Some forms of speech must be prohibited by states. Article 20(2) of the ICCPR is important in this regard. It provides that:
“Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”
However, what constitutes “hate speech” and the balance to be struck between freedom of expression and protection against incitement is dealt with differently in different jurisdictions. International law does not define “hate speech”, and the lack of consensus around its meaning can be abused to enable infringements on a wide range of lawful expression.
Care should be exercised by states to avoid over-regulating hate speech. Any restriction must be provided by laws that are precise, public and transparent. Importantly, hate speech should not be conflated with offensive speech, as the right to freedom of expression includes speech that causes shock or offence.
Hate speech is complicated because although it is necessary to protect certain groups from hateful speech, regulations also have the potential to stifle free expression, silence debate and restrict participation online, underscoring the need for non-legal ways to counter it as well.
Media Defence has developed a series of summary modules which provide an overview of hate speech and how it is dealt with under both domestic and international law. The summary modules also provide insight into the dangers of vagueness in defining hate speech and outlines various special cases of hate speech.
Media Defence’s series of Advanced Modules on Digital Rights and Freedom of Expression online provide a more comprehensive review of current developments and jurisprudence in the field of digital rights. In combination with the Summary Modules above, these resources form the basis of our introductory and advanced litigation surgeries. The Advanced Modules have been designed to assist lawyers representing journalists, bloggers and other online media in East, West and Southern Africa. They include emerging trends in digital rights as well as tools and advice on litigating cases at the national and regional levels.
The Advanced Modules detail the various ways in which online speech is criminalised, including hate speech, cybercrimes, and fake news and disinformation. A detailed account of the fundamental international and regional legal principles is set out, as well as an assessment of the impact and legitimacy of the criminalisation of freedom of expression.
Key Case Law
In many cases concerned with the restriction of freedom of expression, the courts often focus on whether the crime fits the punishment, so to speak. Proportionality and legitimacy have been used as a marker for the appropriateness of limitations on freedom of expression. Courts around the world have adopted the position that merely hurtful statements do not constitute hate speech.
The Constitutional Court of South Africa declared a provision in South Africa’s Equality Act unconstitutional on the basis that it infringed the right to freedom of expression as the provision’s use of the word “hurtful” was found to be vague.
The European Court of Human Rights held that the intent of a journalist who created a documentary featuring interviews of racist, neo-Nazi gangs was to make a serious social inquiry exposing the views of racist gangs, and therefore not hate speech.
The African Commission on Human and Peoples’ Rights confirmed that there must be a legitimate reason for the limitation of right and that the limitation must be proportionate and necessary.
After two citizens challenged their conviction following a book they published criticising state ideology, the European Court of Human Rights highlighted that freedom of expression is one of the “essential foundations of a democratic society” and that the imprisonment was neither proportionate nor necessary.
Media Defence’s Work
Free Speech Organisations Submit Amicus Brief in Inter-American Court of Human Rights Case on Criminal Defamation
(Jan 14, 2019)
European Court clarifies intermediary liability standard
(Feb 25, 2016)
State Controlled Media Regulation is a Threat to Press Freedom: Media Defence Files an Amicus Brief to European Court of Human Rights
(Mar 17, 2017)