1 Right to freedom of speech and expression is one of the most essential liberties recognized by the democratic States. The concept of liberty has been primarily influenced by the principle of individual autonomy. The liberal theory of free speech views speech as an intrinsic aspect of autonomous individual, hence any restriction on exercise of this liberty is always subject to judicial scrutiny. The objective of free speech in a democracy is to promote plurality of opinions. The importance of allowing expression, howsoever, unpopular has been stressed by J.S. Mill in the following words, in his work ‘On Liberty’:
If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind. 31
2 The importance of allowing diversity of opinion has guided the principles of free speech. Thus, even a speech that is ‘vehement, caustic, and sometimes unpleasantly sharp’32 is protected from State intervention.
3 Hate speech is an expression which is likely to cause distress or offend other individuals on the basis of their association with a particular group or incite hostility towards them. There is no general legal definition of hate speech, perhaps for the apprehension that setting a standard for determining unwarranted speech may lead to suppression of this liberty.
4 The philosopher Jeremy Waldron argues that, while purely offensive speech may not justify restrictions, there is a class of injury, amounting to more than hurt sentiments but to less than harm, in the sense of physical injury, that demands restriction in democratic frameworks. Where speech injures dignity, it will do more harm than simply offend its target. It would undermine the “implicit assurance” that citizens of a democracy, particularly minorities or vulnerable groups are placed on the same footing as the majority.33 While the right to criticise any group should continue to exist, speech that negates the right of a vulnerable group should be regulated.
5 Free speech has always been considered to be the quintessence of every democracy. The doctrine of free speech has evolved as a bulwark against state’s power to regulate speech. The liberal doctrine was a measure against the undemocratic power of the state. The freedom of expression was one of the core freedoms that were incorporated in the Bill of Human Rights.34 The greater value accorded to the expression, in the scheme of rights, explains the reluctance of the law makers and judiciary in creating exceptions that may curtail the spirit of this freedom. Perhaps, this is the reason behind the reluctance in defining hate speech.
An Overview of International Legal Regime on Hate Speech
6 The working of the free speech doctrine very often points to the failure of this freedom in addressing the discriminatory, hostile and offending attitudes of some individuals and some small strata of the society. It was this viewpoint that led to the prohibition of ‘advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’35 under article 20(2) of the International Covenant on Civil and Political Right, 1966 (hereinafter ICCPR)36. Similarly, articles 4 and 6 of the International Convention on the Elimination of All Forms of Racial Discrimination, 1966 (hereinafter ICERD)37 prohibits ‘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’ and mandates the signatory states to provide effective remedies and protection against such actions.
7 The issue of hate speech has assumed greater significance in the era of internet, since the accessibility of internet allows offensive speeches to affect a larger audience in a short span of time. Recognising this issue, the Human Rights Council’s ‘Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression’38 on content regulation on internet, expressed that freedom of expression can be restricted on the following grounds39, namely:
8 The analysis of hate speech in different countries suggests that despite not having a general definition, it has been recognised as an exception to free speech by international institutions and municipal courts.
European Union and United Kingdom
9 European Court of Human Rights (hereinafter ECtHR) has contributed immensely in developing jurisprudence on hate speech. Article 1040 of the ‘European Convention of Human Rights’41 (hereinafter ECHR) guarantees right to freedom of expression, subject to certain ‘formalities, conditions, restrictions or penalties’ stipulated in clause 2 of this article.42 Article 17 of the Convention prohibits abuse of rights by ‘any State, group or person.’43
10 ECtHR while determining cases related to hate speech examines it on the touchstone of the Convention values. If the act in question negates the rights guaranteed under the Convention, it is declared impermissible pursuant to article 17 of the Convention.44 The Council of Europe’s Committee of Ministers to Member States on Hate Speech has defined ‘Hate Speech’ as:
… the term ??hate speech?? shall be understood as covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin. 45
11 According to the Council of Europe’s Manual on Hate Speech, hate speech involves multiplicity of situations:
Firstly, incitement of racial hatred or in other words, hatred directed against persons or groups of persons on the grounds of belonging to a race; secondly, incitement to hatred on religious grounds, to which may be equated incitement to hatred on the basis of a distinction between believers and non-believers; and lastly, to use the wording of the Recommendation on “hate speech” of the Committee of Ministers of the Council of Europe, incitement to other forms of hatred based on intolerance “expressed by aggressive nationalism and ethnocentrism”. 46
12 Pluralism, tolerance, peace and non-discrimination have been termed non-derogatory values by the ECtHR in ascertaining the extent of free speech allowed under the Convention. Speech propagating religious intolerance, negationism, homophobia etc. has been excluded from the ambit of article 10 of ECHR and the importance of responsible speech in a multicultural society has been stressed by the court in several cases.
