Freedom of Information and Racist Speech

Dr. Ion Diaconu, Professor, Spiru Haret University, Bucharest, Romania

Even among States and scholars who agree on universal values, like tolerance, mutual respect, dignity and equal worth of human beings and equal rights, one of the most controversial issues in human rights theory and practice is how to distinguish between freedom of information and incitement to national, racial or religious hate.

In recent years, the consideration of this issue has been strongly influenced by the measures adopted in Europe on equality and non-discrimination, especially by the adoption of the EC Directive 2000-43 on the application of equal treatment irrespective of racial or ethnic origin. This led to reviewing anti-discrimination legislation and policies in Member States through the adoption of juridical definitions and criteria and to reforming and strengthening legal bodies dealing with issues of equality and discrimination. Another important step in this direction is the adoption by the EU Council of the Framework Decision 2008/913/JHA on fight against certain forms and manifestations of racism and xenophobia by means of criminal law.

As a result, preoccupations about hate speech and racist speech have taken a new impetus[1]. In light of international practice, setting parameters for establishing a balance between freedom of speech and racist speech becomes also possible, although the application of these rules requires rigorous and sensitive assessment, which should be decided by judiciary for each case.

1. Freedom of opinion and expression is a fundamental right in any democratic society, a prerequisite for achieving the principles of transparency and accountability, including the promotion and protection of human rights. At the same time, everyone is entitled to be treated with equality and dignity and to be protected against expression of hatred based on race, ethnicity, religion or other aspects of his/her personality. Racist discourse, promoting hatred based on race, ethnicity or religion is a serious threat to society. It offends the dignity and self-evaluation of individuals or human groups and leads to strained relations, even to conflict.

Therefore, international documents make a clear distinction between freedom of opinion (forum internum), which raises no problem, and freedom of expression (forum externum), which involves duties and responsibilities and is subject to restrictions.

In any democratic society, an appropriate balance must be set between these rights, for freedom of expression is not a license to hatred, a right to offend others. No human right is absolute; according to the modern concept of human rights; different rights and freedoms must support each other to build a strong and durable system. Without directly referring to this problem, the Declaration adopted by the UN Human Rights Conference in Vienna in 1993 states:

“All human rights are universal, indivisible, interdependent and related to each other. The international community must treat human rights globally, correctly, on an equal footing and with the same emphasis”.

In 1948, the Universal Declaration of Human Rights stated that any human right should be exercised in a way that is consistent with other rights.

2. Art. 19 of the International Covenant on Civil and Political Rights of 1966 provides that everyone shall have the right to hold opinions without interference; the right to hold opinions can not be subject to restrictions.

The Covenant also provides for the freedom of expression, including the right to seek, receive and impart information and ideas of all kinds, regardless of frontiers. According to the opinions adopted by the Human Rights Committee when examining individual communications received under the Additional Protocol to the Covenant, the freedom of expression concerns political speech, comments on public issues, discussions on human rights, journalism, cultural and artistic expression, commercial advertising and religious speech. The Covenant provides for the protection of all forms of expression and means of dissemination of information (oral, written, by signs, art, audio-visual and through any other media chosen).

At the same time, the Covenant stipulates that the exercise of the freedom of expression involves special duties and responsibilities. Consequently, two types of restrictions on the exercise of this freedom are allowed:

- For respecting the rights or reputations of others;

- For protecting the national security, public order or public health or morals.

The European Convention of 1950 on the Protection of Fundamental Human Rights And Freedoms, adopted within the frameworks of the Council of Europe, also provides for the prohibition of discrimination on grounds of race, religion, ethnic origin or any other status and the right to freedom of expression, subject to restrictions to protect the same values.
Such restrictions can not endanger the very freedom of expression (restrictions may not become the norm); moreover, the application of restrictions is subject to strict conditions: they need to be provided by law and applied only for the reasons set out, to be necessary and proportionate to the objective followed (according to the constant jurisprudence of the European Court of Human Rights).

