Hate speech: new European perspective

07 December 1999

Helen Darbishire¹

For many members of minority groups, the problem of hateful or inciteful speech in the media is a sensitive question. It is also a very difficult issue for those who want to promote the right to media freedom and at the same time protect members of minority groups from incitement to hatred.

The classic definition of "hate speech" is expression which incites hatred, particularly racial, national, or religious hatred. It must be recognized that some speech which is undoubtedly offensive, does not constitute hate speech, even though it may contribute to a climate of prejudice and discrimination against minorities. Such speech would include the tendency by media to report the bad news about minorities when it affects the majority population, for example noting when the perpetrator of a crime is the member of a minority. There is of course the reality that bad news makes the best headlines, although often the mainstream media overlook the bad news when it affects the minority population. One example of this is the low level of reporting on attacks on Roma in Slovakia. Equally, depicting members of minorities through clichéd and stereotyped images might be offensive but is not generally regarded as hate speech. Biased or poor journalism should be addressed through, for example, training programs to promote greater professionalism in reporting.

International legal provisions

International law encourages states to introduce legislation which penalizes incitement to hatred. There are two main instruments which require this of states: the International Covenant on Civil and Political Rights (ICCPR) at Article 20 and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD). Article 20 of the International Covenant on Civil and Political Rights states:

1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.

CERD at Article 4(a) requires that States "shall declare an offence punishable by law all 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 group of persons of another colour or ethnic origin". Legislators introducing these provisions into domestic law and judges hearing prosecutions for speech crimes need of course to balance the need to curb incitement to violence with the fundamental importance of the right to freedom of expression, as set forth in Article 19 of the ICCPR or Article 10 of the European Convention on Human Rights. The European Court of Human Rights has often stated that when evaluating restrictions on freedom of expression, and media freedom in particular, it is faced "not with a choice between two conflicting principles but with a principle of freedom of expression that is subject to a number of exceptions which must be narrowly interpreted."²

Furthermore, it should be stressed that the provisions of international law, although reflected in the penal codes of many European states, are not without controversy. The "Anglo-Saxon" model promoted in particular in the United States and the UK and advocated by many freedom of expression organizations, is that only the narrowest restrictions which are absolutely necessary should be imposed. Restrictions should only be imposed when there is a clear danger of imminent violence arising from the speech and there is no other reasonable means of preventing that violence. Otherwise, it is strongly argued that the best antidote to speech is more speech; intolerant speech can be countered, ridiculed and shunned by tolerant speech. Since it is improbable that expression in the media, particularly the print media, could directly incite violence, such expression should be excluded from hate speech laws.

In continental Europe, however, the legacy of the Second World War is still strong and European legislation and practice are directed to penalizing speech which it is feared might promote hatred. The historical roots of such restrictions perhaps explain why in countries such as France or Germany, much attention is given to the speech of extreme right-wing leaders such as Jean Marie Le Pen, although it might seem that the problems of day-to-day racism against minority communities would merit more attention. Concern is also increasingly expressed that by forcing extremists to moderate their speech (Le Pen has recently been prosecuted for saying that the Holocaust was merely a "detail of history"), one makes their messages more palatable to the electorate. With far-right political parties recently showing a high level of popularity in elections in Austria and Switzerland, such concerns are ever more pressing.

The role of the media

When considering the role of the media in promoting or combating the spread of hatred, a distinction should be made between state-funded and private media. State-funded media have a particular obligation under international law to non-discrimination, which must include ensuring that there is no discrimination on grounds of race, nationality, and religion in their coverage. For private media, this is a professional ethical consideration, although in many countries the private media are also bound by national legislation prohibiting hate-speech.

One of the biggest problems encountered in Europe in this decade has been incitement to hatred and war in government-controlled media. This was in particular the case prior to and at the beginning of the conflict in the former Yugoslavia.³ Such incitement is clearly a violation of international treaties which those governments are obliged to uphold. At the same time, if anti-democratic governments themselves engage in hate speech, there is very little likelihood that there will be prosecutions of the media. Anti-hate speech laws therefore simply don't work where they are most needed. This is once again an argument for engaging at the earliest possible juncture in alternative strategies to root out and combat hatred and discrimination.

The Jersild case

If the media is to address issues of hatred within its society, it must be free to report on the problem, perhaps interviewing and quoting those who are expressing hatred. This was the case when a Danish television programme broadcast the words of members of the Greenjackets, an extreme racist youth group. Those who were interviewed in the programme were prosecuted for their speech, but so was the journalist, Jens Olaf Jersild. Jersild took his case through the Danish domestic procedures to the European Court of Human Rights which ruled, in the case of Jersild v Denmark⁴ that the media should be free to report on hate speech and should not be prosecuted for transmitting expression, even if that expression is unlawful in the country concerned. This is particularly so when, as in this Danish case, the programme was made in the public interest to expose a problem. The Court found that Jersild's right to freedom of expression and information as protected in Article 10 of the European Convention on Human Rights (ECHR) had been violated. This is a very important ruling for all media professionals in Europe as it offers a significant measure of protection when reporting on debates on issues of racism, xenophobia and religious intolerance, as well as other matters of public interest.

Conclusion

There is a widespread recognition that prohibition of speech does not solve the underlying problems which lead to intolerance and discrimination. There are many actions which a state can take to protect individuals and groups from incitement to hatred, discrimination and violence, without ever having to address the vexed question of what is punishable speech. Such initiatives include education on tolerance; measures to eliminate discrimination in education, employment, and housing; particular measures to ensure no discrimination in government bodies or agents, such as the police, or in the judiciary; ombudspersons empowered to receive and act on any complaints; and rigorous investigation and punishment of all crimes motivated by racial, religious and national hatred. If all these measures have been thoroughly tried, and if a problem still exists, then restrictions on the right to freedom of expression become more tolerable. However, it should be noted that even in the established democracies of western Europe, the full application of all alternative measures cannot be said to have taken place. There exists therefore much room for action without infringing on media freedom, and without preventing the media from carrying out their role in ensuring that there is public debate on the problem of discrimination and racial violence in a society.

Endnotes:

1. Helen Darbishire is Media Law Program Manager for the Open Society Institute in Budapest.
2. Sunday Times v. the UK, (No. 1) judgment of 26 April 1979, Series A No. 30.
3. See Thompson, Mark, "Forging War", published by Article 19, London, 2nd Edition, 1999.
4. Jersild v. Denmark, judgment of 23 September 1994, Series A No. 298.