This article is written by Seep Gupta, from the Institute of Law, Jiwaji University. This is an exhaustive article which deals with the prevention of hate speech in the light of international human rights.
Hate speech instigates or incites violence, hatred, jealousy and promotes discrimination against a particular group, especially against those social groups who are off the mainstream society such as minorities or people from a certain racial or ethnic background. Without beating around the bush, I will unravel some of the insights related to hate speech in this article and will also throw light on the prevention of hate speech with reference to International Human Rights.
What constitutes hate speech?
Hate speech is a form of speech or expression which is provocative and intentional and comes under the pejorative category. It is usually spoken to defame any particular community or tends to denigrate a person based on his alleged membership in the social groups which is attributed by the following traits as race, caste, sex, religion, sexual orientation, physical or mental disability, etc.
It usually involves defamatory or inflammable slurs or expressions. These forms of expressions or speech can incite hatred, stereotypes or violence against a particular group. It is not necessary that hate speech has to be in a verbal manner, it can be through symbols and in a libel manner too. Nazi swastika symbol, which was the symbol of the Nazi party in Germany in the 20th century, is a primary example of hate speech. Holocaust and Rwandan genocide are the prime examples that how hate speech can incite genocide. It undermines the social equality of the victims and ostracizes them. Hate speech not only physically harms the victims but also impacts them mentally. It takes years to undo the psychological damage caused by hate speech. Hate speech poses a great challenge to liberal societies or people holding liberal views because it comes within their way to create a socially equal and liberal society. It’s the speciality of hate speech that usually targets people from oppressed and marginalised communities.
It has become a topic of hot debate among the liberal societies that how to censor bigoted hate speech so that it does not violate the basic fundamental right of freedom of speech. It should be censored to the extent that it does not sound offensive to any particular community or group.
Laws related to hate speech
Hate speech has been used to promote genocide of vulnerable communities and minorities. On the international level, the issue of hate speech is balanced and is determined by Article 19 and Article 20 of the International Covenant on Civil and Political Rights. In brief, both these articles give freedom of expression which includes the freedom to ask, seek, and to receive and impart every kind of information with the exception to restrict and prohibit inflammatory speech which is volatile and hostile.
Laws in the United States of America
In the context of the United States, the US Supreme Court regulates the spread of hate speech by prohibiting offensive words and symbols that can incite violence and hatred. Generally, in the United States Constitution, hate speech is considered to be protected under the first amendment. Comparing both the approaches and laws, international law is more sensitive and strict over hate speech while the USA protects the freedom of free speech to a certain level. The US Constitution places the whole burden to curb hate speech and to impose restrictions on states. It’s the responsibility and duty of states to keep a watch over hate speech. The US courts presume that content regulation for public discourse is unconstitutional and it comes between the right to exercise freedom of free speech.
Laws in India
India is a multicultural country and an amalgamation of different ethnicities and different cultures. In a plural democracy like India, there is often a conflict between different communities and between different narratives regarding the interpretation of what can be constituted as hate speech. Critical and dissent voices are an important part of any vibrant society and an important feature of a truly democratic country. However, freedom of speech is not unrestricted. One cannot use this right as a facade or as a tool to incite violence or hatred against any particular group or community.
The states are therefore responsible for placing restrictions on the freedom of speech. The Indian Constitution acknowledges the fact that the liberty to exercise the right to freedom cannot be uncontrolled and unrestricted. In Part III of the Indian Constitution which gives detailed information regarding fundamental rights, clause (2) to (6) of Article 19 contains the detailed provisions regarding restrictions of the right to freedom of speech. The freedom of speech is subjected to certain restrictions such as sovereignty and integrity of India, the security of the state, friendly relations with foreign states, public order, decency or morality or about defamation or contempt of court, etc. However, there isn’t any definition of hate speech given in the Indian Constitution or law.
Correlation between hate speech and freedom of expression
Often the right to freedom of expression or free speech overlaps the concept of hate speech but from the legal perspective, there is a very fine line that separates both expression and hate speech. Free speech and hate speech are correlated but still, they are different from each other and the difference matters.
Free speech is the freedom to speak or say whatever one likes in an unrestricted and uncontrolled manner. Free speech need not be unpopular opinions. Every person has a right to express their opinions and dissent. This is the most valuable and foremost feature of a democratic state. Everyone has the right to hold opinions and to challenge the conflicting opinions of others. The concept of free speech is limited by hate speech. Even free speech has its threshold frequency. Not everything is bearable and tolerable in the name of free speech. Some people try to use the right of free speech as a political tool to incite hatred or violence. Hate speech is considered a reasonable restriction over the right of freedom of expression. Hatred, propaganda or instigation of violation propagated by hate speech contribute little to the self-development of an individual or the development and prosperity of a nation. Hate speech also contributes to the disharmonious relations between myriad communities in multicultural countries.