Also, according to Art.20 of the Covenant, any State shall prohibit by law propaganda for war, and any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. This article is considered <lex specialis> to Art. 19.

Likewise, according to the International Convention on the Elimination of All Forms of Racial Discrimination of 1965 (Art. 4), the States Parties are obliged to declare any dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or any group of persons of another color or ethnic origin, to be an offense punishable by law. The Convention provides for the prohibition of discrimination on grounds of race or ethnic origin in the exercise of the freedom of opinion and expression(Art. 5).

The Covenant of 1966 also prohibits incitement to religious hatred, while the 1965 Convention deals only with issues of discrimination on grounds of racial or ethnic origin. We must not ignore the intersection that often occurs for some individuals between race, ethnicity and religion, which apparently makes discrimination on religious grounds to sometimes disguise racial or ethnic-based discrimination.

We also note the Protocol relative to the criminalization of racist and xenophobic acts, supplementing the Convention of 2004 on combating crime in cyberspace, adopted by the Council of Europe, which extends these norms to the Internet.

3. At the European level, apart from the Convention of 1950, we mention Decision 2008/913/JHA adopted by the European Union (in fact, a directive), with the purpose of fighting against some forms and manifestations of racism and xenophobia through criminal law[2]. This decision was adopted in application of Art. 29 of the Treaty of Union, which sets as its objective to provide citizens with a high level of protection in an area of freedom, security and justice, through a joint police and judicial cooperation in criminal matters, to prevent racism and xenophobia and to combat these phenomena. The Decision aims to deepen legal instruments to combat racism within the Union and, of course, to harmonize national laws of Member States in this field.

At the outset, the Decision specifies that it does not alter the obligations to respect the fundamental rights and principles, including freedom of expression and association, and does not require that States adopt measures contrary to these rights, especially the freedom of press and freedom of expression by other means; it also does not alter the responsibilities of the press and other media and the appropriate procedural safeguards. Setting legal limits to the exercise of these freedoms, the Decision is based on generally accepted concepts in international law that such limitations, aiming at the suppression of racism and incitement to racial hatred, are compatible with conventional and constitutional provisions guaranteeing freedom of expression.

According to the Decision, Member States must provide for sanctions in criminal law for public incitement to violence or hatred targeting a group or one of its members on grounds of race, color, religion, descent or national or ethnic origin, including incitement committed through dissemination or distribution of facts, images or other media. It also provides for punishment for complicity to commit such acts. Moreover, it states that such acts can be punished only if they are intentional.
The decision offers an alternative to Member States, adding that they may choose to punish only such behavior that is likely to disturb public order (taking into account the conditions and the context in which it takes place), or if they are threatening, abusive, or insulting.

According to the Decision, advertising is a constituent part of the offense, just like intention. Advertising is made via press, television, broadcast or any work distributed, and via the Internet, but also through oral speech. The use of German Nazi symbols or reference to them is considered to be an indication of the willingness to incite racial hatred, while dissemination of historical documents for scientific or educational purposes shall not be interpreted as such.

The Framework Decision requires Member States to punish condoning, denying or grossly trivializing in public the genocide, crimes against humanity and war crimes as defined in the Statute of the International Criminal Court, targeting a group of persons or one of its members defined with reference to race, color, religion, descent or national or ethnic origin, when this behavior is exercised in a way that incites hatred or violence against such a group or such persons, and condoning, denying or trivializing in public crimes defined in the Charter of the Nuremberg Military Tribunals annexed to the London Agreement of 1945, targeting such groups or individuals. It also provides for punishment for incitement to commit such acts. States may declare that they will punish denial, apology or trivializing crimes of this kind only if they were punished by the final decisions of international or national courts.

Holocaust denial is thus equated to inciting racism by referring to the same categories of groups’ victims and to the same behavior that incites violence or hatred against such a group or such a person. It is estimated that the objective pursued by punishing denial is not to restore the historical truth in court, nor to suppress historical errors, but to fight against racism, because condoning, denying or trivializing crimes are the disguised forms of incitement to hatred, violence, or racial discrimination. The European Court of Human Rights stated that the denial of established historical facts, such as the existence of the Holocaust, “calls into question the values underlying the fight against racism and anti-Semitism and are likely to seriously disturb public order”[3]. What is criminalized is not simply the presentation of history departing from the facts proven by decisions of courts, but the use of history, by deforming and denial, in order to incite racial hatred.

