“Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.” – John Milton . What is the understanding of hate speech in International law and how does that affect rights of individuals? Namratha Keshava, who is a third year law student writes about this esoteric but very relevant issue. Apart from blogging, she loves reading, debating, travelling and maps. She is extremely passionate about Human Rights and hopes to be framing policies with the United Nations someday. She is also interested in  religion and philosophy. Over to Namratha.

permanent free speech wall in VA

The freedom of speech and expression is a basic human right endowed on all individuals. It is enshrined in Article 19 of the United Declaration of Human Rights as well as the International Covenant of Civil and Political. This right finds protection in all national and international jurisdictions. Freedom of Speech is the bulwark of democracies. This is an unalienable right .It is the first condition of liberty and is also said to be the mother of all liberties. This right encompasses within its scope the freedom of propagation and exchange of ideas, dissemination of information, which would help formation of one’s opinion and view points and debates on matters of public concern. Free speech is vital to human dignity. It is the cornerstone of every democratic society, because it is an enabling right — a right that allows individuals to argue for their enjoyment of all other rights, from fair trials and free elections to decent living conditions[1].

However, one needs to understand that freedom of speech and expression is not an absolute right, it has exceptions. These exceptions refer to those situations and forms of speech where the right to freedom of speech and expression can be restrained. One of the exceptions to this right is hate speech. Hate speeches are one of the globally recognized restraints on the freedom of speech and expression.

Hate speech generally refers to forms of speech which incite hatred, violence and malice against an individual or a group of people. Hate speech is a term for speech intended to degrade person or group of people based on their race, gender, age, ethnicity, nationality, religion, sexual orientation, gender identity, disability, language ability, ideology, social class, occupation, appearance (height, weight, hair colour, etc), mental capacity, and any other distinction that might be considered by some as a liability[2]. Living in an age where opinions can be expressed in a global forum and information travels at the speed of light, it becomes imminent that we ensure that opinions and views being expressed do not threaten any group or individual.

The first international instrument to deal with hate speech was the International Convention on the Elimination Of all Forms of Racial Discrimination (CERD), adopted by the UN General Assembly in1965[3]. The CERD is the most comprehensive in dealing with hate speech. Under Article 4(a) of CERD different aspects of hate speech obligations were differentiated on the basis of dissemination of ideas based on racial superiority; dissemination of ideas based on racial hatred; incitement to racial discrimination; and incitement to acts of racially motivated violence. All three regional charters on human rights, the African Charter on Human Rights, The American Convention of Human Rights and the European Convention of Human Rights all provide the right to freedom of speech and expression but only the African Charter on Human Rights lays down a provision in Article 13(5) for banning hate speech.

The key elements of hate speech are intent, incitement and proscribed limits, which are explained below

Intent ; Article 20(2) of the ICCPR and Article13 (5) of the ACHR require advocacy of hatred, while Article 4(a) of CERD does not. The advocacy element can be understood as an intent requirement, so that only statements made with the intent of inciting hatred are covered. In the Jersild v. Denmark [4]case it was held by the European Court Of Human Rights that intent is very important while considering a case of hate speech.

Incitement; Article 7 of the UDHR, Article 20(1) of the ICCPR, Article 13(5) of the ACHR all apply only in cases where incitement exists. However there is a lot of debate as to what constitutes incitement, as there is no comprehensive international consensus as to the exact definition.

Generally courts look into causation and context of the speech to decide on whether it is a hate speech or not. These are two decisive factors most courts look into to decide on the issue of incitement.

Causation mainly refers to whether the hate speech can cause violence or incite hatred. Context helps mainly in deciding whether the circumstances in which the offensive hate material was disseminated could incite hatred or violence.

Proscribed results; Different rules call for prohibition of statements inciting different proscribed results. Article 13(5) of ACHR is limited to incitement of violence or similar illegal actions. Article 4(a) of CERD and article 20 of ICCPR cover everything like incitement to discrimination and hatred.

In the Nahimana case[5], the ICTR Defined hate speech as, “stereotyping of ethnicity combined with its denigration”.

