in a prohibition sign. The applicant had been convicted of a
public order offence by the domestic courts and the European Court of Human Rights agreed
with the assessment of the domestic courts and concluded that his conviction did not breach
Article 10, ECHR because:
[…] the words and images on the poster amounted to a public expression of
attack on all Muslims in the United Kingdom. Such a general, vehement attack
against a religious group, linking the group as a whole with a grave act of
terrorism, is incompatible with the values proclaimed and guaranteed by the
Convention, notably tolerance, social peace and non-discrimination.
The Court followed this key finding in Pavel Ivanov v. Russia,
46
a case involving a
conviction for incitement of hatred towards the Jewish people. The European Court of
Human Rights agreed with the domestic courts’ finding that the series of articles written and
published by the applicant had a “markedly anti-Semitic tenor”.
47
Elements of Nazi ideology or activities inspired by Nazism have featured strongly in the bulk
of the decisions, referred above, that have been routinely declared inadmissible by the Court
(and in the past by the former European Commission of Human Rights). The extent to which
Nazism is incompatible with the ECHR can be gauged from the oft-quoted pronouncement of
the European Commission of Human Rights in H., W., P. and K. v. Austria: “National
Socialism is a totalitarian doctrine incompatible with democracy and human rights and [that]
its adherents undoubtedly pursue aims of the kind referred to in Article 17”.
48
The Court
adopted a very trenchant stance against hate speech in the Garaudy v. France case,
49
which
involved a challenge to the French courts’ conviction of the applicant for the denial of crimes
against humanity, the publication of racially defamatory statements and incitement to racial
hatred. The European Court of Human Rights held that:
44
Nachova and others v Bulgaria, Judgment of the European Court of Human Rights (Grand Chamber) of 6
July 2005, para. 145. See also: Timishev v Russia, Judgment of the European Court of Human Rights (Second
Section) of 13 December 2005, para. 56; D.H. and Others v the Czech Republic, Judgment of the European
Court of Human Rights (Grand Chamber) of 13 November 2007, para. 176.
45
Author’s translation (the decision is only available in French), p. 2.
46
Pavel Ivanov v. Russia, op. cit.
47
Ibid., p. 4.
48
Inadmissibility decision of the European Commission of Human Rights, Appn. No. 12774/87, 62 DR (1989)
216, at pp. 220/1.
49
Garaudy v. France, op. cit.
13
[…] There can be no doubt that denying the reality of clearly established
historical facts, such as the Holocaust, as the applicant does in his book, does not
constitute historical research akin to a quest for the truth. The aim and the result
of that approach are completely different, the real purpose being to rehabilitate
the National-Socialist regime and, as a consequence, accuse the victims
themselves of falsifying history. Denying crimes against humanity is therefore
one of the most serious forms of racial defamation of Jews and of incitement to
hatred of them. The denial or rewriting of this type of historical fact undermines
the values on which the fight against racism and anti-Semitism are based and
constitutes a serious threat to public order. Such acts are incompatible with
democracy and human rights because they infringe the rights of others. Its
proponents indisputably have designs that fall into the category of aims
prohibited by Article 17 of the Convention.
The Court considers that the main content and general tenor of the applicant's
book, and thus its aim, are markedly revisionist and therefore run counter to the
fundamental values of the Convention, as expressed in its Preamble, namely
justice and peace. […]
50
A more problematic case, perhaps, as far as the boundaries of freedom of expression are
concerned, was Lehideux and Isorni v. France.
51
The case concerned an advertisement in a
national newspaper, Le Monde, as part of a campaign for the rehabilitation of the memory of
General Philippe Pétain: the advertisement presented the General’s life in a selective and
positive manner, with certain dark chapters of the General’s life being conspicuous by the
absence of any reference thereto. In this case, the European Court again confirmed that
protection would be withheld from remarks attacking the core of the Convention’s values.
52
However, the impugned advertisement (as it did not amount to Holocaust denial or any other
type of expression that would have prevented it from wriggling through the meshes of the
Article 17 net) was held to be one of a class of polemical publications entitled to protection
under Article 10.
53
The above-cited judicial pronouncements have, both individually and collectively, usefully
helped to clarify the status of performative speech
54
which is offensive, but does not
necessarily amount to one of the various forms of advocacy or incitement defined in
international human rights treaties.
55
As the relevant corpus of case-law from the European
Court of Human Rights continues to grow, so too does the illumination of this rather grey
area. Gündüz v. Turkey, for instance, also contributes to our understanding of where relevant
lines are likely to be drawn by the Court. The case arose out of the participation of the
applicant – the leader of an Islamic sect – in a live studio debate on topics such as women’s
clothing, Islam, secularism and democracy. The applicant was convicted by the Turkish
50
Ibid., p. 23 of the official English translation of excerpts from the decision.
51
Lehideux & Isorni v. France, 23 September 1998, Reports of Judgments and Decisions, 1998-VII.
52
Ibid., para. 53. See also Jersild v. Denmark, op. cit., para. 35.
53
Ibid., paras. 52, 55.
54
For a general exploration of “performative speech”, see: J. L. Austin, How to do things with words
(Oxford/New York/Toronto/Melbourne, Oxford University Press, Repr., 1980); Judith Butler, Excitable Speech:
A Politics of the Performative (New York, etc., Routledge, 1997).
55
See, in particular, Article 20, ICCPR, which reads:
“1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or
violence shall be prohibited by law.”
14
Courts for incitement to hatred and hostility on the basis of a distinction founded on religion.
However, the European Court of Human Rights held:
[…] Admittedly, there is no doubt that, like any other remark directed against the
Convention's underlying values, expressions that seek to spread, incite or justify
hatred based on intolerance, including religious intolerance, do not enjoy the
protection afforded by Article 10 of the Convention. However, the Court
considers that the mere fact of defending sharia, without calling for violence to
establish it, cannot be regarded as “hate speech”. Moreover, the applicant's case
should be seen in a very particular context. Firstly, as has already been noted
[…], the aim of the programme in question was to present the sect of which the
applicant was the leader; secondly, the applicant's extremist views were already
known and had been discussed in the public arena and, in particular, were
counterbalanced by the intervention of the other participants in the programme;
and lastly, they were expressed in the course of a pluralistic debate in which the
applicant was actively taking part. Accordingly, the Court considers that in the
instant case the need for the restriction in issue has not been established
convincingly.
56
The case, Féret v. Belgium,
57
arose from the conviction of a Belgian politician for incitement
to hatred, discrimination and violence due to the racist and xenophobic content of party
political tracts distributed in the context of an electoral campaign. At the operative time, the
applicant, Daniel Féret, was chairman of the far-right Belgian political party, Front National,
editor-in-chief of the party’s political publications, owner of the party’s website (which was
also used to distribute the impugned political tracts) and a member of the Belgian House of
Representatives. Féret was sentenced to 250 hours of community service relating to the
integration of foreign nationals in Belgium, together with a 10-month suspended prison
sentence. Furthermore, he was ruled ineligible to stand for parliamentary elections for a 10-
year period and ordered to pay a provisional sum of 1 Euro to each of the civil parties
involved.
The European Court of Human Rights found that the applicant’s right to freedom of
expression had not been violated, inter alia, because of the volatility of racist or xenophobic
expression during electoral periods
58
and the duty of politicians “to refrain from using or
advocating racial discrimination and recourse to words or attitudes which are vexatious or
humiliating because such behaviour risks fostering reactions among the public which are
incompatible with a peaceful social climate and could erode confidence in democratic
institutions”.
59
In light of the civil nature of the sanctions and the suspended nature of the
prison sentence, the Court found the sanctions not to be excessive.
60
The controversial nature
of this judgment and the extent to which relevant questions persist can be gleaned from the
Joint Dissenting Opinion to the judgment, in which, inter alia, the relationship between
heated political invective and racist expression is examined, as well as the speculative nature
of the link between the impugned expression and the potential harms it could cause.
61
56
Gündüz v. Turkey, Judgment of the European Court of Human Rights (First Section) of 4 December 2003,
para. 51.
57
Féret v. Belgium, Judgment of the European Court of Human Rights (Second Section) of 16 July 2009.
58
Ibid., para. 76.
59
Ibid., para. 77. Author’s translation (as of this writing, the judgment is only available in French).
60
Ibid., para. 80.
61
Dissenting Opinion of Judge Sajo, joined by Judges Zagrebelsky and Tsotsoria.
15
The foregoing analysis sketches the broad lines of the European Court of Human Rights’
main principles governing (various kinds of) racist and hateful expression. At first glance,
Article 17 appears to prima facie deny protection to a range of particularly abusive types of
expression, but when the finer contours of relevant case-law are traced, it can be seen that
substantive examinations are mounted by the Court. This points up that the Court’s reliance
on Article 17 is not always consistent in practice, which is certainly a concern for future
doctrinal development. Because of Article 17’s very far-reaching consequences for freedom
of expression (which has also led to its description as a “guillotine” provision
62
), leading
commentators have called for it to be used “in moderation”,
63
or even for the Court to refrain
from using it, in favour of the substantive test applied when hate speech is examined from an
Article 10 perspective.
64
The argument for the latter position is that: “before one can
conclude with (relative) certainty that such activities took or will take place, all factual and
legally relevant elements of the specific case, such as content, context, intention, impact and
the proportionality of the interference, should be taken into consideration”.
65
1.3 Political Expression
Rationales for the protection of freedom of expression are numerous, rich and varied.
66
They
include arguments centring on participation in democratic society; individual self-realisation,
the search for truth, distrust of government and other functionalist arguments. Arguments
from democracy have traditionally and consistently enjoyed pride of place in the Article 10
case-law of the Court. This can be explained by the “the primordial place of democracy”
67
among the objectives of the ECHR, as well as in the legal systems of States Parties to the
Convention. In fact, the Court has even gone so far as to suggest that democracy “appears to
be the only political model contemplated by the Convention and, accordingly, the only one
compatible with it”.