Tests for determining hate speech:
13 Three tests have been adopted by the courts while recognising whether a speech amounts to hate speech or not. Once it has been established that there has been an interference with freedom of expression, the courts resort to a three-fold analysis to determine the legitimacy of such interference:47
(a) Is the interference prescribed by law?
The law that allows limitation of article 10 of ECHR must be prescribed by the statute and must be precise so that the citizens can regulate their conduct in accordance with the law and foresee the consequences of the impermissible conduct.48
(b) Is the interference proportionate to the legitimate aim pursued?
It has been opined by the court in Hand yside v. United Kingdom,49 that the restrictions imposed by the State under article 10(2) on freedom of expression must be ‘proportionate to the legitimate aim pursued.’
(c) Is the interference necessary in a democratic society?
This test requires a careful examination of the fact to determine whether the freedom was limited in pursuance of a legitimate social need and in order to protect the principles and values underlying ECHR.50
14 In Handyside,51 the court remarked that every restriction on article 10 must be carefully scrutinised as every offensive speech is not illegitimate. This neutrality approach that puts all kinds of speech on the same platform is an extension of the liberal view of free speech.
15 However, in recent years, ECtHR has moved away from this strictly neutral approach. The interference with freedom of expression is not solely judged on the ‘legitimate aim’ test but also whether such interference was necessary in a democratic society. One of the criticisms of free speech doctrine is that in an unequal society free speech often conflicts with the commitment to non-discrimination. Affording protection to all kinds of speech, even offensive ones, many times vilifies the cause of equality. European Human Rights jurisprudence has been making an attempt to harmonise these two principles.
16 The ‘European Commission against Racism and Intolerance’ in its Recommendation No. 7 expressly stipulates that exercise of freedom of expression ‘may be restricted with a view to combating racism.’52 Any such restrictions should be in conformity with the ECHR. The European Commission for Democracy Law constituted to review laws of European country remarked that every religious insult cannot be penalized until and unless it has an ‘element of incitement to hatred as an essential component’.53 In recent years a shift from neutrality principle towards ‘responsible speech’ has been discernible in the ECtHR decisions. Though hate speech has not been defined by ECtHR, it has been undoubtedly established54 by the Court that such a speech is not protected under article 10.55
Racial and Religious Hate:
17 In a multicultural society discrimination based on race and religion is one of the parameters on which extremity of speech is measured. The Court in Jersild v. Denmark56 reversed the conviction of a journalist who interviewed a group called ‘Greenjackets’ to expose their racist attitude towards a minority section of the society. The Denmark Supreme Court held that the defamation and offence caused by the racist content of the interview outweighed the right of public to be informed; and therefore, could not be protected under right to freedom of expression. ECtHR reversed this decision and held that:
The picture which the applicant’s programme presented to the public was more that of drawing attention to racism, intolerance and simple mindedness, exemplified by the remarks in question, than an attempt to show disrespect for the reputation or rights of others. In such circumstances the Commission finds that the reputation or rights of others, as legitimate aims for restricting the freedom of expression, carry little weight. 57
18 In the case of Anthony Norwood v. the United Kingdom,58 the court held that the applicant’s act of displaying a poster on his window with the words “Islam out of Britain – Protect the British People” and ‘a symbol of a crescent and star in a prohibition sign’59 portrayed racist bias and intolerance. Such an attack on a religious group was considered contrary to principles of non- discrimination and tolerance by the court.
19 Discrimination based on sexual orientation has also led to decisions that protect sexual minorities. In Vejdeland v. Sweden,60 ECtHR upheld the decision of the Sweden Supreme Court wherein the applicants were found guilty of spreading homophobic statement. It remarked that even though offending remarks are protected under the ambit of hate speech, ‘the real problem of homophobic and transphobic bullying and discrimination in educational settings may justify a restriction of freedom of expression’.61
20 The Supreme Court of Sweden acknowledged the applicants’ right to express their ideas while at the same time stressing that along with freedoms and rights people also have obligations; one such obligation being, as far as possible, to avoid statements that are unwarrantably offensive to others, constituting an assault on their rights. The Supreme Court thereafter found that the statements in the leaflets had been unnecessarily offensive.
