By Jacob Mchangama, Director, Justitia, Denmark and Natalie Alkiviadou, Senior Research Fellow, Justitia, Denmark
The point at which free speech ends and hate speech begins has become a
burning issue in an age of social media, where billions of people have access
to share synchronous content on global fora. This has raised concerns over an
epidemic of hate speech, with privately owned platforms looking to human rights
law for inspiration and legitimisation of their own community
standards and terms of service, which typically prohibit hate speech, although
definitions vary widely. The concerns have also led both the European Union and
European democracies to adopt several measures to counter this phenomenon.
Examples include the EU’s Code of Conduct on Illegal Hate Speech which requires
companies to remove hate speech within 24 hours of them being reported and the
2017 German Enforcement Act which places pressure on social media companies to
remove hate speech at risk of 50 million Euro fines.
In the landmark case of Handyside v. The United Kingdom, the European Court of Human Rights (ECtHR or the
Court) underlined that the right to freedom of expression, as provided for in
Article 10 of the European Convention on Human Rights protects not only
expressions that are favourably received but also those that ‘offend, shock or
disturb.’ Despite this apparently robust protection of free speech, the Court
has since developed a substantial body of case-law permitting (and even
requiring) restrictions of ‘hate speech,’ which it has conceptualized as
including even offensive speech. It has done so without properly defining or
convincingly demonstrating the need to restrict this category of speech. The
Court has allowed for criminal penalties on youngsters sharing out homophobic leaflets in a high school, a Belgian politician handing out Islamophobic leaflets, a German citizen comparing a local
government official to Heinrich Himmler and has
often used Article 17 (the non-destruction clause) in cases involving
negationism or revisionism of the Holocaust.
In light of the above and within the framework of the Future of Free Speech project run by Justitia in collaboration with Columbia University’s Global
Freedom of Expression project and Aarhus University’s Department of Political
Science, we set out to look at the extent to which the Handyside decision and particularly the benchmarks of shock,
offence and disturbance have been been upheld within the framework of hate
speech. To this end, we analysed 60 cases decided by the ECtHR and the European
Commission of Human Rights’ between 1979-2020.
57 of those cases were brought by the utterers under
Article 10, and 3 by the victims of the alleged hate speech under Articles 8
and 14. Cases concern speech linked to
homophobia and transphobia, ethnic hatred, religious hatred, violence,
totalitarianism and genocide denial. Our
analysis reveals that 61% of cases
brought by the utterers resulted in the applicant’s loss through a finding
of non-violation of Article 10 (21%) or due to the inadmissibility of decisions
in 41% of cases (for example through the use of Article 17 in Holocaust denial
cases) Only 39% of cases brought by the utterers have resulted in a finding in
favour of the applicant. Thus, on average, free speech restrictions have been
upheld in just over one out of three hate speech cases. Many of the cases
decided by the ECtHR involve statements that deserve moral condemnation from
both civil society and governments as well as moral support to the affected
minority groups. The response does not necessarily have to include legislative
(particularly criminal) penalties, as repeated time and again by the European
Commission against Racism and Intolerance and by the United Nations. At the
same time, a plethora of free speech cases have gone amiss due to the Court’s
approach. A good example is that of Nix
v Germany. where the Court
rejected the application of a German blogger who posted a picture of Himmler
wearing a swastika armband and likened him to the officers of the employment
office and the alleged discriminatory treatment his daughter (and many other
youngsters) were receiving from them.
Quantitative and Qualitative Compilation of Findings
We have compiled our findings into an interactive online database. This allows users to view the cases thematically but
also per country. A short overview of each case as well as link to the original
judgment is available for easy access and reading. It must be noted that
translations from judgements originally in French are our own. We will be adding to the database as new
cases come about and welcome anyone to contact us if they consider that a case
has been missed out.
Hate Speech: Semantics and Notions
As such, the first points to note are that the term
‘hate speech’ is not essentially defined by the ECtHR and there is a variation
of thresholds attached thereto. The Court’s references made to hate speech are generic,
offering no substantial definition of this form of speech. The closest we have come
to a conceptual understanding of hate speech has been Lilliendahl v Iceland (2020). This case involved
comments made under an online article by a citizen regarding a proposal to
strengthen education and counselling in schools on matters concerning those who
identify themselves as lesbian, gay, bisexual or transgender.