68
The Court has also held that “[F]ree elections and freedom of expression, particularly
freedom of political debate, together form the bedrock of any democratic system”.
69
States
are therefore under the obligation, inter alia, to hold “free elections at reasonable intervals by
secret ballot under conditions which will ensure the free expression of the opinion of the
people in the choice of the legislature”.
70
According to the Court, “Parliament or such
comparable bodies are the essential fora for political debate” and that “[V]ery weighty
reasons must be advanced to justify interfering with the freedom of expression exercised
62
Françoise Tulkens, “When to say is to do: Freedom of expression and hate speech in the case-law of the
European Court of Human Rights”, op. cit., p. 284.
63
Ibid., pp. 284-285.
64
Hannes Cannie & Dirk Voorhoof, “The Abuse Clause and Freedom of Expression in the European Human
Rights Convention: An Added Value for Democracy and Human Rights Protection?”, op. cit.
65
Ibid., at 83.
66
See generally: Eric Barendt, Freedom of Speech (2
nd
Edition) (Oxford, Oxford University Press, 2005), pp. 6-
23; Frederick Schauer, Free speech: a philosophical enquiry (Cambridge, etc., Cambridge University Press,
1982).
67
Luzius Wildhaber, “A constitutional future for the European Court of Human Rights?”, in 23 HRLJ 161
(2002), at 162.
68
United Communist Party of Turkey & Others v. Turkey, Judgment of the European Court of Human Rights of
30 January 1998, para. 45.
69
Bowman v. the United Kingdom, Judgment of the European Court of Human Rights of 19 February 1998,
Reports of Judgments and Decisions, 1998-I, para. 42.
70
United Communist Party of Turkey & Others v. Turkey, op. cit., para. 44.
16
therein”.
71
But heightened protection for political expression extends beyond institutional
frameworks and processes as well because “freedom of political debate is at the very core of
the concept of a democratic society which prevails throughout the Convention”.
72
In this broad context, the Court has distinguished between the roles of a variety of political
actors, such as elected representatives (of the opposition), political parties and the
government, and has explained how the right to freedom of expression of each actor is shaped
by the nature of the position exercised or status enjoyed.
In the Lingens case, the Court found, seminally, that the “limits of acceptable criticism” are
wider for politicians than for private individuals because politicians “inevitably and
knowingly” lay themselves “open to close scrutiny of [their] every word and deed by both
journalists and the public at large, and [they] must consequently display a greater degree of
tolerance”.
73
The limits of permissible criticism are even wider as regards the government because in a
democratic system “the actions or omissions of the government must be subject to the close
scrutiny not only of the legislative and judicial authorities but also of public opinion”.
74
“Moreover”, the Court continues, “the dominant position which the government occupies
makes it necessary for it to display restraint in resorting to criminal proceedings, particularly
where other means are available for replying to the unjustified attacks and criticisms of its
adversaries”.
75
As noted by the majority judgment in the Féret case, freedom of expression is especially
important for “an elected representative of the people as s/he represents the electorate, draws
attention to their preoccupations and defends their interests”.
76
This applies, a fortiori, to
members of the parliamentary opposition. Both of these principles have been developed in
earlier case-law.
77
The Court sees political parties as having an “essential role in ensuring pluralism and the
proper functioning of democracy”.
78
The unique importance of political parties stems from
the fact that they are “the only bodies which can come to power, also have the capacity to
influence the whole of the regime in their countries”.
79
Moreover, “[B]y the proposals for an
71
Jerusalem, para. 40; A. v. the United Kingdom, no. 35373/97, ECHR 2002-X, para. 79.
72
Lingens v. Austria, Judgment of the European Court of Human Rights of 8 July 1986, Series A, no. 103, para.
42.
73
Ibid.
74
Incal v. Turkey, Judgment of the European Court of Human Rights of 9 June 1998, Reports 1998-IV, para. 54;
Arslan v. Turkey, Judgment of the European Court of Human Rights (Grand Chamber) of 8 July 1999, para. 46,
Öztürk v. Turkey, Judgment of the European Court of Human Rights (Grand Chamber) of 28 September 1999,
ECHR 1999-VI; para. 66, Sener v. Turkey, Judgment of the European Court of Human Rights of 18 July 2000,
para. 40.
75
Arslan v. Turkey, op. cit., para. 46; Öztürk v. Turkey, op. cit., para. 66; see also, for almost identical wording:
Incal v. Turkey, op. cit., para. 54 and Sener v. Turkey, op. cit., para. 40.
76
Féret v. Belgium, op. cit., para. 65.
77
Castells v. Spain, Judgment of the European Court of Human Rights of 23 April 1992, Series A, no. 236, para.
42; Piermont v. France, Judgment of the European Court of Human Rights of 27 April 1995, Series A, no. 314,
para. 76; Jerusalem v. Austria, Judgment of the European Court of Human Rights (Third Section) of 27
February 2001, Reports of Judgments and Decisions 2001-II, para. 36; Ibrahim Aksoy, 49.
78
United Communist Party of Turkey & Others v. Turkey, op. cit., para. 43.
79
Refah Partisi (The Welfare Party) & Others v. Turkey, Judgment of the European Court of Human Rights
(Grand Chamber) of 13 February 2003, para. 87.
17
overall societal model which they put before the electorate and by their capacity to implement
those proposals once they come to power, political parties differ from other organisations
which intervene in the political arena”.
80
The primacy of political expression has consistently been upheld in the Court’s case-law over
the years. Indeed, its scope has expanded incrementally and is now understood to include
debate on matters of public interest in a broad sense of the term.
81
The media have a role to
play here, too: it is “incumbent on [the press] to impart information and ideas on political
issues just as on those in other areas of public interest. Not only does the press have the task
of imparting such information and ideas: the public also has a right to receive them”.
82
1.4 Political expression and hate speech
It is clear that political expression and hate speech are poles apart in terms of the extent of the
legal protection they enjoy under Article 10, ECHR, or a fortiori, Article 17, ECHR.
Although both types of expression frequently coincide in practice, their legal relationship
may appear to be a case of never the ‘twain shall meet. At the very least, this makes for a
vexed relationship. The elucidation of the relationship would benefit enormously from
meticulous engagement with the Court’s established case-law on relevant topics.
It is puzzling, to say the least, that the Court did not anchor its Féret judgment in factually
similar case-law, such as the Norwood case, which was adopted by the same section of the
Court a few years earlier.
83
Other reference points were also overlooked, but the Court’s
failure to consider Norwood was inexplicable.
84
In Norwood, Article 17 was deemed to be
applicable, whereas in Féret, it was not. It would have been very helpful if the Court had
clarified this apparent discrepancy, if only to confirm that the vehemence of the attack was
the determinative consideration.
Everyone engaging in political debate is, in principle, subject to the general limits of freedom
of expression, but given the importance of political debate, specific contextual variables
sometimes require particularly close scrutiny, eg. the content, context, or form of the
expression; the status and intent of the speaker or party; the nature and severity of the
interference and sanction. For example, relevant distinctions can sometimes be made between
80
Ibid.
81
See further: Thorgeir Thorgeirson v. Iceland, Judgment of the European Court of Human Rights of 25 June
1992, Series A, no. 239; Bladet Tromso & Stensaas v. Norway, Judgment of the European Court of Human
Rights of 20 May 1999, Reports of Judgments and Decisions, 1999-III; Nilsen & Johnsen v. Norway, Judgment
of the European Court of Human Rights of 25 November 1999, Reports of Judgments and Decisions, 1999-VIII;
Fressoz & Roire v. France, Judgment of the European Court of Human Rights of 21 January 1999, Reports of
Judgments and Decisions, 1999-I; Bergens Tidende & Others v. Norway, Judgment of the European Court of
Human Rights of 2 May 2000, Reports of Judgments and Decisions, 2000-IV. For additional commentary, see
Tarlach McGonagle, “Workshop Report: The Changing Hues of Political Expression in the Media” in Susanne
Nikoltchev, Ed., IRIS Special: Political Debate and the Role of the Media - The Fragility of Free Speech
(Strasbourg, European Audiovisual Observatory, 2004), pp. 1-30.
82
Lingens v. Austria, Judgment of the European Court of Human Rights of 8 July 1986, Series A, no. 103, para.
41.
83
The Belgian Government invoked Norwood (see para. 50), but the Court did not refer to it elsewhere in the
judgment.
84
See, for example, Glimmerveen and Hagenbeek v. the Netherlands, Appn. nos. 8348/78 and 8406/78,
Inadmissibility decision of the European Commission of Human Rights of 11 October 1979, Decisions and
Reports 18, p. 187. The Jersild case also only had a cameo role in Féret.
18
(i) live debates or election meetings or rallies, where there can be a high incidence of heated,
off-the-cuff remarks, as well as limited practical possibilities for corrective (editorial)
expression, and (ii) concerted, calculated political or election manifestos or campaign
communications, from which a greater seriousness of political intent can be inferred.
Relevant distinctions can also be drawn between whether expression aims to contribute to
public debate, be satirical, exploit sensitive societal issues for electoral gain, or incite to
hatred or violence. In the same vein, it can be pertinent to enquire whether a message (eg. a
tweet) could communicate specific or coded meanings to particular groups. Other questions
that could prove pertinent include whether parliamentary immunity covers the expression;
whether a sanction involving a prohibition on standing for political office is proportionate, etc.
The possibility to explore these often complex contextual factors would be precluded through
the direct application of Article 17.
Another point that could usefully be clarified in future case-law concerns relevant duties and
responsibilities of politicians. Freedom of political expression is not absolute: the exercise of
this freedom is governed by duties and responsibilities. In this connection, the Court has
stressed that: “[as] the struggle against all forms of intolerance is an integral part of human
rights protection, it is crucially important for politicians, in their public discourse, to avoid
expression that is likely to foster intolerance”.