21 Historical consciousness is essential for recognising instances of denial of basic rights to certain groups, in the past. Negationism is one of the grounds on which ECtHR has in recent years limited article 10. In M’Bala M’Bala v. France,62 the court held that anti Semitism and Holocaust denial could not be protected under article 10. Such a speech is excluded from the protection of the Convention not only when it is sudden and direct but also when it was presented as an artistic production.
Threat to Democratic Order:
22 Advocating a totalitarian doctrine was considered incompatible with the values of the Convention. In Schimanek v. Austria,63 conviction of the applicant on account of such speech was declared a legitimate interference under article 10, necessary for the protection of democratic order.
Hate Speech and Internet:
23 While internet has made the globe a small and connected place, it has also created a space for unregulated forms of expression. In Delfi v. Estonia,64 the applicants approached the court against the order of the Estonian court, wherein the applicants (owners of the internet news portal) had been made liable for user generated comments posted on their website. This was the first case where the court had to examine the scope of article 10 in the field of technological innovations.
24 The court observed that while internet is an important tool for disseminating information and opinions, it also serves as a platform for disseminating unlawful speech. The court emphasized on the need to ‘harmonise these two conflicting realities’65 as the freedom of expression cannot be exercised at the cost of other rights and values enunciated in the Convention. The court upholding the decision of the Estonian Court held that:
… in cases such as the present one, where third-party user comments are in the form of hate speech and direct threats to the physical integrity of individuals, as understood in the Court’s case-law, the Court considers … that the rights and interests of others and of society as a whole may entitle Contracting States to impose liability on Internet news portals, without contravening article 10 of the Convention, if they fail to take measures to remove clearly unlawful comments without delay, even without notice from the alleged victim or from third parties. 66
25 The content and context of the expression plays an important role in analysing the permissibility of the speech. The court takes into account various factors before excluding speech from protection under the Convention like, nature of remarks, dissemination and potential impact of remarks, status of targeted person, status of the author of the remarks, nature and severity of penalty imposed (to determine the proportionality of the interference) etc.67
26 The First amendment of the U.S. Constitution forbids the Congress from making law prohibiting the exercise of free speech. The speech protection doctrine in United States relies on two important assumptions, firstly,68 that there should be equality in the marketplace of ideas and secondly,69 the government cannot be given the power to differentiate between good and bad speech. The stringent protection afforded to speech is one of the hallmarks of the United States Constitution.70
27 Chaplinsky v. New Hampshire,71 was an important case where the United States Supreme Court differentiated between different classes of speech and held that there are certain forms of speech like fighting words, obscenities, certain profane and slanderous speech, which are excluded from the protection under First Amendment. Thus, the court held that laws restricting such ‘low value speech’ were constitutional and upheld the conviction of Chaplinsky under a State law that penalised offensive and derisive speech.
28 Relying on Chaplinsky,72 the Supreme Court in Beauharnais v. Illinois73 upheld the conviction of Beauharnais under the State law prohibiting libel amounting to unrest or breach of peace on grounds of race, colour, creed or religion. The court considered such speech outside the ambit of the First amendment, observing that ‘such utterances are not essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality’.
29 Fighting words were narrowly construed in Cohen v. California74 to mean ‘those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.’75It was reasoned that the aim of the State cannot be to censor every controversial vocabulary so as to make conversation ‘palatable to the squeamish.’76
30 However, this case was overruled in New York Times v. Sullivan,77 where it was held that until and unless a malicious intent to defame with utter disregard to the truth was proved on part of the author of the speech, the speech could not be considered a violation of the First Amendment. The court opined that:
…rule compelling the critic of official conduct to guarantee the truth of all his factual assertions — and to do so on pain of libel judgments virtually unlimited in amount — leads to a comparable “self-censorship.”… the rule thus dampens the vigour and limits of the variety of public debate.
(i) Content Discrimination and Viewpoint Discrimination:
31 There have been two landmark cases that overturned legislations penalising hate speech. In R.A. V. v. City of St. Paul,78 the petitioner was charged for burning a cross on the family lawn of a black family under Minnesota’s Bias Motivated Crime Ordinance. The court in this case narrowly construed the fighting word doctrine laid down in Chaplinsky79. It was held by the court that content based prohibition of speech even for categories of unprotected speech is prohibited under the First Amendment. The ordinance was deemed invalid because it prohibited certain words on selective subject matter, i.e., on the basis of race, colour, creed, religion or gender. Such selectivity was considered as content and viewpoint discrimination; and therefore, invalid under the First Amendment.
