I. What is ‘hate speech’?
‘Hate speech’ is an emotive concept, and there is no universally accepted definition of it in international human rights law.
A definition of ‘hate speech’ that means any expression of discriminatory hate towards people captures a very broad range of expression, including lawful expression. This general concept, therefore, is too vague for use in identifying expression that may legitimately be restricted under international human rights law. Other elements have been included to contest what constitutes ‘hate speech’, creating disagreement and uncertainty over appropriate responses.
II. Lawful and unlawful ‘hate speech’
For the above reasons, ARTICLE 19 believes that effective and nuanced responses to ‘hate speech’ are critical. We propose a typology for identifying ‘hate speech’ according to the severity of the expression and its impact, informed by international human rights law, to guide appropriate responses that consider the mutually reinforcing nature of the right to freedom of expression and equality.
1. ‘Hate speech’ that must be prohibited
2. ‘Hate speech’ that may be prohibited, complying with the three-part test under Article 19(3) of the ICCPR: a) provided for by law; b) in pursuit of a legitimate aim; and c) must be necessary in a democratic society.
3. Lawful ‘hate speech’
III. How is ‘hate speech’ different from hate crimes?
‘Hate speech’ and ‘hate crimes’ are often conflated and used interchangeably, but they should be distinguished. Both are symptomatic of intolerance and prejudice, but while all ‘hate speech’ is a cause for concern, it will not always constitute a criminal offence. States are required to prohibit severe forms of ‘hate speech,’ including through criminal, civil, and administrative measures.
The most severe types of hate speech that may appropriately attract criminal sanction include “incitement to genocide”, and particularly severe forms of “advocacy of discriminatory hatred that constitute incitement to violence, hostility or discrimination.” In these cases, ‘hate speech’ may also be the expressive act itself that is criminalised. On the other hand, ‘hate speech’ may not be an element of a ‘hate crime.’
- Deeply offensive expression: International freedom of expression standards protect expression that is offensive, disturbing or shocking, and do not permit limitations premised solely on the basis of “offence” caused to an individual or group.
- Blasphemy or “defamation of religion”: International human rights law protects people, and not abstract concepts, such as religions or belief systems. It distinguishes between ideas or beliefs attached to individuals, and does not protect religions or beliefs per se from adverse comment or scrutiny.
- Denial of historical events: While denial of historical events raises concerns of intolerance and may legitimately be considered ‘hate speech’, prohibitions on such expression should be limited to only those acts that reach the threshold of advocacy of discriminatory hatred that constitutes incitement to violence, hostility or discrimination.
- Inciting terrorist acts and violent extremism: Under international law, States are obliged to prohibit incitement to terrorist acts. However, being a restriction on freedom of expression to protect national security, these measures must comply with the three-part test set out in Article 19(3) of the ICCPR.
- Protection of “the State” and public officials: International standards do not permit restrictions on the right to freedom of expression which are made in order to protect “the state” or its symbols from insult or criticism. These entities cannot be the target of ‘hate speech’, because they are not people and are therefore not rights-holders.
- Defamation: legal protection for defamation does not require an individual to show any advocacy of hatred, defamation laws aim to protect reputation of individuals and should be distinguished from ‘hate speech’.
V. Responses to ‘hate speech’: how different actors can act to combat ‘hate speech’?
- States must create an enabling environment for the rights to freedom of expression and equality and non-discrimination; employ a range of positive policy measures to tackle prejudice and discrimination; and address the root causes driving hate as well as meeting victims’ needs.
- Other stakeholders, including civil society, media and companies, should undertake voluntary initiatives to tackle the root causes of prejudice and intolerance to contest ‘hate speech’.
VI. Hate Speech Online
Dominant Social Media Platforms have a responsibility to respect freedom of expression and privacy, conduct human rights impact assessments of their work and provide redress to their users in cases of violations. Content moderation policies should be responsive to the needs of victims of hate through transparency and real accountability mechanisms.
States need to look beyond online content and focus also on addressing the root causes of discrimination and taking positives steps to address societal problems that online hatred and abuse is symptomatic of.