85
Thus, notwithstanding the robust protection
enjoyed by freedom of political expression in democratic society, that freedom does not
include “freedom to express racist opinions or opinions which are an incitement to hatred,
xenophobia, antisemitism and all forms of intolerance”.
86
The trade-off between strong protection for political expression and attending to the duties
and responsibilities that accompany that protection, offers perhaps the most viable prospect
of reconciling political and racist expression. It is therefore to be regretted that the Féret
judgment provided little explanation of the applicant’s relevant duties and responsibilities as
an elected public representative.
The challenge of reconciling political and racist expression can be seen as a veritable stress
test for the Court because it seeks to resolve the tension between protection of the ECHR’s
core values and one of the greatest threats to those values. As politicians, political parties and
governments increasingly rely on new information and communications technologies, the
tensions between political expression and hate speech will accordingly play out more and
more in an online environment.
Against the backdrop of legal limitations on political hate speech, there is ample scope for
non-legal, promotional measures to encourage best practices among politicians and political
parties. Such measures appeal to the sense of “duties and responsibilities” of all political
actors and they have been developed extensively in the context of ECRI’s monitoring work
(see further, below), as well as that of the Advisory Committee on the Framework
Convention for the Protection of National Minorities. Initiatives such as ECRI’s Declaration
on the use of racist, anti-Semitic and xenophobic elements in political discourse
87
and the
85
[Author’s translation from original French] Erbakan v. Turkey, Judgment of the European Court of Human
Rights (First Section) of 6 July 2006, para. 64. See also, for relevant duties and responsibilities of a mayor,
Willem v. France, Judgment of the European Court of Human Rights (Fifth Section) of 16 July 2009, para. 37.
86
Preamble, Committee of Ministers’ Declaration on freedom of political debate in the media, 12 February 2004.
87
Adopted on 17 March 2005.
19
Charter of European Political Parties for a Non-Racist Society
88
have the potential for further
uptake and operationalisation.
2. Other Council of Europe strategies against hate speech
2.1 Treaty-based strategies
Framework Convention for the Protection of National Minorities
The Framework Convention for the Protection of National Minorities (FCNM) sets out a
range of rights to be enjoyed by persons belonging to national minorities. Its Articles 6
(encouragement of a spirit of tolerance and intercultural dialogue) and 9 (freedom of
expression and access to the media) are the most pertinent provisions in respect of the
relationship between freedom of expression and hate speech. Pursuant to these two articles, in
particular, the Advisory Committee on the FCNM (the main monitoring body for the treaty)
has elaborated a comprehensive strategy for tackling intolerance, hatred and (other) various
contributory causes of hate speech. It seeks to address the problem of hate speech before it
actually spawns by emphasising the need to foster, including via the media, improved inter-
ethnic and intercultural understanding and tolerance through the development of dialogical
relationships between communities. These strategies are informed by a realisation that the
media are capable of contributing to the promotion of tolerance and intercultural
understanding, as well as to the elimination of negative stereotyping and negative portrayal of
minorities. Although the textual emphasis in Article 9, FCNM, is on the print and broadcast
media, there is a growing awareness of the importance of the online dimension within the
monitoring activities.
European Convention on Transfrontier Television
89
The main purpose of the European Convention on Transfrontier Television (ECTT) is to
“facilitate, among the Parties, the transfrontier transmission and the retransmission of
television programme services”
90
and thereby advance the general objectives of the Council
of Europe, including freedom of expression and information, pluralism, cultural development,
etc.
91
Article 7, ECTT, entitled ‘Responsibilities of the broadcaster’, recalls the need for
broadcasts to respect human dignity and the fundamental rights of others, and to avoid
incitement to racial hatred.
Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts
of a racist and xenophobic nature committed through computer systems
The Council of Europe’s Convention on Cybercrime was roundly criticised for its failure to
address racism and xenophobia, and an Additional Protocol (AP) to the Convention was
promptly drawn up in order to fill this lacuna. The AP requires States Parties to adopt (and
enforce) legislation and/or other effective measures to render various types of racist conduct
88
Adopted on 28 February 1998.
89
It should be noted that this treaty now faces an uncertain (political) future, following an official
announcement that its revision has been discontinued. For details, see: Council of Europe Press Release,
“Transfrontier television: the revision of the Convention discontinued”, 4 February 2011, available at:
http://www.coe.int/t/dghl/standardsetting/media/T-TT/default_en.asp .
90
Article 1, ECTT.
91
Preamble, ECTT.
20
committed via computer systems criminal offences under domestic law, “when committed
intentionally and without right”. The measures to be taken at national level should target: the
dissemination of racist and xenophobic material via computer systems (Article 3); racist and
xenophobic motivated threat (Article 4) and insult (Article 5); the denial, gross minimisation,
approval or justification of genocide or crimes against humanity (Article 6), and aiding or
abetting in the above (Article 7). As suggested by its title, the AP concerns first and foremost
criminal-law measures against online hate speech; this express focus leaves little room for
exploring civil-law and other (non-legal) remedies and responses.
2.2 Political, policy-making and monitoring strategies
Committee of Ministers
The Committee of Ministers’ most extensive engagement with hate speech came in 1997,
with the adoption of Recommendations on “hate speech”
92
and on the media and the
promotion of a culture of tolerance.
93
The former deals with the negative role the media may
play in the propagation of hate speech, while the latter deals with the positive contribution the
media can make to countering such speech. The complementarity of the two
Recommendations is therefore obvious. For the purposes of Recommendation 97(20), hate
speech is taken to cover:
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.
94
It is clear from the Preamble to the Recommendation that it is anchored in the prevailing
standards of international law as regards both freedom of expression and anti-racism. It
acknowledges the need to grapple with “all forms of expression which incite to racial hatred,
xenophobia, antisemitism and all forms of intolerance, since they undermine democratic
security, cultural cohesion and pluralism”. It also recognizes and draws attention to a number
of the central paradoxes involved, eg., that the dissemination of such forms of expression via
the media can lead to their having “a greater and more damaging impact”, but that there is
nevertheless a need to “respect fully the editorial independence and autonomy of the media”.
These are circles that are not easily squared in the abstract, hence the aim of the
Recommendation to provide “elements” of guidance for application in specific cases.
The operative part of the Recommendation calls on national governments to take appropriate
steps to implement the principles annexed to the Recommendation; “ensure that such steps
92
Recommendation No. R (97) 20 of the Committee of Ministers to Member States on “Hate Speech”, 30
October 1997.
93
Recommendation No. R (97) 21 of the Committee of Ministers to Member States on the media and the
promotion of a culture of tolerance, 30 October 1997.
94
Recommendation No. R (97) 20, op. cit. The drafting process of the Recommendations can be traced to the
Summit of Heads of State and Government of the Council of Europe Member States held in Vienna in 1993.
The Summit concluded with the adoption of, inter alia, a Declaration and Action Plan on combating racism,
xenophobia, antisemitism, and intolerance. That Declaration set out the parameters for the work that was to
follow. This is the formal explanation for why the resulting Recommendation (97) 20 on “hate speech” does not
cover all forms of intolerance (e.g., “intolerance on grounds of sex, sexual orientation, age, handicap, etc.”).
Explanatory Memorandum to Recommendation No. R (97) 20 on “Hate Speech”, para. 22.
21
form part of a comprehensive approach to the phenomenon, which also targets its social,
economic, political, cultural and other root causes”; where States have not already done so,
“sign, ratify and effectively implement” ICERD in their domestic legal orders; and “review
their domestic legislation and practice in order to ensure that they comply with the principles”
appended to the Recommendation.
95
The principles in question address a wide range of issues. Principle 1 points out that public
officials are under a special responsibility to refrain from making statements – particularly to
the media – which could be understood as, or have the effect of, hate speech. Furthermore, it
calls for such statements to be “prohibited and publicly disavowed whenever they occur.”
According to Principle 2, States authorities should “establish or maintain a sound legal
framework consisting of civil, criminal and administrative law provisions on hate speech
which enable administrative and judicial authorities to reconcile in each case respect for
freedom of expression with respect for human dignity and the protection of the reputation or
rights of others.” It suggests detailed ways and means of achieving such ends. Principle 3
stresses that States authorities should ensure that within their legal frameworks,
“interferences with freedom of expression are narrowly circumscribed and applied in a lawful
and non-arbitrary manner on the basis of objective criteria.”
Principle 4 affirms that some particularly virulent strains of hate speech might not warrant
any protection whatsoever under Article 10, ECHR. This is a reference to the import of
Article 17, ECHR, and to existing case-law on the interaction of Articles 10 and 17. Principle
5 highlights the need for a guarantee of proportionality whenever criminal sanctions are
imposed on persons convicted of hate speech offences.
Whereas the Recommendation as a whole is redolent of the Jersild case generally,
96
Principle
6 specifically harks back to one of the Court’s key findings in the case: it calls for national
law and practice to distinguish “between the responsibility of the author of expressions of
hate speech on the one hand and any responsibility of the media and media professionals
contributing to their dissemination as part of their mission to communicate information and
ideas on matters of public interest on the other hand”. The reasoning behind this Principle is
that “it would unduly hamper the role of the media if the mere fact that they assisted in the
dissemination of the statements engaged their legal responsibility or that of the media
professional concerned”.
97
Principle 7 develops this reasoning by stating that national law
and practice should be cognisant of the fact that:
reporting on racism, xenophobia, anti-Semitism, or other forms of intolerance is fully
protected by Article 10(1), ECHR, and may only be restricted in accordance with
Article 10(2), ECHR;
when examining the necessity of restrictions on freedom of expression, national
authorities must have proper regard for relevant case-law of the European Court of
Human Rights, including the consideration afforded therein to “the manner, contents,
context and purpose of the reporting”;
“respect for journalistic freedoms also implies that it is not for the courts or the public
authorities to impose their views on the media as to the types of reporting techniques
to be adopted by journalists”.
