ARTICLE 19 considers that the ‘hate speech’ conviction of politician Geert Wilders by the Hague District Court does not meet international freedom of expression standards, and warns that it may be counter-productive to addressing racial and religious intolerance in the Netherlands.
“Criminalising a politician for their obnoxious views does nothing to confront or effectively challenge those views. It instead gives them a more prominent platform from which to spread their hatred, undermining much-needed efforts to address racism and religious intolerance across Europe,” said Thomas Hughes, Executive Director of ARTICLE 19.
“The unfortunate consequence of this conviction is that it allows Geert Wilders to present himself as a victim and martyr: he is not a champion for free speech, and must be called out for being an opponent of human rights,” Hughes added.
Geert Wilders, leader of the Freedom party (PVV), was convicted for statements made to a café full of supporters on 19 March 2014. He asked whether those assembled wanted “more or fewer Moroccans” in the Netherlands, and responded to chants of “fewer” that he would “take care of that”. The rally was broadcast on television.
The conviction was under two provisions of the Dutch Criminal Code: for intentionally making an insulting statement about a group of persons because of their race (Section 137(c)), and for inciting discrimination against a group because of their race (Section 137(d)). Wilders was cleared of inciting hatred against persons because of their race, which is also contained in Section 137(d). He was also acquitted under both provisions for similar remarks made in a TV interview on 12 March 2014.
Though a maximum of two years imprisonment is available to persons who commit these crimes in the course of their profession, the judge declined to impose any sentence beyond the guilty conviction. Prosecutors had sought a fine of 5,000 Euros.
Insult of a group
The conviction for insult of a group under Section 137(c) related only to Wilders’ comments at the 19 March rally. The Court’s judgment largely focused on the content of the expression as an intentional attack on the self-esteem of Moroccans, in a deliberately orchestrated exchange with a crowd of like-minded supporters, rather than as a “useful contribution to public debate.”
ARTICLE 19 considers that Wilders’ comments on 19 March 2014 were insulting towards Moroccans, and may correctly be identified as “hate speech”. However, we do not consider that insult laws, including those criminalising insult against a group, can be justified under international human rights law. We recall that while all “hate speech” raises concerns in terms of intolerance and discrimination, not all “hate speech” may legitimately be restricted by the state.
Insult laws, and the conviction of Wilders for insult, run contrary to the principle that freedom of expression encompasses statements that are deeply offensive to individuals or groups, including even expression that may be discriminatory or considered “hate speech”. Though freedom of expression may be limited to “protect the right of others”, there is no right to be protected from insulting or offensive ideas or opinions. Permitting restrictions on expression that harm individuals’ feelings is a dangerously subjective exercise that endangers shutting down a broad range of discussion on matters in the public interest.
The “incitement” threshold
Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR) requires states to prohibit only severe forms of ‘hate speech’, specifically “any advocacy of national, racial or religious hatred that constitutes incitement to hostility, discrimination or violence.”
The Rabat Plan of Action gives UN-backed expert guidance on how states should interpret and implement this obligation. Importantly, it makes clear that the criminal law should only be used in the most extreme cases and as a last resort. It sets out a six-factor test to assist judges to make a case-by-case analysis of whether this high threshold has been met.
The Hague District Court found Wilders guilty of incitement to discrimination, and acquitted him of incitement to hatred.
In ARTICLE 19’s view, the Hague District Court gave too broad a reading to Section 137(d) of the Dutch Criminal Code in relation to the incitement to discrimination. The decision accords too much weight to the content of the expression and its incendiary delivery, assuming without detailed analysis that the discriminatory nature of expression would incite others to illegal acts of discrimination. Inadequate consideration is given to other relevant and important contextual factors, including the speaker’s intent to incite illegal discrimination, the context of a broad public debate on issues around immigration and integration, and the likelihood of people being encouraged to engage in imminent unlawful acts against the target group. A closer analysis of these factors should have led to an acquittal on the incitement to discrimination charge also.
More speech, not less
ARTICLE 19 considers that politicians and candidates for public office are under an ethical duty to avoid making statements that might promote discrimination or undermine equality. However, this is best achieved through systems of self-regulation, and not through the blunt tool of the criminal law.
In many parts of the world, we see vague “hate speech” laws abused to target individuals with minority and dissenting opinions, including human rights defenders. Even where targeted against advocates of discriminatory hatred, criminal prosecutions pose a dual danger. Where an individual is convicted, the speaker may present themselves as a “martyr” persecuted for speaking the truth, using the platform a conviction provides to spread their hateful ideas even further. Where acquitted, the speaker may present their hateful views as vindicated by the courts. There is little evidence that criminal prosecutions are effective in addressing intolerance or in promoting greater inclusion.
ARTICLE 19 therefore considers that censoring or punishing offensive and discriminatory expression is often counter-productive to the stated aim of hate speech laws to promote equality: it fails to address the underlying social roots of the kind of prejudice that drive “hate speech”. In most instances, we believe equality is better promoted through positive measures to increase space for counter-speech, rather than by shutting down space for debate and engagement.