In connection with other crimes, the Decision requires Member States to take the necessary measures so that the racist or xenophobic motivation are considered an aggravating circumstance or that the courts are taking into account the racist motivation in determining the sentence. In many European countries, criminal law provides for taking into account the racial motivation as an aggravating circumstance.

It also provides that legal persons may be criminally liable for acts of racist incitement committed by their organs or any person acting on their behalf, without removing the individual responsibility of the individual concerned. Penalties range from fines to the prohibition of certain activities and even dissolution. For individuals, the maximum penalty is of one to three years’ imprisonment.
It is important to note that, under this Decision, (at least for the most serious facts) the prosecution does not depend on the victim's complaint, but should follow automatically.

4. As a result, freedom of expression is not absolute; its exercise should take place with respect for other human rights and for other values protected by the rules of law.

Thus, the international treaties provide for the protection of both values: freedom of expression and freedom from racist acts. Committees which oversee their implementation by States Parties stressed the compatibility of the two sets of provisions and adopted clear stands on this matter.
In its general recommendation No. 15, 1993, the Committee on the Elimination of Racial Discrimination stated that the prohibition of dissemination of ideas based on racial superiority or hatred is compatible with the freedom of opinion and expression. In its general comment on Art.20 of the Covenant, the Human Rights Committee states that the obligation to prohibit by law any advocacy of national, racial or religious hatred that constitutes incitement to discrimination or violence is fully compatible with the exercise of freedom of expression which implies special duties and responsibilities.

It is therefore absolutely necessary to reconcile the two values, both protected by rules of law and to establish a balance between the prohibition of dissemination of racist acts, of calls to hatred and racial discrimination, and freedom of expression, within the general framework of human rights and fundamental freedoms[4].

5. The ideas and words are powerful, their power may be used for positive or negative purposes, they can undermine the freedom and equal rights, as well as the democracy and stability. Expressions of hatred have the power to cause damage, to isolate and marginalize some people only for their personal characteristics, such as ethnicity, race, religion; in fact, hate is directed generally against people or vulnerable groups, but sometimes against the majority of the population in different countries, following the history of intolerance, prejudice, and discrimination.

Most national laws criminalize hate speech with significant differences. In Europe, for example, national regulations range from the ban of Holocaust denial and genocide, the prohibition of insults on grounds of belonging to a racial or religious group, to attacks on religious feelings or national unity[5].

Some laws associate the incitement to hatred with the incitement to violence or discrimination, or to hostility and sometimes discord (Bosnia-Herzegovina, Montenegro, Romania, Serbia, and Turkey). According to other legislation, only incitement to violence is incriminated, without mentioning the incitement to hatred (Austria, Cyprus, Greece, Italy, and Portugal). Other legislation closely follows the Convention of 1965 on the elimination of all forms of racial discrimination, punishing incitement to hatred, discrimination, or violence (Belgium). Many states criminalize racist speech as an affirmation of inferiority or superiority of races, extending it to the nationality or religion (Azerbaijan, Croatia, Denmark, Switzerland, Liechtenstein, Poland, Russia, and Slovenia). Some add qualifications such as “challenge” (France), “propagation” (Bulgaria), “ill will” (Cyprus), “promotion of division” (Montenegro, Romania, Serbia, Turkey), “create the atmosphere of intimidation, hostility, humiliation” (Romania); other states are criminalizing individual support to a group aimed at inciting hatred (Belgium, Italy, Luxembourg, Russia) or even support involving incitement (Luxembourg, UK). Many laws prohibit symbols related to Nazi associations or which deny the holocaust or genocide. Some legislations limit the prohibition to the situation where the incitement to racial hatred involves a danger to public order (Germany, Austria), or affects human dignity (Germany, Austria, Liechtenstein). Others add the use of violence as an aggravating circumstance of the incitement to hatred (Armenia, Bosnia, Latvia, Montenegro, Serbia, Slovenia, Ukraine).