98
95
Recommendation No. R (97) 20, op. cit., paras. 1-4.
96
See: Explanatory Memorandum to Recommendation No. R (97) 20, op. cit., paras. 19, 30, 38, 46 et seq.
97
Ibid., para. 38.
98
Recommendation No. R (97) 20, op. cit., Appendix; Principle 7.
22
Recommendation 97(21)
Whereas combating hate speech may be considered a defensive or reactive battle, the
promotion of tolerance – an objective to which it is intimately linked – is more proactive.
Recommendation (97) 21 on the media and the promotion of a culture of tolerance was
conceived of as the logical complement to the Recommendation on “Hate Speech”. The
main justification for preparing a separate Recommendation dealing with the positive
contribution which the media can make to countering hate speech was:
As concerns the propagation of racism and intolerance there is, in principle, scope
for imposing legally binding standards without violating freedom of expression
and the principle of editorial independence. However, as concerns the promotion
of a positive contribution by the media, great care needs to be taken so as not to
interfere with these principles. This area calls for measures of encouragement
rather than legal measures.
99
The Recommendation urges Member States to raise awareness of the media practices they
promote in all sections of the media and to remain open to supporting initiatives which would
further the objectives of the Recommendation. It is suggested that initial and further training
programmes could do more to sensitise (future) media professionals to issues of
multiculturalism, tolerance, and intolerance. Reflection on such issues is called for among the
general public, but crucially also within media enterprises themselves. It is also pointed out
that it would be desirable for representative bodies of media professionals to undertake
“action programmes or practical initiatives for the promotion of a culture of tolerance” and
that such measures viably could be complemented by codes of conduct.
Broadcasters, especially those with public service mandates, are encouraged to “make
adequate provision for programme services, also at popular viewing times, which help
promote the integration of all individuals, groups and communities as well as proportionate
amounts of airtime for the various ethnic, religious and other communities”. They also are
encouraged to promote the values of multiculturalism in their programming, especially in
their programme offerings targeting children. Finally, the Recommendation mentions the
benefits of codes of conduct in the advertising sector which prohibit discrimination and
negative stereotyping. It also flags the usefulness of advertising campaigns promoting
tolerance.
Together, the twin Recommendations on “hate speech” and on the media and the promotion
of a culture of tolerance serve as an influential reference point among standard-setting texts
adopted by the Committee of Ministers. They are frequently invoked in other
Recommendations and Declarations. For instance, they – or their underlying principles, such
as the protection of human dignity - have informed the Committee of Ministers’ approaches
to freedom of political debate, the fight against terrorism, the promotion of intercultural
dialogue, the safeguarding of human rights in a digital environment, and the protection of
minors, especially in an online context.
100
Parliamentary Assembly
99
Explanatory Memorandum to Recommendation No. R (97) 20, op. cit., para. 12.
100
For details and analysis, see: Tarlach McGonagle, “A Survey and Critical Analysis of Council of Europe
Strategies for Countering ‘Hate Speech’”, op. cit., at 478-483.
23
The Parliamentary Assembly’s engagement with hate speech, especially in recent years, has
tended to focus on the various flashpoints in the relationship between freedom of expression,
freedom of religion and hate speech. Its overall approach to relevant questions, like that of
other bodies of the Council of Europe, blends restrictive and promotional measures for
principled and strategic reasons. As such, in some contexts it advocates criminalisation of
certain kinds of expression and in other contexts it calls for emphasis on, and adherence to,
media codes of ethics for tackling stereotyping and intolerance, enhanced communicative
opportunities for different groups in society, as well as capacity-building measures.
European Commission against Racism and Intolerance
The work of the European Commission against Racism and Intolerance (ECRI) is divided
into three main strands: the monitoring of racism and related issues on a country-by-country
basis; work on general themes, especially the elaboration of general policy recommendations
and the promotion of best practices against racism; and engagement with civil society.
101
Generally speaking, ECRI pursues a root-and-branch approach against hate speech. It
advocates both punitive and preventive measures against hate speech and thus alternates –
depending on the situation – between strategies that are restrictive of certain types of
expression and strategies that seek to promote other types of expression or expressive
opportunities. Its General Policy Recommendations (GPRs) deal with topics such as
specialised bodies to combat racism, national legislation to combat racism, racism in
education, policing and the fight against terrorism, racism against particular groups and
online racism. In its country monitoring work, in particular, ECRI consistently pays attention
to the use/impact of racist expression in/on public discourse – by politicians, via the media
and Internet. For instance, it frequently calls for greater vigilance in monitoring forms of
racist expression propagated via the Internet and greater efforts to prosecute those responsible
for such expression. In this connection, it routinely cites its GPR No. 6 – Combating the
dissemination of racist, xenophobic and anti-Semitic material via the Internet.
102
Although
ECRI has not (yet) adopted a GPR specifically on combating racism while respecting
freedom of expression, it has organized an expert seminar on the topic,
103
which could
perhaps be built on in the future.
Ministerial Conferences on Mass Media Policy
European Ministerial Conferences on Mass Media Policy have been held periodically since
the mid-1980s. These conferences involve the participation of Ministers (or their delegates)
with relevant portfolios at the national level. As such, the Ministerial Conferences can be
distinguished from the day-to-day activities of the Council of Europe. Their relevance stems
from their purpose to map out future European media policy, supplemented by action plans
for its implementation. In order to reflect changing notions of the media, the most recent
conference was calibrated differently - as the “1
st
Council of Europe Conference of Ministers
responsible for Media and New Communication Services”.
104
101
See further: Lanna Hollo, The European Commission against Racism and Intolerance (ECRI): Its first 15
years (Strasbourg, Council of Europe Publishing, 2009).
102
Adopted on 15 December 2000.
103
16-17 November 2006. See the conference proceedings (2007, available via the ECRI website).
104
A new notion of media?, 28-29 May 2009, Reykjavik, Iceland.
24
Of the seven Conferences on Mass Media Policy, the 4
th
, 5
th
, and 7
th
have most directly
engaged with the issues of hate speech or tolerance and intolerance in the media.
105
It was the
5
th
European Ministerial Conference on Mass Media Policy,
106
held in 1997, that paid the
greatest attention to issues related to hate speech. Paragraphs 11 and 12 of the Political
Declaration adopted at that Conference refer in general terms to the potential offered and
risks posed by new communications and information services for freedom of expression and
other rights and values. In a similar vein, Resolution No. 1: The impact of new
communication technologies on human rights and democratic values, emphasises the
Ministers’ condemnation of the use of new technologies and services “for spreading any
ideology, or carrying out any activity, which is contrary to human rights, human dignity, and
democratic values,” as well as their resolve to “combat such use”.
107
Resolution No. 2: Rethinking the regulatory framework for the media, calls on participating
States to give domestic effect to the principles enshrined in the Committee of Ministers’
Recommendations on, inter alia, “hate speech” and on the media and the promotion of a
culture of tolerance.
108
It also calls on States authorities “to ensure that measures for
combating the dissemination of opinions and ideas which incite to racial hatred, xenophobia,
anti-Semitism and all forms of intolerance through the new communications and information
services duly respect freedom of expression and, where applicable, the secrecy of
correspondence”.
109
The reinforcement of cooperation within the Council of Europe, while
liaising with other IGOs and “interested professional organisations,” is also advocated.
110
Such cooperation should have standard-setting aspirations, initially for Europe and later more
widely. The suggested focus is on “problems of delimiting public and private forms of
communication, liability, jurisdiction and conflict of laws in regard to hate speech
disseminated through the new communications and information services”.
111
The Conference’s Action Plan calls for study of “the practical and legal difficulties in
combating the dissemination of hate speech, violence and pornography via the new
communications and information services, with a view to taking appropriate initiatives in a
common pan-European framework”. As already mentioned supra, it also calls for the
“periodical evaluation” of Member States’ “follow-up” to the Committee of Ministers’
Recommendations on, inter alia, “hate speech” and on the media and the promotion of a
culture of tolerance. In addition, it seeks a periodical evaluation of the implementation of
Article 7, European Convention on Transfrontier Television, by Member States, particularly
as regards the “responsibilities of broadcasters with regard to the content and presentation of
their programme services”. Finally, it provides for an examination – “as appropriate” – of the
“advisability of preparing in addition other binding or non-binding instruments”.
112
Synopsis
105
The political texts adopted at the 1
st
Council of Europe Conference of Ministers Responsible for Media and
New Communication Services, A new notion of media?, pay minimal attention to hate speech.
106
Thessaloniki, 11-12 December 1997: The Information Society: a challenge for Europe.
107
Para. 9. See also, para. 19(i), where these points are reiterated in very similar language.
108
Para. 8(i).
109
Para. 8(ii).
110
Para. 8(iii).
111
Para. 8(iii).
112
All of the citations in this paragraph are from: Action Plan for the promotion of freedom of expression and
information at the pan-European level within the framework of the Information Society, 5
th
European
Ministerial Conference on Mass Media Policy Section F. See also, for related issues, Section E.
25
The foregoing survey of the main components of the Council of Europe’s overall approach to
hate speech provides summary details of various treaty-based and institutional standard-
setting and monitoring initiatives. Relevant treaties legally bind their States Parties, but
instruments and practices that are not legally binding should not be dismissed as unimportant.
They can be politically persuasive and may influence legal approaches. For example, the
European Court of Human Rights often refers to standard-setting work developed by the
Committee of Ministers and ECRI.
113
The added value of standard-setting texts lies in their
ability: (i) to engage with specific themes in a more detailed and expansive way than is
usually possible when an adjudicatory body deals with the specifics of a given case, and (ii)
to take into account and reflect current State practice and anticipate future developments. For
their part, monitoring mechanisms can usefully complement legal measures by enabling the
collation and evaluation of a range of different (and often creative) measures to deal with the
range of different types of expression covered by the term, hate speech.