(ii) Distinguishing Conduct and Expression:
32 There is a distinction between unlawful conduct and mere free expression. In Wisconsin v. Mitchell,80 a statute penalising hate crime was upheld by the court.81 The court distinguished this case from R.A. V.82 by differentiating between expression and conduct. It was held:
Nothing in our decision last term in R. A. V. compels a different result here. That case involved a First Amendment challenge to a municipal ordinance prohibiting the use of ??`fighting words’ that insult, or provoke violence, `on the basis of race, color, creed, religion or gender.'” … Because the ordinance only proscribed a class of ??fighting words?? deemed particularly offensive by the city i.e.., those ??that contain . . . messages of `bias-motivated’ hatred,” … we held that it violated the rule against content-based discrimination… But whereas the ordinance struck down in R.A.V. was explicitly directed at expression (i.e., ??speech?? or ??messages??), the statute in this case is aimed at conduct unprotected by the First Amendment.
(iii) Test to qualify speech as hate speech:
33 In order to qualify the speech as hate speech, the expression must qualify the clear and present danger test expounded in Schenck v. United States83. The clear and present danger test was reformulated in Brandenburg v. Ohio84 to imminent threat of lawless action test. The Court remarked that ‘freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action’.
34 Canadian Charter of Rights and Freedoms guarantees freedom of thought, belief, opinion and expression subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.85 Pursuant to this, section 319 of the Criminal Code of Canada, RSC 1985 sanctions public incitement of hatred.
35 Some important decisions on hate speech in Canada are R. v. Keegstra;86 R. v. Andrews;87 and Canada Human Rights Commission v. Taylor.88 In Keegstra, the Canadian Supreme Court held that:
Parliament has recognized the substantial harm that can flow from hate propaganda and, in trying to prevent the pain suffered by target group members and to reduce racial, ethnic and religious tension and perhaps even violence in Canada, has decided to suppress the wilful promotion of hatred against identifiable groups. Parliament’s objective is supported not only by the work of numerous study groups, but also by our collective historical knowledge of the potentially catastrophic effects of the promotion of hatred. Additionally, the international commitment to eradicate hate propaganda and Canada’s commitment to the values of equality and multiculturalism in ss. 15 and 27 of the Charter strongly buttress the importance of this objective. 89
(iv) Tests to determine limitation on freedom of expression:
36 The court in Keegstra90 referred to test laid down in R. v. Oakes,91 to determine the proportionality of the limitation to the objective sought to be achieved. The three steps to be followed to adjudge the proportionality of the restriction in Oakes92 were:
37 In Saskatchewan (Human Rights Commission) v. Whatcott,93 the court laid down three tests to determine whether an expression could qualify as hate speech or not. Firstly, courts must apply the hate speech prohibitions objectively by applying the test of a reasonable person. Secondly, the legislative term “hatred” or “hatred or contempt” must be interpreted to mean the extreme form of the emotions. Thirdly, the effect of the expression on the targeted group should be determined by the Court.
38 Canadian laws attempt to restrict false and discriminatory statements that expressions that are likely to lead to breach of peace. In R. v. Zundel94 the Court observed that publishing and spreading false news that was known to be false is likely to cause injury to public interest. This should be prevented as it is potentially harmful to the society and multiculturalism in Canada. In Ross v. New Brunswick School District No.15 95, the Court held that anti-semitic writings and statements contribute to an invidiously discriminatory or “poisoned” education environment.
39 Section 16 of the South African Constitution guarantees freedom of expression. However, this freedom is subject to limitations under section 16(2), namely, ‘(a) propaganda for war; (b) incitement of imminent violence; or (c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm’. The South African Constitution expressly recognizes hate speech as an exception.
40 In a recent case, the Equality Court in South Africa in Nomasomi Gloria Kente v. Andre van Deventer96 awarded damages to a domestic worker for being subjected to hate speech. Section 10 of the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000 prohibits a person from publishing, propagating, advocating or communicating words based on one or more prohibited grounds, against any person that could be construed demonstration of a clear intention to be hurtful, harmful or incite harm, promote or propagate hatred.