The present scenario in light of international human rights
Violation of human rights
Upholding free speech is hugely important to all open societies which cherish and preserve the idea of human rights. Speech that is offensive and simply does not pose any risk or threat is generally not considered a violation of human rights. Human Law treaties outlaw offensive speech if it poses great risk or threat to others. Hate speech violates human rights if it incites discrimination or violence towards a person or a group defined by their race, religion, ethnicity or other factors. Hate speech targets minorities and others in a social group. This is manifested because of the alienation or ostracization of some specific minority groups such as the LGBTQ+ community for instance.
Provisions related to hate speech under international human rights law
The Council of Europe in 1997 defined hate speech as, “all forms of expression which tend to incite violence, promote or justify racism, xenophobia, antisemitism or other forms of hatred based intolerance”. International law offers plausible remedies for hate speech. There are a plethora of treaties under international law which prohibits hate speech. Under Article 7 of the Universal Declaration of Human Rights, everyone is entitled to equal protection under this declaration without any discrimination. Article 3 of the Genocide Convent makes direct and public incitement to commit genocide a punishable offence. Under Article 4 of the International Convention on the elimination of all forms of Racial Discrimination, the state has the right to disseminate and to make punishable offence, all the ideas based on racial superiority which peddles racism and all acts of violence and discrimination against any person or group of a specific colour or ethnic origin.
Role of United Nations in curbing hate speech
Hate speech is an obstacle or a menace to true democratic values. The United Nations must confront and stop hate speech at any cost. Silence and indifference are signals for promotion and giving prevalence for the peddling of hate speech. Tackling hate speech is one of the most important agendas of the United Nations. The primary goal of the UN agenda in combating hate speech is to prevent armed conflicts, atrocities, violence, terrorism, violence against women and grave violations of Human Rights, etc.
The aim of the United Nation is not to curb the freedom of expression or hate speech but it focuses on keeping free speech in check so that it does not escalate into something dangerous or violent. The United Nations has a long history of mobilizing world hate, keeping conflicts in control and in maintaining world peace. It also keeps an eagle eye watch over violations of human rights around the world. In 2014, the United Nations produced a Framework for Analysis for Atrocity Crimes which outlined that atrocity crimes are not impromptu, random or spontaneous. They are well-planned, rendezvous, processors with histories, precursors and triggering factors. The framework mainly focuses on the pattern to recognise the enabling circumstances and triggering factors that involve and propagate the malicious propaganda of hate speech.
The United Nations has designed a Strategic Plan and Action in 2019 to combat hate speech while upholding the noble spirit of free speech or freedom of expression. Measures in this action plan are taken keeping in mind the international human rights norms and standards, in particular with the right of freedom of expression and opinion. The main aim is to detect and address the root cause of enablers and causes of hate speech. Another aim is to effectively respond to the impact of hate speech on society. It’s the collective responsibility of all the governments, societies, private sectors and individuals to combat hate speech. The key commitments of this action plan are:-
- The UN must be able to grasp the pattern, monitor, collect the data and analyse the hate speech trends.
- It’s the responsibility of the United Nations to identify the enablers, root cause of the hate speech and the stage actors who support it.
- The United Nations must stand in solidarity with the victims of hate speech and provide them with all the necessary remedies such as their upliftment, advocacy of their rights, psychological counselling and access to justice.
- It must establish a partnership with new and traditional media to address hate speech and to promote the principles of tolerance, non-discrimination, pluralism and freedom of opinions and expressions.
- It must be updated with all the new and advanced technology to keep a check over dangerous and vitriol trends of hate speech and must collaborate with private sectors to counter hate speech and to control the violence which can be incited through the use of social media.
- It’s the duty of the United Nations to aware people regarding the sacred principles of peace, tolerance, non-violence, non-discrimination and to promote inter-faith, inter-cultural, inter-racial and mutual understanding among the masses.
- The United Nations must support its member states in the field of capacity building and policy development to address the grave issue of hate speech.
Protection against hate speech is also given in Article 7 of the Universal Declaration of Human Rights, 1948. It outlines the right to equal protection against incitement to discrimination. The Rabat Plan was the by-product of the series of the expert-level workshop organised by the Office of United Nations High Commission for Human Rights (OHCHR) in Rabat, Morocco 2012. It specifically includes recommendations of distinction between freedom of expression and hate speech, specifically by offering a guide for appropriate implementation of Article 20 of the International Covenant on Civil and Political Rights.
There is no doubt that hate speech is a vice in a democratic society. Collective efforts of both the United Nations and the government of all the countries are required internationally to combat the raging trend of hate speech. Values like non-violence, non-discrimination, mutual peace and love should be upheld, spread and cherished.
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