The foregoing survey also reveals great diversity in the Council of Europe’s approaches to
hate speech. They contain various focuses on Internet-specific questions relating to hate
speech and its regulation which will become increasingly prominent and pressing in the
coming years. These points will be developed in the next Section.
113
For example, the Committee of Ministers’ Recommendation No. R (97)20 on “hate speech” is cited in the
European Court of Human Rights’ judgments in Gündüz v. Turkey of 4 December 2003 (para. 22) and Féret v.
Belgium of 16 July 2009 (paras. 44 and 72).
26
SECTION II: Online hate speech
1. New and pressing issues
In recent years, due mainly to the advent and relentless growth of the internet, the media have
been undergoing profound changes; they are generally becoming increasingly instantaneous,
international and interactive.
114
In tandem, ideas, information and content of all kinds are
generally becoming more abundant, accessible and amplified to wider sections of society. As
a result of these changes, the current media offering is more plentiful and varied than it has
been at any point in history. These developments have prompted observations that internet
content is “as diverse as human thought”.
115
There is now a greater range of media at our
disposal than ever before, offering wider and more diversified functionalities/capabilities and
greater differentiation in types of access, participation and output.
These advances in information and communications technologies can clearly have far-
reaching consequences for how hate speech is disseminated and processed. The internet holds
unprecedented potential for multi-directional communicative activity: unlike traditional
media, it entails relatively low entry barriers. Whereas in the past it was necessary to
negotiate one’s way through the institutionalised media in order to get one’s message to the
masses, this is no longer the case. There is reduced dependence on traditional points of
mediation and anyone can, in principle, set up a website or communicate via social media.
Messages therefore can - and do - spread like wildfire across the globe. Often, all that is
needed for a message to “go viral” is a combination of strategy and happenstance. While
there are no guarantees that an individual’s message will actually reach vast international
audiences, the capacity to communicate on such a scale clearly does now exist for an ever-
expanding section of the population. This capacity has obvious benefits for the
democratisation of society and public discourse, but at the same time, it also facilitates the
growth of “low level digital speech”.
116
The accessibility and effectiveness of the internet as a medium of communication is largely
due to the ease, speed and versatility with which expression can be disseminated online. It is
increasingly
117
being used for spreading hate speech in different ways and contexts, including:
- dissemination of propaganda, other types of (mis-)information, conspiracy theories
and hate spam;
- exchange of information and ideas, e.g. via social media networks, discussion groups,
listservs and communities of interest;
- search engine optimisation techniques, such as hyperlinking strategies designed to
generate better search results;
114
See generally, Karol Jakubowicz, A New Notion of Media? Media and Media-Like Content and Activities on
New Communications Services (Strasbourg, Council of Europe, 2009).
115
ACLU v. Reno, 929 F. Supp. 824 (11 June 1996), 842, para. 74.
116
For an exploration of this notion and the level of legal protection it should be afforded, see: Jacob
Rowbottom, “To rant, vent and converse: protecting low level digital speech”, Cambridge Law Journal 2012,
71(2), 355-383.
117
Empirical studies of the growing online presence of hate speech are surveyed inter alia in: Barbara Perry and
Patrik Olsson, “Cyberhate: The Globalization of Hate”, 18(2) Information & Communications Technology Law
(2009), 185-199; James Banks, “Regulating Hate Speech Online”, 24(3) International Review of Law,
Computers & Technology (2010), 233-239; Yaman Akdeniz, Racism on the Internet (Strasbourg, Council of
Europe Publishing, 2009). Organizations active in the monitoring of online hate speech include the Simon
Wiesenthal Center (<www.wiesenthal.com>) and the Anti-Defamation League (<www.adl.org>).
27
- attracting inadvertent users by “usurping domain names” and “using misleading meta-
tags”;
118
- organisational purposes such as the coordination of activities, planning of events,
training, recruitment drives;
- commercial ends such as fund-raising, the sale of publications, videos, memorabilia
and paraphernalia;
- trolling and other such disruptive practices;
- pursuit of various offences against the person and other criminal or invasive
behaviour, e.g. the targeting of (potential) victims, cyber-bullying, cyber-stalking.
From a regulatory perspective, new technological possibilities and how they are exploited in
practice present a number of complicating factors. The first cluster of factors can be grouped
around liability and jurisdictional issues and the second cluster comprises factors affecting
victims of hate speech. After considering these two clusters of factors, attention will turn to
responses and remedies and implications for the future.
1.1 Liability and jurisdictional issues
Owing to the virtual, globalized and decentralized features of the architecture of the internet,
online hate-mongers enjoy a high degree of mobility. These technological features allow such
hate-mongers to offer content via Internet Service Providers (ISPs) based in a jurisdiction of
their choice. This is clearly relevant for the struggle against online hate speech because
national laws can vary quite considerably in the extent to which they tolerate hate speech. In
the United States, for instance, the free speech tradition cultivated by a robustly-worded First
Amendment, has resulted in a very strong presumption of constitutional protection for hate
speech.
119
It is common practice for hate websites to be hosted in jurisdictions that are considered to be
favourable to, or tolerant of, hate speech. The practice of strategically choosing favourable
jurisdictions in which to host a site is sometimes called forum-shopping. It leads to regulatory
circumvention and attempts to evade legal liability for hateful content. Similarly, it is also
common practice for hate websites that have been either blocked or banned in one
jurisdiction to subsequently relocate to another, more favourable, jurisdiction.
120
The ease
with which hate websites can relocate in this manner means that blocking or banning cannot
be regarded as effective measures against, or remedies for, such sites.
Whereas different jurisdictions have different laws governing hate speech, different ISPs
within a given jurisdiction may well have different policies on hate speech too. Some ISPs’
118
Elizabeth Phillips Marsh, “Purveyors of Hate on the Internet: Are We Ready for Hate Spam?”, 17 Georgia
State University Law Review (2000), 379-407, at 391.
119
The First Amendment to the US Constitution reads: “Congress shall make no law [...] abridging the freedom
of speech, or of the press [...]”. For overviews and analysis of relevant First Amendment jurisprudence, see:
Anthony Lewis, Freedom for the Thought That We Hate: A Biography of the First Amendment (New York,
Basic Books, 2007); James Weinstein, “An Overview of American Free Speech Doctrine and its Application to
Extreme Speech”, in Ivan Hare and James Weinstein, Eds., Extreme Speech and Democracy, op. cit., pp. 81-91;
and Steven J. Heyman, “Hate Speech, Public Discourse, and the First Amendment”, in ibid., pp. 158-181.
120
An example is the website of Holocaust denier, Ernst Zündel. For background and analysis, see: Yaman
Akdeniz, “Stocktaking on Efforts to Combat Racism on the Internet”, Background Paper for the High Level
Seminar of the Intergovernmental Working Group on the Effective Implementation of the Durban Declaration
and Programme of Action, Fourth Session (16-27 January 2006), United Nations Commission on Human Rights
Doc. No. E/CN.4/2006/WG.21/BP.1, 9 January 2006, 16-18.
28
terms of service/use contracts, community guidelines and notice-and-take-down policies are
more detailed and/or stringent as regards hate speech than others.
However, the implementation of those policies is not always transparent. Relevant actors are
typically private actors and consequently, their involvement in content regulation could
potentially be seen as private censorship. In its Transparency Report, Google seeks to address
this concern.
121
It explains: “Like other technology and communications companies, Google
regularly receives requests from government agencies and courts around the world to remove
content from our services or to review such content to determine if it should be removed for
inconsistency with a product's community policies”. The Report purports to “disclose the
number of requests we receive from each government in six-month periods with certain
limitations.”
The Report documents Internet traffic disruption to Google products and services in countries
across the world, typically due to State intervention to block particular sites. It also provides
statistical information about governments’ requests to remove content, distinguishing
between requests pursuant to (i) court orders, and (ii) executive, police, etc. It categorises the
types of content at issue in these requests and it is interesting to note that since July 2010,
hate speech has accounted for 0% of the total number of requests pursuant to court orders and
only 2% of the total requests made by executive or police. Exactly the same statistics apply to
the adjacent category of religious offence. While the Report does offer a measure of
transparency, it remains at the level of macro-statistics. It offers no real insights into how
requests for removal concerning alleged hate speech are dealt with in terms of substantive
internal review.
Determining legal liability for hate speech online is not only complicated from a
jurisdictional perspective. Technological considerations also cause a number of complications
in practice. Potentially, a multiplicity of different actors could be involved in the creation and
dissemination of hateful content: creating or sourcing it; publishing it; developing it; hosting
it or otherwise facilitating its dissemination, accessibility or retrievability. Liability could
attach to each of the implicated actors in different ways, depending on the nature of the
communication; the scope and details of relevant national laws, and other “contextual
variables”.
122
Different actors have different relationships with content; degrees of editorial
control could prove determinative of the extent of liability incurred for user-generated content
(UGC), for example. To what extent can a newspaper be held liable for racist comments
posted by readers on its online discussion forum?
123
Can Twitter be held liable for racist
tweets? Or YouTube for racist videos? Or Facebook for racist pages? Or, perhaps more
controversially, Google for racist search results?
124
These questions are enormous and
enormously complicated and as such, it is beyond the scope of this background paper to offer
a fuller exploration of their intricacies. What can be stated in general terms, however, is that
relevant legal distinctions could be made between different types of UGC because of
differing levels of editorial involvement/control and responsibility/liability:
121
Google Transparency Report: http://www.google.com/transparencyreport/removals/government/.
122
Michel Rosenfeld, “Hate Speech in Constitutional Jurisprudence: A Comparative Analysis”, op. cit., at 1565.