The laws of most European countries resumed the provisions of Art.20 of the Covenant on Civil and Political Rights. Many States are criminalizing, in the same provision, the incitement to hatred or discrimination for other reasons (religious, political, on the grounds of class, sexual preference, etc.).
Several countries in their legislation add the requirement that the incitement be public. For some, the public nature of incitement to hatred is an aggravating circumstance (Armenia, France). Other laws make it an aggravating circumstance, if the call to hatred is made through mass media (Armenia, Azerbaijan, Malta, Czech Republic and Romania). The trend in the majority of legislations is not to limit the incitement involving a clear and present danger, but to include both direct incitement and that which is only implied.

Some laws require that the intentional element is met (Cyprus, Portugal, Ukraine), while others recognize that this offense can be committed through negligence (Ireland, Malta, Netherlands, Norway and United Kingdom). Penalties provided range from 1 year (Belgium, France, Netherlands) to 10 years’ imprisonment (Albania).

We can also note that the advocacy or incitement to racial hatred is often criminalized along with hatred on religious grounds; they can be a distinguished course if the object of the call is clear. The result may be different because in some states the call for religious hatred is punishable only if accompanied by a threat (United Kingdom); and the Venice Commission recommended not to criminalize criticism of a religion or a religious insult[6]. However, the call for hatred is often directed at persons or groups for both racial and ethnic origin, and for their religion, given the frequent cases of intersection between race/ethnicity and religion.

Of course, these provisions prohibiting the call or incitement to hatred are part of more global policies or legal instruments aimed at combating discrimination; the application of aggravating circumstances was gradually added when the common law crimes were racially motivated and, therefore, are more severely punished; they remain distinct from hate speech advocacy or incitement, but are supplementing them in the combat against discrimination.

6. Offences inspired by racism are different from other types of criminal behavior in that they are aimed at groups of people or their members defined by reference to race, color, descent, national or ethnic origin and, according to some international documents, by religion.

The term of race is mentioned, because it is used by those who circulated racist theories, although it was proved to have no scientific basis; to show that it is not accepted, some legislations refer to alleged or presumed race.

The EU Council Decision of 2008 states that religion is used as a term of reference, because criticism directed against religion may in fact be motivated by racist or xenophobic intent, to the extent that religious elements are used against an ethnic group; reference to religion is envisaged to cover conduct which constitutes a pretext used to act in reality against groups or persons defined by reference to race, color, descent, or national or ethnic origin. It is the expression of the concern to distinguish a critique of a religion motivated by hatred that can be equated to racism from the one that belongs to the debate of ideas and philosophical concepts, which has to be protected under the freedom of expression.

7. Of course, distinguishing between the racist speech and the expression of views is sometimes difficult; as stated by the European Court of Human Rights, freedom of expression includes even the most unacceptable views that may embarrass or shock the conscience of others[7].

In its Recommendation No.20 (1997), the Committee of Ministers of the Council of Europe defined “hate speech” as “covering every form of expression that spreads, incites racial hatred, promotes or justifies racial hatred, xenophobia, anti-Semitism and other forms of hatred based on intolerance, including intolerance which is manifested in the form of aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, immigrants and those resulting from emigration.”

In its turn, in 2002, the European Commission against Racism and Intolerance (ECRI) adopted Recommendation No.7 on national legislation against racism, demanding that “the law should punish the following conduct as criminal offense if it is performed intentionally: a) public incitement to violence, hatred, or discrimination; b) public insults or defamation; c) threats against a person or a group of persons on grounds of their race, color, language, religion, nationality or ethnic origin or national; d) the public expression, with a racist purpose, of an ideology which claims the superiority of a group of people on grounds of race, color, language, religion, nationality or ethnic origin, or which slanders or denigrates a group of people; e) public denial, gross minimization, justification or apology, with a racist purpose, of crimes of genocide, crimes against humanity or war crimes”.