In 2011 the Office of the United Nation High Commissioner for Human Rights conducted expert workshops all around the world with respect to hate speeches. They came up with a comprehensive plan of action called the Rabat Plan of Action. This plan of action recognized numerous challenges to this problem of hate speech. It was noted that there is absence of legislation with respect to most of the domestic jurisdiction. It was suggested to have a high threshold for defining limitations on freedom of expression, for defining incitement to hatred, and for the application of article 20 of the ICCPR. To establish severity as the underlying consideration behind the thresholds, the incitement to hatred must refer to the most severe and deeply felt form of opprobrium. To assess the severity of the hatred, possible issues may include the cruelty of what is said or of the harm advocated and the frequency, amount and extent of the communications. In this regard, a six part threshold test was proposed for those expressions which are criminally prohibited:

  • Context: Context is of great importance when assessing whether particular statements are likely to incite to discrimination, hostility or violence against the target group and it may have a bearing directly on both intent and/or causation. Analysis of the context should place the speech act within the social and political context prevalent at the time the speech was made and disseminated
  • Speaker: The position or status of the speaker in the society should be considered, specifically the individual’s or organization’s standing in the context of the audience to whom the speech is directed.
  • Intent: Article 20 of the ICCPR requires intent. Negligence and recklessness are not sufficient for an article 20 situation which requires “advocacy” and “incitement” rather than mere distribution or circulation. In this regard, it requires the activation of a triangular relationship between the object and subject of the speech as well as the audience.
  • Content or form: The content of the speech constitutes one of the key foci of the court’s deliberations and is a critical element of incitement. Content analysis may include the degree to which the speech was provocative and direct, as well as a focus on the form, style, nature of the arguments deployed in the speech at issue or in the balance struck between arguments deployed, etc
  • Extent of the speech: This includes elements such as the reach of the speech, its public nature, magnitude and the size of its audience. Further elements are whether the speech is public, what the means of dissemination are, considering whether the speech was disseminated through one single leaflet or through broadcasting in the mainstream media or internet, what was the frequency, the amount and the extent of the communications, whether the audience had the means to act on the incitement, whether the statement (or work of art) was circulated in a restricted environment or widely accessible to the general public.
  • Likelihood, including imminence: Incitement, by definition, is an inchoate crime. The action advocated through incitement speech does not have to be committed for that speech to amount to a crime. Nevertheless some degree of risk of resulting harm must be identified. It means the courts will have to determine that there was a reasonable probability that the speech would succeed in inciting actual action against the target group, recognizing that such causation should be rather direct
[6].

This plan of action also laid emphasis on the role of the states and other international organizations in battling hate crimes.

Hate speeches are a global concern. As much as every individual is entitled to have an opinion and express it freely every individual is also entitled to feel secure and safe. There has been a sharp increase in the amount of material, which can incite hate globally. This is mainly due to the increase in use of online media. In today’s world thanks to social media, circulating hate material has become so much easier. Initially when social media didn’t have this prevalence globally, a speech spewing hate would at least be contained to a limited number of people. Now in today’s day and age one hate tweet can be retweeted another thousand times and has the whole world as a platform to view it .It is imminent that we tackle the problem of hate speeches and material inciting hate immediately. We live in societies, which are brimming with intolerance and hypersensitivity. Xenophobia, Racism, Communalism, Ethnocentrism have become household names. Hate crime shave been increasing at an exponential rate. At such a juncture, it becomes extremely important to promote intercultural dialogue and respect for other cultures, ethnicities and religions. This will be effective only when the problem of hate speech is tackled in an efficient manner.

[1] http://www.ohchr.org/en/NewsEvents/Pages, Navaneethan Pillai’s lecture on Hate Speech at the London School of economics

[2] http://www.ohchr.org/Documents/Issues/Expression/ICCPR/Bangkok/TeestaSetalvad, as seen on

[3] General Assembly Resolution 2106A(XX), 21 December 1965, entered into force 4 January 1969.

[4] Jersild v. Denmark, 22 August 1994, Application No. 15890/89

[5] Prosecutor v. Nahimana, Barayagwiz and Ngeze, 3rdDecember 2003, ICTR-99-52-T (Trial Chamber)

[6] 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 organized by OHCHR, in 2011, and adopted by experts in Rabat, Morocco on 5 October 2012.

1 COMMENT

  1. Dear Namratha,

    I found your piece quite engaging and informative. I think it would have greatly benefitted from inclusion of Pravasi Bhalai Sangathan v Union of India Air 2014 SC 1591 wherein Dr Justice BS Chauhan discussed in detail the international law framework and comparative law regarding treatment of hate speech. Its contestation with freedom of speech and expression, which is protected both nationally and internationally, has been discussed in great detail. The judgment makes mention to CERD and ICCPR.
    The article would have greatly benefitted from citing the work of Toby
 Mendel’s Hate 
Speech 
Rules
 Under 
International 
Law (2010). He is Executive
 Director, Centre 
for
 Law
 and 
Democracy,Canada. Having read his work, I think your article would have definitely improved in terms of depth as well as engagement since your article bears similarity to his structure, content and arguments.

    Notwithstanding the same, I think its good work that has been done considering your academic level. Hope to read more of your articles on contemporaneous issues.

    With regards,
    Surendra

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