Navi Pillay, the United Nations High Commissioner for Human Rights, gave a talk on freedom of expression and hate speech during a recent visit to London. Pillay’s talk, entitled “Freedom of Expression and Hate Speech: What International Human Rights Law Says,” preceded the launch of the Plan of Action on the prohibition of incitement to national, racial or religious hatred, which aims to give States a better understanding of how to implement existing international law to appropriately balance the competing interests of freedom of expression and protection against hate speech.
Speaking to a full house at the London School of Economics in February, Pillay highlighted the need for States to maintain a careful balance between prohibiting hate speech and ensuring freedom of expression. Their duty to curb hate speech stems from the concern that it can incite violent action. As Minority Rights Group has documented, official tolerance or encouragement of hate speech greatly increases the likelihood of atrocities in a State.
At the same time, free speech is a fundamental right, such that any restriction on the freedom of expression “must remain an exception.” Moreover, restrictions on speech are often misused. Pillay’s office has documented “instances where members of minorities are persecuted through the abuse of vague or counter-productive legislation.” The government of Pakistan, for example, has used blasphemy laws to silence religious minorities.
Pillay provided an overview of the two key international human rights standards governing hate speech: the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of Racial Discrimination (ICERD).
Article 19 of the ICCPR guarantees the rights to freedom of opinion and freedom of expression. Any restrictions on free speech must be “provided by law”, and be necessary for respect of the rights or reputations of others, or for the protection of national security, public order, or public health or morals (Article 19(3)). Under Article 20, however, States are specifically obliged to prohibit two particular types of speech: war propaganda; and hate speech, namely “[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” Through its decisions and comments, the Human Rights Committee (the supervising body of the ICCPR) “seeks to balance these two articles,” Pillay explained, and thereby balance the competing interests of protection against hate speech and the right to freedom of expression.
The prohibitions on hate speech contained in ICERD are broader than those contained in the ICCPR. Article 4 of ICERD requires State parties to take “immediate and positive measures” to eradicate and criminalise (i) incitement to racial discrimination, (ii) dissemination of ideas based on racial superiority or hatred, (iii) acts of violence or incitement to such acts against any race or ethnic group, (iv) the provision of assistance to racist activities, and (v) participation in organisations or activities which promote or incite racial discrimination. Pillay noted that the CERD Committee, which monitors the implementation of ICERD, has “tended to apply the prohibition on incitement more broadly” in comparison to the practice of the Human Rights Committee.
When does speech become hateful?
Pillay next described a major challenge in implementing international law on freedom of expression: the difficulty of distinguishing between hate speech and speech which is “merely offensive”. Pillay reviewed the CERD Committee’s guidance on this issue. Five factors, she explained, help determine whether a statement is hateful: 1) the severity of the statement (including a consideration of who made the statement, its content, timing, the likeliness of harm, and imminence of danger); 2) intent (whether the speaker intended to discriminate); 3) the context in which the statement was made (for example, whether there is a history of violence or persecution); 4) causation (whether the speaker actually caused harm); and 5) whether the speech targets ideas or humans.
Pillay did not explain how best to apply these five factors. Rather, she stated that we have “a number of slightly different regional and national approaches” to applying them, and that determinations of hate speech must be made on a case-by-case basis. She added that it is essential to distinguish between forms of speech which should constitute a crime, those which should only give rise to a civil claim, and those which are merely regarded as intolerant or disrespectful. Unfortunately, she did not explain how to differentiate between these legal categories.
Pillay did, however, highlight the problem of defining hate speech by using the example of blasphemy laws (namely, laws prohibiting the defamation of religion). Certain States argue that religious beliefs should be protected from hate speech just as people are. The Office of the High Commission for Human Rights (OHCHR) strongly disagrees, on the basis that human rights law protects individuals and groups, not belief systems. When drafting guidance on hate speech, the Human Rights Council had struggled to come to agreement on whether to prohibit blasphemy. However, on 24 March 2011, the Human Rights Council broke its deadlock via “landmark” Resolution 16/18, which condemned any advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence against people – not belief systems - and called on States to take concrete steps to foster an environment of religious tolerance, peace and respect.
The Rabat Plan of Action
Pillay described the development of a new tool to help States conform their speech laws to international standards. Starting in 2011, the OHCHR held a series of workshops to provide further clarity on the implementation of international human rights standards on hate speech. This process culminated with the adoption of the Rabat Plan of Action in October 2012. The Plan of Action was presented by a group of experts on 21 February 2013 in Geneva, Switzerland.
The Plan of Action sets out a list of conclusions and recommendations for all stakeholders – States, the UN, NGOs, political parties, and the media. In particular, the Plan of Action contains six thresholds that must be met for speech to be criminally prohibited: context, the speaker’s standing, intent to advocate or incite, content, scope or extent, and imminence. It recommends that criminal sanctions be a last resort, and that civil and administrative sanctions and remedies also be considered.
While the Plan of Action provides useful general guidance, it does not clarify how States should categorize certain forms of speech in concrete cases. Neither does the Plan of Action describe when certain sanctions should be applied. In both her lecture and the subsequent Question and Answer session, Pillay acknowledged this lingering ambiguity, questioning the desirability of a uniform approach across States. The Plan of Action does not provide a ‘one-size-fits-all’ solution to dealing with offensive speech. Whether a form of speech constitutes incitement to discrimination must ultimately be decided carefully, on a case-by-case basis.
The most valuable contribution of the Rabat Plan of Action is its emphasis of minority rights. The Plan of Action underscores the danger of States using speech restrictions to persecute minorities. A “dichotomy of (1) no prosecution of ‘real’ incitement cases and (2) persecution of minorities under the guise of domestic incitement laws seems to be pervasive” across States, the experts find. The experts criticize blasphemy laws, which certain States use to persecute religious minorities or dissenters. At the same time, the experts note, minorities often have weak access to justice when they are victims of incitement. The experts recommend that States provide legal assistance to minorities and other vulnerable groups.
Finally, the Plan of Action reminds readers that States must also use non-legal methods to combat incitement to hatred against minorities and other vulnerable people. The media, for example, plays a major role in combating discrimination. Minorities must be given a space in the media to voice their opinions and views, promoting a better understanding of their groups and sharing their perspectives.
The Plan of Action is therefore a useful and important tool which civil society and other stakeholders can use to best protect minority rights. As the political will to combat hate speech continues to vary across States, and in light of the inevitable ambiguities in the Plan of Action, the challenge of developing national standards in accordance with the precarious international consensus becomes more important than ever.