The Parliamentary Assembly of the Council of Europe proposed, in its Recommendation No.1805 (2007), as definition of hate speech “a statement that calls for subjecting a person or group of persons to hatred, discrimination or violence on account of their religion or any other reason.” The Parliamentary Assembly made a new appeal in its Resolution 1754 of 2010 by inviting States to apply criminal penalties according to their law against public incitement to violence, to racial discrimination and intolerance, including Islamophobia, and, if no such legislation exists, to introduce provisions of this kind in their criminal law and implement the recommendation of the Committee of Ministers 20/1997.

After 2003, in several decisions, the European Court of Human Rights has addressed the issue of incitement to hatred, understanding by the hate speech “any form of expression which propagates, incites, promotes or justifies hatred based on intolerance (including religious intolerance”[8]. In another case, the Court took into account the nature of artistic expression and did not find a violation of the Convention of 1950, showing that even if some passages of certain poems seem to be calls for the use of violence, their artistic nature and their very little impact allow them to be considered less as a call to rebellion and more as an expression of disappointment with the difficult political situation[9].

We note that, in its decisions, the Court takes into consideration the purpose aimed at by the one who is expressing incitement, the context in which it occurs, people who are expressing it and those to whom it is addressed, and the potential impact of the expression.

In its general recommendation No. 30 of 2005 (discrimination against non-citizens), the Committee on the Elimination of Racial Discrimination recommended the States Parties to the Convention of 1965 to take special consideration of hate speech and racial violence and to take decisive measures to counter any tendency to target, stigmatize, make the subject of a stereotype or profile, on the basis of race, color, descent, and national or ethnic origin, members of non-citizens groups, especially by politicians, officials, educators and media, on the Internet or other communication networks.

We retain all forms of expression or statements which propagate, incite hatred or discrimination against a person or a group, or justify it, that defame, threaten, or give expression to an ideology of superiority of a group of people against others on grounds of race, ethnic origin or religion, or intolerance justified racially, ethnically or religiously as common elements of these definitions and descriptions. It is necessary to separate the appeal to hatred from the one to violence, in order to comply with the Covenant on Civil and Political Rights, considering them to be two separate offences. In European countries, it is estimated, based on the intention and the message behind the denial of Holocaust or genocide, that they amount to indirect incitement to hatred.

We must distinguish between the debate of ideas, opinions, even the most controversial ones, that aim to transform the society, its institutions and its way of life, and the discourse with racist content which does not concern a debate with speakers and arguments, but aims to propagate, incite, promote, or justify hatred or superiority over another group on account of race or ethnicity, or which contains a public appeal to discriminatory behavior or violence against persons belonging to such groups, aimed at triggering a hostile reflex[10]. These types of action involve the intention to produce such consequences, although the hypothesis of imprudence of the author can not be excluded, without making such a speech excusable. We note that sometimes even a rhetoric debate of ideas can skid to assign a person or a group negative features, , thus making them subject to hatred or discrimination.

To qualify a speech as racist requires taking into consideration its context, as well as evaluating the effect pursued, its impact on those to whom it is addressed, especially the context in which it was issued, which means evaluating each case depending on its specific elements. In this respect, the European Court of Human Rights adopted a meticulous analysis of the facts alleged, considering, for example, that the mere fact of defending Sharia during a TV show, without calling for violence to impose it, does not constitute a hate speech[11]; the Court unequivocally condemned incitement to racial hatred, considering that the offensive and disparaging remarks made by a group of young members or the extremist supporters of the Ku Klux Klan with regard to immigrants and ethnic groups established in Denmark con stituted more than an insult to members of targeted groups[12]. In this case, the Court has given a different treatment to the journalist who broadcast these remarks, bearing in mind that he exercised his freedom of expression for public information without a racist purpose. The Committee on the Elimination of Racial Discrimination held, after examining the Communication on the Supreme Court of Norway’s decision of not-guilty on the march and speeches in honor of Nazi Rudolf Hess and hatred against Jews, that this decision was a violation of the Convention of 1965 on the Elimination of All Forms of Racial Discrimination[13].

