As a part of the European Commission’s preparation for the Annual Colloquium, under the rubric of “Hate Speech”, the following question was posed:
What would be the most efficient ways to tackle the trivialisation of discrimination and violence that arises through the spreading of hatred, racism and xenophobia, in particular online?
The answer that I have long held is that of a need for recalibration so that there is no bias in favour of new claims, touted as rights, against enshrined rights that are coupled with responsibilities. So, in an effort to put forward some form of balanced approach, I consider that the question should be answered for the EU along the following lines; rather than the manner espoused for the so far ill-fated draft Equal Treatment Directive that has lain inert before the European Council now for years.
Education in correct principles, online and generally, in the long term, must be the answer to Question 31. In the immediate term, the answer is in effective but proportionate civil remedies and criminal sanctions. Civil remedies form part of educative processes. Criminal sanctions are a last resort for those who refuse to be educated.
The relevant principles are found in the covenants by which member states are bound. Adherence to those principles must be understood as the price paid for the benefits of living in a free and democratic Europe.
The Preamble and Articles 9 and 10 of the European Convention for the Protection of Human Rights and Freedoms, First Protocol are a starting point.
According to the Preamble, the Convention is inspired by the Universal Declaration of Human Rights; a reaffirmation of a “profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained … by effective political democracy and … observance of the Human Rights upon which they depend; …”
Article 9 provides, relevantly, as follows:
“1 Everyone has the right to freedom of thought, conscience and religion; …
2 …subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
The emphasis in Article 9 is upon freedom of conscience, religion and belief and their manifestation; the freedom of thought mentioned in that Article is further protected by Article 10, which relevantly provides:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. …
- The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, …”
The Articles remind us that freedoms carry duties and responsibilities. Freedoms under Articles 9 and 10 are, therefore, subject to “national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others …”
Appropriate remedies and sanctions protect rights and freedoms conferred and enforce duties and responsibilities owed to the community. A measured approach to remedies and penalties can encourage social cohesion; enhance rather than inhibit freedoms of thought, belief and speech.
Effective but proportionate remedies and sanctions
The basis for any liability must be clearly defined. The Rule of Law requires that liability should be well-defined and knowable before conduct is the subject of complaint. Liability should be for conduct and not for thought or belief; for verifiable harm and not for subjective feelings or perceptions. No liability should attach to communications where the content is true, is appropriate social commentary or is part of political dialogue.
States should criminalise only the most extreme cases. Care must be taken not to permit the law to become an instrument of oppression or be used for the suppression of freedoms, including the unpopular or unfashionable. There should be a free market of ideas, subject only to the limitations identified in the covenants.
The words “hatred”, “racism” and “xenophobia” are difficult to define for legislative purposes. They are readily manipulated to suppress unpopular opinions. Too wide definitions of liability suppress freedoms of thought, belief and speech. Imprecise definitions multiply litigation. Too narrow definitions fail to protect the community as required by Articles 9 and 10.
A law, to balance freedoms and uphold responsibilities, must provide for effective but proportionate civil remedies and criminal sanctions. Civil remedies can form part of the educative processes. Criminal sanctions must only ever be a last resort for those who refuse to be educated. As a guide, it is submitted that the following gradations are appropriate:
- Conduct or communications that merely offend – no legal action
- Conduct or communications that injure reputation – personal civil remedies
- Conduct or communications that incite violence or cause social disruption – civil and criminal sanctions.
At each level of regulation, the court should have at its disposal remedies that prevent or ameliorate harm. Injunctions and orders to publish apologies are ancillary to orders for the payment of quantified damages in civil cases; fines and imprisonment in criminal cases.