123
See generally in this connection: Karmen Erjavec & Melita Poler Kovacic (2012) “You Don’t Understand,
This is a New War!” Analysis of Hate Speech in News Web Sites’ Comments, Mass Communication and
Society, 15: 6, 899-920; Matthew W. Hughey & Jessie Daniels, “Racist comments at online news sites: a
methodological dilemma for discourse analysis” (2013) Media, Culture and Society 35(3) 332-347.
124
See further in this connection: Arwa Mahdawi, “Can Googling be racist?”, The Guardian, 5 February 2013,
available at: http://www.guardian.co.uk/commentisfree/2013/feb/05/can-googling-be-racist?INTCMP=SRCH.
29
A. UGC that is prepared by users and then incorporated into otherwise professionally-
produced and editorially-controlled content;
B. UGC that has a stand-alone character, i.e., UGC that exists alongside professionally-
produced and editorially-controlled content;
C. UGC that is the product of co-creation by media professionals and users.
D. UGC that is created via and maintained on purpose-built fora and networks and is not
incorporated into professional media content.
125
Another problematic aspect of liability and jurisdictional issues concerns prosecution
vagaries. Episodic or unsuccessful prosecutions have little deterrence value as they give rise
to claims that relevant laws are paper tigers or toothless bulldogs. Conversely, however,
overzealous prosecution can have serious chilling effects on freedom of expression and
public debate. The tendency of “hate speech” laws to be formulated in terms that are over-
broad, has long been a concern of some civil rights organizations and academic
commentators. Vague and overbroad statutes can, for instance, be abused in order to stifle
hard-edged political criticism. Prosecutions for hate speech can also help perpetrators who
are motivated by ideological or activist goals to cultivate an image of free-speech martyrdom
or victimhood.
126
1.2 Victims’ perspectives
As already mentioned in the introduction to this paper, it is important to be aware of the
differentiation inherent in the term hate speech when assessing the harms it occasions and
when calibrating relevant regulatory and other responses. Harms caused by hate speech and
the resultant suffering of victims can be intensified by circumstances that are born out of
technological capabilities or consequences. Thus, the relative ease of maintaining anonymity
in an online environment
127
can contribute to an exacerbation of the emotional or
psychological harm inflicted on victims of hate speech. For instance, when the true identities
of those responsible for cyber-bullying, or hateful messages disseminated by mobile phone
texts or via social networks, are cloaked in anonymity or pseudonymity, the very suspicion
that those persons may live nearby the victim, or frequent the same social, educational or
professional circles, is likely to compound his/her distress. Similarly, when messages of hate
are circulated via social networking services, the actual amplification of those messages,
coupled with a perception that their dissemination is uncontrollable, can also increase victims’
distress levels. So, too, can the apparent social validity or authority conferred on such
messages by the large numbers of likes, mentions, favourites, friends or followers they may
attract.
The potential permanency of content made available online is also a relevant consideration
when quantifying the nature and extent of the harms caused by racist hate speech. Online
manifestations of hate speech are generally more refractory than their traditional, offline
125
Tarlach McGonagle, “User-generated Content and Audiovisual News: The Ups and Downs of an Uncertain
Relationship”, in Susanne Nikoltchev, Ed., Open Journalism, IRIS plus 2013-2 (Strasbourg, European
Audiovisual Observatory), pp. 7-25, at p. 10.
126
Jogchum Vrielink, Van haat gesproken?, op. cit., ‘ Deel’ (Section) IV (generally). See also, more generally:
Joost van Spanje & Claes de Vreese, “The good, the bad and the voter: The impact of hate speech prosecution
on electoral support for his party” 2013 Party Politics 1-16.
127
See generally on this topic: Margot Kaminski, “Real Masks and Real Name Policies: Applying Anti-Mask
Case Law to Anonymous Online Speech”, 23 Fordham Intell. Prop. Media & Ent. L.J. 815-896.
30
equivalents. This has given rise to the term, “cyber-cesspools”,
128
which conjures up the
image of putrid, stagnant pools that pose a danger to public health. The durability of online
content, facilitated in the first place by an absence of storage limitations, is also assured by
hyperlinking and online searchability. Content remains traceable and largely retrievable after
its original dissemination to an unprecedented extent when that dissemination takes place
online, even when the original content has been cached. This means that there is a danger that
victims of hate speech will continuously, or at least repeatedly, be confronted by the same
instances of hate speech after their original articulation. Leading critical race theorists have
argued cogently that the “incessant and compounding” aspects of hate speech exacerbate its
impact.
129
If multi- or cross-posting or extensive hyperlinking has taken place, the removal of
particular material from a particular online source cannot guarantee the unavailability of the
same material elsewhere, thus strengthening its “incessant and compounding” aspects.
Besides making content more difficult to remove, hyperlinking can also affect search results,
due to the technical design of algorithms like ‘Page Rank’, which is influenced by linking
practices.
130
Thus, search engine optimisation strategies could increase search results for
particular types of content, including (particular instances of) hate speech. Hyperlinks can
also acquire or indicate “social significance” insofar as they seek to associate with or distance
themselves from other sites or content.
131
They can also be indicators of authority,
132
or
popularity. Hyperlinking is done for a purpose, or for a variety of purposes,
133
but there “is no
guarantee that indication of the author’s intentions can be found in the link itself, or in the
linked resource”.
134
Ambiguity surrounding the intent behind hyperlinking can give rise to
questions of morality or liability. In the context of journalism, for instance, “hypertextuality
is [often
135
] associated with positive journalistic values such as interactivity, transparency,
credibility or diversity,”
136
but if a hyperlink is created to prohibited instances of hate speech,
thereby facilitating access to or the retrievability of the latter, liability could be incurred.
137
1.3 Responses and remedies
Again, due to the inherent differentiation in racist hate speech, a variety of regulatory
measures, including criminal law provisions, are typically employed to combat online hate
speech. However, besides regulatory measures, a range of alternative and additional
approaches can also be suited to the specifics of different types of racist hate speech in an
online setting. Such measures include: “the option of doing nothing, social norms, self-
regulation, co-regulation, and technical means, information, education and awareness
128
Brian Leiter, “Cleaning Cyber-Cesspools: Google and Free Speech”, in Saul Levmore and Martha C.
Nussbaum, Eds., The Offensive Internet: Speech, Privacy, and Reputation (Cambridge, Massachusetts and
London, Harvard University Press, 2010), pp. 155-173.
129
Richard Delgado and Jean Stefancic, “Four Observations about Hate Speech”, op. cit., at 367-368.
130
Juliette De Maeyer, “Towards a hyperlinked society: A critical review of link studies”, New Media & Society,
2012, 1-15, at 4.
131
Ibid., p. 3.
132
Ibid.
133
David Weinberger, “The Morality of Links”, in Joseph Turow and Lokman Tsui, Eds., The Hyperlinked
Society: Questioning Connections in the Digital Age (Ann Arbor, MI, Michigan University Press), pp. 181-190,
at 184.
134
Juliette De Maeyer, “Towards a hyperlinked society: A critical review of link studies”, op. cit., p. 9.
135
Inserted by the present author.
136
Ibid., p. 7.
137
UEJF, LICRA v. Yahoo!, Inc., Tribunal de Grande Instance, Paris, 20 November 2000.
31
campaigns”.
138
They can offer a number of advantages; for instance, they can be “less costly,
more flexible and quicker to adopt than prescriptive government legislation”.
139
However,
neither regulatory measures nor any of the other measures discussed are without their
shortcomings.
Against a background of scepticism regarding the effectiveness of non-regulatory measures
for combating online racist hate speech, it is useful to flag a few examples of good practices.
Various instances of fruitful collaboration between civil society interest groups and
individual ISPs or content providers in combating hate speech have been documented.
140
Typically, such collaborative initiatives involve the former seeking to promote greater social
responsibility on the part of the latter, by promoting (awareness of) reporting mechanisms for
illegal material offered (by third parties) on their services. Another example of good practice
is the International Association of Internet Hotlines (INHOPE),
141
which provides an
extremely important service by enabling members of the public to anonymously report online
content that they suspect to be illegal (especially child sexual abuse material, but also illegal
types of hate speech). INHOPE hotlines “ensure that the matter is investigated and if found to
be illegal the information will be passed to the relevant Law Enforcement Agency and in
many cases the Internet Service Provider hosting the content”.
142
Notwithstanding these
examples of good practices for combating online racist hate speech, there remain general
problems of transparency, consistency and enforceability concerning self- and co-regulatory
mechanisms and processes governing ISPs.
The suitability of counter-speech, or more specifically, intergroup communication, strategies
for combating hate speech is often stressed.
143
The effectiveness of counter-speech as a
remedy for racist hate speech in an online environment is perhaps less self-evident than it is
in the physical world. As a result of vastly enhanced communicative opportunities enabling
individuals to connect with multitudes of other individuals, it seems plausible that changing
patterns of individual, intra-group and intergroup communication will become discernible
between off- and online variants. These developments prompt a need for fresh reflection on
the effectiveness of continued normative reliance on the empowering and identity-sustaining
properties of freedom of expression in an online environment.
138
Yaman Akdeniz, “Introduction”, in Legal Instruments for Combating Racism on the Internet, Report
prepared and updated by the Swiss Institute of Comparative Law, Lausanne (Strasbourg, Council of Europe
Publishing, 2009), pp. 7-37, at 28; Yaman Akdeniz, “Governance of Hate Speech on the Internet in Europe”, in
Christian Möller and Arnaud Amouroux, Eds., Governing the Internet: Freedom and Regulation in the OSCE
Region (Vienna, OSCE Representative on Freedom of the Media, 2007), pp. 91-117, at 108. For a more detailed
discussion of these measures, see: Yaman Akdeniz, “Governing Racist Content on the Internet: National and
International Responses”, 56 University of New Brunswick Law Journal (2007), 103-161, at 140-158; Yaman
Akdeniz, Racism on the Internet, op. cit., pp. 111-134.
