Was “Hate Speech” Intended to Incite?
Module 6: Hate Speech
Hate speech that is intended to incite hostility, discrimination or violence falls under the type of expression that international law mandates must be restricted. Therefore, a key factor when dealing with hate speech cases is the requirement for there to have been an intention to incite hatred.
The Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence,(1) compiled by a meeting of experts coordinated by the United Nations Office of the High Commissioner for Human Rights (OHCHR), proposes a six-part threshold test to establish whether expression rises to the threshold of being criminal. One of these is intent: “advocacy” and “incitement” are required, rather than mere distribution or circulation. Article 20 of the ICCPR also requires intent. Negligence and recklessness therefore do not rise to the standard of hate speech.
A prime example of this distinction is the case of Jersild v Denmark before the European Court of Human Rights (ECtHR). Jersild was a television journalist who made a documentary featuring interviews with members of a racist, neo-Nazi gang. He was prosecuted and convicted for propagating racist views. However, the ECtHR found that the journalist’s intent was to make a serious social inquiry exposing the views of the racist gangs, not to promote their views. There was a clear public interest in the media playing such a role:
“Taken as a whole, the feature could not objectively have appeared to have as its purpose the propagation of racist views and ideas. On the contrary, it clearly sought – by means of an interview – to expose, analyse and explain this particular group of youths, limited and frustrated by their social situation, with criminal records and violent attitudes, thus dealing with specific aspects of a matter that already then was of great public concern… The punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so.”(2)
The seminal case of Qwelane v South African Human Rights Commission in South Africa also dealt with the issue of intent, with the Constitutional Court holding that speech must have a clear intention both to “be harmful or to incite harm” and to “promote or propagate hatred” before it amounts to hate speech:
“A disjunctive reading would render the impugned section unconstitutional, since merely hurtful speech, with no element of hatred or incitement, could for example constitute prohibited hate speech. This would be an impermissible infringement of freedom of expression as it would bar speech that disturbs, offends, and shocks.”
Building counter-narratives as a response to hate speech
According to the United Nations Educational, Scientific and Cultural Organization (UNESCO), non-legal methods of countering hate speech are equally important. One such measure is building a counter-narrative by promoting greater media and information literacy as a more structural response to hate speech online:
“Given young people’s increasing exposure to social media, information about how to identify and react to hate speech may become increasingly important. It is particularly important that anti-hate speech modules are incorporated in those countries where the actual risk of widespread violence is highest. There is also a need to include in such programmes, modules that reflect on identity, so that young people can recognise attempts to manipulate their emotions in favour of hatred, and be empowered to advance their individual right to be their own masters of who they are and wish to become.”(3)