In another case, the European Court considered a complaint of a Belgian citizen, president of the National Front, convicted by his country's courts for incitement to discrimination, segregation, or hatred towards the immigrant community in Belgium in leaflets which relied on freedom of expression. In its decision, the Court states that “acts committed against persons by insults, ridicule or slander, or against parts of specific groups of its population, or incitement to discrimination, as was done in this particular case, are sufficient for the authorities to privilege the fight against racist discourse against irresponsible freedom of expression that harms the dignity, or even the security of these parties or these population groups. Political speeches inciting hatred based on racial, ethnic or cultural prejudice is a threat to social peace and political stability in democratic states”. The Court added that “it is of paramount importance that politicians, in their speeches to the public, avoid broadcasting such words that promote intolerance”[14].

The Program of Action adopted in 2001 by the World Conference against racism, racial discrimination, xenophobia and intolerance highlighted the role of politicians and political parties in the fight against racism and encouraged such parties to take concrete measures to promote equality, solidarity and non-discrimination in society, especially through the adoption of internal codes of conduct, so that their members refrain from public statements and actions that would invite or induce discrimination and racism.

It is estimated that “incitement” to hatred or racial discrimination goes beyond information, ideas or criticism, pamphlets, jokes, cartoons, opinions, which are not characterized by the desire to incite discrimination, segregation and violence[15]. We also believe that the application of the concept of “clear and present danger” (that incitement should actually be followed by violence) would unacceptably limit the scope of criminal acts and would open even more the way to arbitrary interpretations, which is already not excluded by the existing provisions.

At the same time, it is accepted that critical expression of ideas in the context of public debate of ideas, as well as the expression of shocking opinions is not a violation of human rights. Thus, in the case of Klein v. Slovakia, the Court held as violation of the Convention the conviction of a journalist for the harsh criticism of an archbishop that proposed a ban on a movie channel[16]. The Court also accepted that some expressions, as shocking as that of attributing religious significance to an earthquake and assigning the blame for this to a religious community, do not incite hatred and violence against the community[17].

8. There is also the danger that banning racist speech may be used for other purposes, especially to unacceptably restrict the freedom of speech and criticism of government policy, thus making this ban an instrument of political struggle, while the reason for the ban is the protection of human rights. In this respect, the Venice Commission of the Council of Europe for Democracy Through Law stated:

“The application of legislation regarding hatred must be assessed to evaluate the results (of it) so that the potential restrictions to protect minorities against abuses, extremism and racism should not have the perverse effect of reducing to silence the opposition and the dissenting voices of minorities and strengthening of political discourse and of the dominant social and moral ideology”[18].
These difficulties and dangers should not be regarded as an obstacle to enforcement of international law and national laws that prohibit hate speech. This often precedes acts of discrimination, intolerance and even violence against people from different ethnic groups, immigrants, refugees or asylum seekers.

Despite the difficulties it involves, this dilemma must be solved so as to protect human values, freedom of expression and freedom from incitement to hatred or to discrimination based on race, ethnicity or religion, all of them being human rights enshrined in the documents generally accepted in the international law.

There are certainly some guidelines, practices, examples, but the solution should be found in each case, taking into account the specific elements: the purpose of the person who delivers the speech, her/his place in society, to whom the speech is addressed, the context in which it takes place, and the impact which its expression can generate.

Beyond the decision which may be adopted in a particular case, the problem must be addressed in a broader framework, including educating the entire population and creating the climate to exclude such acts or to produce the reaction to reject them in a democratic society that respects and promotes human values.

Bibliography:

1. Anne Weber. “Manuel sur le discours de la haine” (Discourse on the hate speech). Publishing Editions, Conseil de l'Europe, 2010.
2. Handyside v . United Kingdom, Vincent Berger, The Jurisprudence of the European Court of Human Rights, 6^th. ed. Dalloz, 1998, pp. 1117-1122.