139
Ibid.
140
For examples and analysis, see: Jessica S. Henry, “Beyond Free Speech: Novel Approaches to Hate on the
Internet in the United States”, 18(2) Information and Communications Technology Law (2009), 235-251. For an
exploration of what more might be done in this regard, see: Brian Leiter, “Cleaning Cyber-Cesspools: Google
and Free Speech”, op. cit., at 169-172.
141
Official website available at <www.inhope.org>.
142
Ibid.
143
For a rich theoretical exposition of counter speech and the question of its suitability as a remedy for hate
speech, see: Katharine Gelber, Speaking Back: The Free Speech Versus Hate Speech Debate
(Amsterdam/Philadelphia, John Benjamins Publishing Company, 2002), and Katharine Gelber,
“Reconceptualizing Counterspeech in Hate Speech Policy (with a Focus on Australia)”, in Michael Herz &
Peter Molnar, Eds., Content and Context: Rethinking Regulation and Remedies for Hate Speech, op. cit., pp.
198-216.
32
It may, at first glance, seem paradoxical to suggest that counter-speech is likely to be less
effective in an environment of informational abundance. Yet that abundance includes an
abundance of hate speech, the pervasiveness and permanence of which is assured by the
internet’s archiving, hyperlinking and searching capabilities.
144
Whether overall
informational abundance will drown out the abundance of hate speech, or dilute its impact, is
too broad a question to answer in abstracto.
Another relevant consideration is that enhanced individual selection and filtering capacities
allow individuals to choose (or “pull”) their own content instead of having particular content
“pushed” towards them by general intermediaries, as the institutionalized media have
traditionally done. These capacities increase the ability of individuals to avoid exposure to
particular types of content. The broader consequence of this is that they also reduce the
chances of conflicting opinions meeting each other head-on in an online environment.
145
Such individual selection and filtering capacities can affect communicative practices at a
societal level in different ways. Growing reliance on these capacities can lead to the creation
of a multitude of “public sphericules” instead of a unified public sphere
146
and lead to the
proliferation of communities of interest in which ideological insulation and intensification
take place. The online forums in which particular types of information and especially
viewpoints are reinforced by their amplification have been described as “online echo
chambers”.
147
As a result of these informational and communicative trends, the likelihood of intergroup
engagement and interaction in cyberspace cannot simply be assumed; its potential is
significantly reduced, compared with the offline, real-world context. Granted, “alternative
(mini-) spheres”
148
can prove vitally important for intragroup communication, for purveyors
of hate and minority groups alike. Some empirical research even suggests that deliberation in
online echo chambers does not necessarily/always lead to more entrenched/extreme positions
and that intra-group deliberation can benefit inter-group deliberation.
149
Nevertheless, in
order for more speech or counter-speech strategies to have any prospect of fostering tolerance,
there must be, as a minimum, communicative intent and actual communicative contact.
The failure of internet-based expression to achieve linkage to “the general public domain”
150
could lead to communication being predominantly spatial and insufficiently social. Online
hate speech has real-life consequences, as explained above,
151
so it is crucial for online
counter-speech to also realize its potential for offline effects. The promotion of targeted
educational, media literacy (generally understood as “the ability to access, analyze, evaluate,
144
Elizabeth Phillips Marsh, “Purveyors of Hate on the Internet: Are We Ready for Hate Spam?”, op. cit., at 391.
145
For a general discussion of selection and filtering issues concerning the Internet, see: Jonathan Zittrain, “A
History of Online Gatekeeping”, 19(2) Harvard Journal of Law and Technology (2006), 253-298.
146
See further: Todd Gitlin, “Public Sphere or Public Sphericules?”, in Tamar Liebes and James Curran, Eds.,
Media, Ritual, Identity (London, Routledge, 1998), pp. 168-175.
147
See further, Cass R. Sunstein, Republic.com 2.0 (Princeton NJ, Princeton University Press, 2007).
148
Donald R. Browne, Ethnic Minorities, Electronic Media and the Public Sphere: A Comparative Approach
(Cresskill, New Jersey, Hampton Press, Inc., 2005), p. 11. For a broad discussion of relevant issues, see: John
Downing and Charles Husband, Representing ‘Race’: Racisms, Ethnicities and Media (London, SAGE
Publications, 2005), esp. Chapter 9, “The Multi-Ethnic Public Sphere and Differentiated Citizenship”.
149
See, for example: Cass R. Sunstein, “Ideological Amplification”, 14(2) Constellations (2007), 273-279; Cass
R. Sunstein, Why Groups Go to Extremes (Washington, D.C., The AEI Press, 2008).
150
Myria Georgiou and Eugenia Siapera, “Introduction: Revising multiculturalism”, 2(3) International Journal
of Media and Cultural Politics (2006), 243-247, at 246.
151
See further, Alexander Tsesis, “Hate in Cyberspace: Regulating Hate Speech on the Internet”, 38 San Diego
Law Review (2001), 817-874, at 836 et seq.
33
and create messages in a variety of forms”
152
) and journalistic training initiatives could all
help to create such linkage in practice.
153
Moreover, as David Heyd has astutely pointed out, “education to toleration requires the
development of open-mindedness, critical scepticism, the power of deliberation, and the
willingness to change one’s attitude”.
154
This resonates very loudly with the view that
democratic society cannot exist unless it is underpinned by “pluralism, tolerance and
broadmindedness”.
155
By circulating information and ideas throughout society and by
providing forums for dialogical interaction, the media can certainly serve these goals,
including in an online environment. However, relevant policies and strategies will have to be
carefully tailored to the specificities of the online context.
156
1.4 Implications for the future
As already noted, successive waves of technological developments, especially and most
recently, the advent of the internet, have profoundly altered informational and communicative
realities throughout the world. Those changes were not only unforeseen when leading
international and European human rights treaties were being drafted, they were probably also
unforeseeable. Consequently, prior understandings of the scope of the right to freedom of
expression require urgent updating, adaptation and expansion in order to take account of, and
accurately reflect, the complexities of the new communicative dispensation and their impact
on the realization of the right to freedom of expression and other rights in practice. This
exercise will require the institutional guardians of the right to freedom of expression to
demonstrate a keen appreciation of the substance and scope of the right, as well as its
potential for continued development.
2. The Council of Europe and online hate speech
The particular importance of the media for democratic society has been stressed repeatedly
by the Court. To date, the European Court of Human Rights has engaged meaningfully with
the Internet generally
157
and the specific features of the online communications environment
152
Sonia Livingstone, “Media Literacy and the Challenge of New Information and Communication
Technologies”, 7 The Communication Review (No. 1, 2004), pp. 3-14, at p. 5.
153
The OSCE Representative on Freedom of the Media recently made a recommendation to this effect: “Media
literacy programs, including technical and content Internet literacy, shall be supported and promoted and
educational programs and training materials for young people about countering hate speech should be
developed.”Recommendation No. 7, Shaping policies to advance media freedom: OSCE Representative on
Freedom of the Media Recommendations from the Internet 2013 Conference, available at:
http://www.osce.org/fom/100112.
154
David Heyd, “Education to Tolerance: Some Philosophical Obstacles and their Resolution”, in Catriona
McKinnon and Dario Castiglione, Eds., The Culture of Toleration in Diverse Societies: Reasonable Tolerance
(Manchester and New York, Manchester University Press, 2003), pp. 196-207, at 204.
155
Handyside v. the United Kingdom, op. cit., para. 49.
156
See further in this connection: Ulla Carlsson & Sherri Hope Culver, Eds., Media and Information Literacy
and Intercultural Dialogue, MILID Yearbook 2013 (Gothernburg, Nordicom, 2013), available at:
http://www.nordicom.gu.se/clearinghouse.php?portal=publ&main=info_publ2.php&ex=379&me=3.
157
Therese Murphy and Gearoid Ó Cuinn, “Works in Progress: New Technologies and the European Court of
Human Rights”, 10(4) Human Rights Law Review (2010), pp. 601-638, at 636; European Court of Human
Rights (Research Division), Internet: case-law of the European Court of Human Rights (Strasbourg, Council of
Europe, 2011); European Court of Human Rights (Press Unit), Fact sheet – New technologies (Strasbourg,
Council of Europe, July 2013).
34
in particular in a surprisingly limited number of cases.
158
In its Ahmet Yildirim v. Turkey
judgment of 18 December 2012, the Court finally recognised in a very forthright way the
importance of the Internet in the contemporary communications landscape:
The Internet has become one of the principal means for individuals to exercise
their right to freedom of expression today: it offers essential tools for
participation in activities and debates relating to questions of politics or public
interest.
159
This recognition clearly places great store by the participatory dimension of free expression.
It also recognises the specific functionalities of the Internet – as a medium – that enable it to
enhance public debate in democratic society. In doing so, the Court follows the trend in its
established case-law of acknowledging the specific features of the (print and) audiovisual
media that enable them to facilitate democratic deliberation and foster public debate.
In its burgeoning case-law on Internet-related issues, the Court has focused on, inter alia, the
duty of care of ISPs,
160
the added value of online newspaper archives for news purposes
161
and interestingly, the challenges of sifting through the informational abundance offered by
the Internet.
162
These developments are tentative in the Court’s case-law, but more advanced in other
standard-setting activities. While not legally binding, such standard-setting work, notably by
the Committee of Ministers
163
and Parliamentary Assembly,
164
is politically persuasive.