This was the first
time that the Court posed the direct question of whether the speech amounted to
hate speech within the meaning of the Court’s case-law. To answer this, the Court set out an explanation of hate speech based
on its previous jurisprudence, adopting a hierarchal categorisation, rather
than assessing the substance of what can actually fall within the framework of
hate speech. The fact that no previous case had actually provided a definition
of hate speech did not help the Court in this exercise. It found that hate
speech falls into two categories. The first is the ‘gravest forms of hate
speech’ that are excluded from any protection through Article 17 (with no
definition of what constitutes the ´gravest forms of hate speech´). The second
is the ‘less grave forms of hate speech’ which do not fall outside Article 10
but which the Court ‘has considered permissible for the Contracting States to
restrict.’ Here, the Court incorporated not only calls for violence or other
criminal acts but also insults, ridicule and slander in order to combat
‘prejudicial speech within the context of permitted restrictions on freedom of
expression.’ It makes no further elaboration of what this context of permitted
restriction may be, something which would have been expected given the
fundamental nature of free speech in addition to the very low threshold attached
to, for example, insult or ridicule.
Despite the fact that the term
‘hate speech’ is included in over twenty of the cases examined, with some being
from the end of the 90’s, the Court waited until 2020 to establish the above
tiers and extrapolation of the term (albeit without too much nuance). This 2020 positioning
demonstrates that the threshold of the ECtHR is in fact low since insults can
be prohibited, whilst the reference to ‘prejudicial’ speech is also indicative
of this. Illustrative of the
low-thresholds but also of the inconsistent position of the Court to hate
speech are the differential treatment in Ibragim Ibragimov and Others v Russia
(2018) on the one hand and Atamanchuk v Russia (2020)
on the other. The former
involved the banning of Muslim scholar Said Nrusi’s book, due to allegations
that is was extremist literature. Here, the ECtHR held that,
since the book depicted a moderate, non-violent, understanding of Islam, the
restriction to speech was not legitimate. It noted that:
‘merely because a remark may be perceived as offensive
or insulting by particular individuals or groups does not mean that
it constitutes “hate speech.” Whilst such sentiments are understandable,
they alone cannot set the limits of freedom of expression.’
In Atamanchuk v Russia (2020), which
involved an application made by a journalist/politician after he was convicted
of making statements against non-Russians, referring to them as criminals
(without making any calls for violence), the Court found that:
‘inciting hatred does not necessarily involve an explicit call for an act of violence, or other criminal acts. Attacks on persons committed by insulting, holding up to ridicule or slandering specific groups of the population can be sufficient for the authorities to favour combating xenophobic or otherwise discriminatory speech in the face of freedom of expression exercised in an irresponsible manner.’
This threshold is rather broad since it incorporates even the mere
justification of hatred and the encapsulation of insults in the ambit of an
attack. This is far from the threshold from the international ‘hate speech
clause’ namely Article 20(2) of ICCPR which prohibits advocacy for national,
racial or religious hatred that constitutes incitement to discrimination, hostility or
violence.
Thus,
in the former case, mere insult was not sufficient to prohibit speech whereas
in the latter, not only could insult be prohibited, but it was also
incorporated in the framework of inciting hatred, without the nexus between
insult and hatred being defined by the Court. The differential element of the
cases was that in the latter, speech was directed against a particular group
characterised by a particular characteristic (ethnicity).
As such, although the
Court notes that it may be considered necessary in certain democratic societies
to limit some forms of expression, it has yet to provide a coherent legal
and/or normative extrapolation of when/where/how these limitations can or
should occur. This has resulted in certain anomalies vis-à-vis the treatment of similar cases as demonstrated above. To
this end, a proper definitional framework is of utmost importance as well as a
coherent set of thresholds.
A coherent conceptualisation of hate speech by the
ECtHR is a necessity since, without this, delineations between acceptable and
unacceptable speech cannot be discerned. This is even more pressing in the
absence of a Council of Europe equivalent to the Rabat Plan of Action which sets out strict thresholds for hate speech. One
of the central objectives of this Plan is to provide for a comprehensive assessment of the state of implementation of the
prohibition of incitement in conformity with international human rights law through
a robust threshold.
It is imperative to highlight that hatred should be
tackled for the purpose of ensuring just and equal liberal democracies. At the
same time, a very central tenet of such a democracy is the fundamental nature
of free speech. Whilst the ECtHR’s restrictive approach has arisen from the
good (yet paternalistic) intentions of the ECtHR to protect groups perceived
vulnerable to hatred, the handling of the manner, at the expense of Article 10
has been unconvincing and confusing. Moreover, nowhere in the Court’s judgment
has there been any openness to explore the potential negative side effects that
speech restrictions may have on the minorities they try to protect nor on the possible positive correlation between speech restrictions
and violence, as suggested by empirical research.
Conclusion
In light of the above qualitative and quantitative
findings, we argue that the ECtHR adopts
an overly-restrictive approach in the ambit of hate speech, which fails
to provide adequate protection to political speech on controversial issues,
including criticism of public officials and government institutions and has
created an inconsistent and even arbitrary body of case law which leaves
European citizens and States at a loss on how to properly delineate the limits
of hate speech.