165
Nevertheless, the standard-setting texts focusing on freedom of expression online, pay only
scant attention to online hate speech. As already noted, In the political texts adopted at the 1
st
Council of Europe Conference of Ministers Responsible for Media and New Communication
Services, A new notion of media?,
166
there was minimal attention for hate speech. This is
difficult to explain, given that: (i) there is a real resurgence of “hate speech” in a new media
context, which poses considerable regulatory challenges, and (ii) the purpose of the
158
Dirk Voorhoof, “Het Europese ‘First Amendment’ - De Straatsburgse jurisprudentie over artikel 10 EVRM:
2004-2009 (deel 2)”, Mediaforum 2010-6, pp. 186-201, at pp. 195-196; Tarlach McGonagle & Kim de Beer, “A
brave new media world revisited. Een nog kritischer blik op het nieuwe mediabeleid van de Raad van Europa”,
24 Mediaforum 2012-11/12, pp. 338-345; Tarlach McGonagle, ‘User-generated Content and Audiovisual News:
The Ups and Downs of an Uncertain Relationship’, op. cit., pp. 7-25; Nina Vajic & Panayotis Voyatzis, “The
internet and freedom of expression: a ‘brave new world’ and the ECtHR’s evolving case-law”, in Josep
Casadevall, Egbert Myjer, Michael O’Boyle & Anna Austin, Eds., Freedom of Expression: Essays in honour of
Nicolas Bratza, op. cit., pp. 391-407.
159
Judgment of the European Court of Human Rights of 18 December 2012, para. 54.
160
K.U. v. Finland, Judgment of the European Court of Human Rights of 2 December 2008, para. 49.
161
Times Newspapers Ltd. (nos. 1 & 2) v. the United Kingdom, Judgment of the European Court of Human
Rights of 10 March 2009, para. 45.
162
Editorial Board of Pravoye Delo & Shtekel v. Ukraine, Judgment of the European Court of Human Rights of
5 May 2011, para. 63.
163
Susanne Nikoltchev & Tarlach McGonagle, Eds., Freedom of Expression and the Media: Standard-setting by
the Council of Europe, (I) Committee of Ministers - IRIS Themes (Strasbourg, European Audiovisual
Observatory, 2011).
164
Susanne Nikoltchev & Tarlach McGonagle, Eds., Freedom of Expression and the Media: Standard-setting by
the Council of Europe, (II) Parliamentary Assembly - IRIS Themes (Strasbourg, European Audiovisual
Observatory, 2011).
165
Tarlach McGonagle & Kim de Beer, “A brave new media world? Een kritische blik op het nieuwe
mediabeleid van de Raad van Europa”, 22 Mediaforum 2010-5, pp. 146-156.
166
The 1
st
Council of Europe Conference of Ministers Responsible for Media and New Communication Services,
Reykjavik, 28-29 May 2009.
35
Conference was to map out priorities in European media policy to be addressed by the
Council of Europe in the coming years. In the normative roll-out from the Ministerial
Conference, some of the most relevant texts adopted by the Committee of Ministers
contained few, if any, specific/significant provisions on online hate speech:
Recommendation on a new notion of media (one provision/paragraph);
167
Recommendation on the protection of human rights with regard to search engines (no
reference);
168
Recommendation on the protection of human rights with regard to social networking
services (no reference).
169
In light of this under-integration of the Council of Europe’s general principles and experience
in combating hate speech in its recent incursions into the protection of freedom of expression
in an online environment, it is imperative that systematic attention be paid to logical
connections and synergies in the future. A first step in this direction would involve a
rearguard action identifying already-existing points of connection and synergy and an
exploration of the scope for analogous application of principles of media freedom to other
actors in the online communications environment.
Conclusions and recommendations
1. Repurpose the Committee of Ministers’ Recommendations (97) 20 and 21 for optimal
application in the online environment;
2. Foreground online hate speech in the Council of Europe’s standard-setting work;
3. Provide guidance on the calibration of rights, duties and responsibilities in the digital
age, in particular regarding online hate speech;
4. Enhance capacity-building and awareness-raising;
5. Crowd-source and collaborate in the search for solutions;
6. Develop and effectively promote an ‘Anti-Hate Speech Pledge’ for politicians and
political parties.
1. Repurpose the Committee of Ministers’ Recommendations (97) 20 and 21 for optimal
application in the online environment
167
Recommendation CM/Rec(2011)7 of the Committee of Ministers to member states on a new notion of media,
21 September 2011. The only specific provision is para. 91: “Media should refrain from conveying hate speech
and other content that incites violence or discrimination for whatever reason. Special attention is needed on the
part of actors operating collective online shared spaces which are designed to facilitate interactive mass
communication (or mass communication in aggregate). They should be attentive to the use of, and editorial
response to, expressions motivated by racist, xenophobic, anti-Semitic, misogynist, sexist (including as regards
LGBT people) or other bias. Actors in the new media ecosystem may be required (by law) to report to the
competent authorities criminal threats of violence based on racial, ethnic, religious, gender or other grounds that
come to their attention”.
168
Recommendation CM/Rec(2012)3 of the Committee of Ministers to member States on the protection of
human rights with regard to search engines, 4 April 2012. Hate speech is not even mentioned in the section
entitled, ‘Human rights and fundamental freedoms can be threatened by the operation of search engines’.
169
Recommendation CM/Rec(2012)4 of the Committee of Ministers to member States on the protection of
human rights with regard to social networking services, 4 April 2012. Hate speech is not even mentioned in the
section entitled, ‘Human rights may be threatened on social networks’.
36
The importance of the Committee of Ministers’ Recommendation on “hate speech” has
already been underscored. Its continued across-the-board relevance in the Council of
Europe’s overall approach to hate speech will depend partly on its ability to effectively
address the growing number of questions relating specifically to online hate speech. A
number of years ago, the Committee of Ministers turned down a request by the
Parliamentary Assembly “to revise its Recommendation No. R (97) 20 on ‘hate speech’
or to prepare guidelines taking into account new developments on this subject, notably as
regards the European Court of Human Rights’ case-law”.
170
The 5
th
Ministerial Conference on Mass Media Policy called for States to implement the
principles set out in the twin Recommendations and to ensure that measures targeting hate
speech disseminated through new information and communications services duly respect
freedom of expression. This is consistent with Principle 2 of Recommendation No. R (97)
20, which calls on States, inter alia, to “review the existing legal framework in order to
ensure that it applies in an adequate manner to the various new media and
communications services and networks”.
The ECHR is a living instrument and it aims to ensure that rights are not just theoretical
or illusory, but practical and effective. It is also concerned with ensuring that effective
remedies are available whenever human rights are violated. Other Council of Europe
instruments, whatever their legal or political status, share these aims and concerns. It is
therefore imperative that relevant standards – in particular Recommendations (97) 20 and
21 - be repurposed for optimal application in the reconfigured communications
environment.
2. Foreground online hate speech in the Council of Europe’s standard-setting work
The repurposing exercise could be initiated by a study identifying key conundrums and
challenges that arise specifically in the context of online hate speech. A scoping exercise
could follow, which would meticulously map the identified issues with relevant Council
of Europe standard-setting and monitoring work and explore in detailed fashion how
existing texts and initiatives could meaningfully address those issues. All of this could
feed into a concerted foregrounding of key issues into relevant standard-setting work by
the Council of Europe’s various organs.
3. Provide guidance on the calibration of rights, duties and responsibilities in the digital
age, in particular regarding online hate speech
Recommendations (97) 20 and 21 are solidly grounded in key principles of the European
Court of Human Rights for safeguarding freedom of expression, while resolutely tackling
hate speech. Those principles are nuanced and plead for differentiated responses. It is
imperative in this connection that rights, duties and responsibilities of all relevant actors
are not conflated; the relationship between rights, on the one hand, and the duties and
responsibilities that accompany the exercise of those rights, on the other hand, are
properly calibrated. Promotional measures, rather than restrictive ones, are often best
suited to sensitising actors to their duties and responsibilities.
170
See: Parliamentary Assembly of the Council of Europe, Recommendation 1814 (2007) Towards
decriminalisation of defamation, 4 October 2007, para. 3, and the Reply by the Committee of Ministers, Doc.
11640, 11 June 2008, para. 5.
37
4. Enhance capacity-building and awareness-raising
The Council of Europe should seize its current anti-hate speech momentum and take it to
new levels. Over the years, its various treaties and bodies have played a very valuable
role in fostering inter-cultural dialogue and understanding. Renewed efforts are required
to consolidate past achievements and strengthen focuses on the online environment, eg.
through the further development of the No Hate Speech Movement, Living Together
Online, etc. Investment in capacity-building measures for a variety of actors and
awareness-raising targeting all sections of society should therefore be increased.
5. Crowd-source and collaborate in the search for solutions
These suggested measures necessarily have to be conducted in collaboration with a wide
range of stakeholders from all sections of society. States authorities should participate in a
stock-taking and evaluation exercise focusing on whether their national (legal) systems
adequately reflect and implement the principles set out in Recommendation (97) 20,
including in respect of the online environment. Such an exercise could provide valuable,
evidence-based, input for the distillation of guidance or best practices on how to
repurpose the twin Recommendations for optimal application in the online environment.
6. Develop and effectively promote an ‘Anti-Hate Speech Pledge’ for politicians and
political parties
Notwithstanding the importance of clarifying some doctrinal divergence in the case-law
of the European Court of Human Rights, the Council of Europe is ideally-placed to
compile a detailed tool-kit of concrete anti-hate speech measures/best practices that could
be adopted by political parties throughout Europe. Such measures could be gleaned from
the extensive combined expertise and experience of various Council of Europe bodies.
The compilation could be presented as a ‘Pledge’; a certain minimum number of
commitments would have to be entered into, in return for which, a party could display the
logo for the Pledge on all of its official materials. In order to ensure seriousness of
purpose and meaningful uptake, participating party leaders would be obliged to attend
annual meetings to explain and evaluate their parties’ actions to combat hate speech. A
non-roll-back clause could be included in order to ensure that annual achievements would
continuously be built on.
171
171
This suggestion is inspired by the modus operandi of the Creative Diversity Network:
http://creativediversity.com.
