Part of the ongoing concern about racism and xenophobia in Europe is the phenomenon of hate speech, a complex issue that has been difficult for politicians to respond to in a united way. For a start, the definition of hate speech, at least in legal terms, is actually quite difficult to pin down. There is also big debate over how laws or action on hate speech can go hand in hand with rights regarding freedom of expression.
While there is plenty of agreement that hate speech is something society needs to eradicate, amid fears that it is fuelling racism and xenophobia, there are critics of efforts to criminalise it. There are also those who object to hate speech regulations being applied to the internet. Just what does constitute hate speech, for example, and what cases should be punished under the law?
One such critic, Sandy Starr, writing on the website Spiked, said: “Most countries already have laws that prohibit intimidation, assault, and damage to property. By creating the special categories of ‘hate speech’ and ‘hate crime’ to supplement these offences, and presuming to judge people’s motivations for action rather than their actions alone, we come worryingly close to establishing in law what the author George Orwell called ‘thought crime’.
Starr added: “Labelling speech that we disagree with ‘hate speech’, and seeking to prohibit it instead of taking up the challenge of disputing it, points to a world in which we resort to ‘protective stupidity’ to prevent the spread of objectionable ideas. Not only is this inimical to freedom, but it gives objectionable ideas a credibility that they often don’t deserve, by entitling them to assume the righteous attitude of challenging an authoritarian status quo. This is particularly stark when applied to the internet – where so many ideas float around, and many of these deserve no credibility at all.”
But there are many others who maintain that strong legal steps are needed to combat a growing problem, and national governments should do more to integrate anti-hate speech measures into local legislation and policies. The European Commission points out that the EU has what it calls a ‘robust’ legal tool to address the issue: a Framework Decision on combating racism and xenophobia. It says this can be an important instrument to fight against racist and xenophobic hate speech and crime provided that individual countries correctly transpose and effectively enforce the EU legislation.
The Commission says it is currently assessing whether member states are adequately implementing measures and it will present a report on compliance with the Framework Decision at the end of this year. It doesn’t rule out the launch of infringement proceedings if member states do not comply.
The human rights expert Anne Weber, in an introduction in the Council of Europe’s Manual on Hate Speech, had this to say: “In multicultural societies, which are characterised by a variety of cultures, religions and lifestyles, it is sometimes necessary to reconcile the right to freedom of expression with other rights, such as the right to freedom of thought, conscience and religion or the right to be free from discrimination. This reconciliation can become a source of problems, because these rights are all fundamental elements of a ‘democratic society’.
“The European Court of Human Rights has therefore affirmed that freedom of expression as guaranteed under article 10 of the European Convention on Human Rights ‘constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man.’
“But however vast the scope of freedom of expression, some restrictions to the exercise of this right may in some circumstances be necessary. Unlike the right to freedom of thought (inner conviction or forum internum), the right to freedom of expression (external manifestation or forum externum) is not an absolute right. The exercise of this freedom carries with it certain duties and responsibilities and is subjected to certain restrictions as set out in article 10(2) of the ECHR, in particular those that concern the protection of the rights of others.
Weber further explained: “The European Court has always affirmed that ‘it is particularly conscious of the vital importance of combating racial discrimination in all its forms and manifestations.’ Thus, it has emphasised in various judgements ‘that tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. That being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance (including religious intolerance), provided that any ‘formalities’, ‘conditions’, ‘restrictions’ or ‘penalties’ imposed are proportionate to the legitimate aim pursued.’
“The challenge that the authorities must face is therefore to find the correct balance between the conflicting rights and interests at stake.”
The issue has huge implications, not only for the mainstream media but also for ordinary users of the internet, especially on social media sites. But the policies or advice on those sites are not the same, however. To the question ‘What does Facebook consider to be hate speech?’, the company responded by saying: “Content that attacks people based on their actual or perceived race, ethnicity, national origin, religion, sex, gender, sexual orientation, disability or disease is not allowed. We do, however, allow clear attempts at humour or satire that might otherwise be considered a possible threat or attack. This includes content that many people may find to be in bad taste (e.g. jokes, stand-up comedy, popular song lyrics, etc.).”
The social network site Twitter is less clear on hate speech. There is no special reference to it on its policies page. The closest it comes is under the section Violence and Threats: “You may not publish or post direct, specific threats of violence against others.”
The YouTube website has this to say on the issue: “We encourage free speech and defend everyone’s right to express unpopular points of view. But we do not permit hate speech (speech which attacks or demeans a group based on race or ethnic origin, religion, disability, gender, age, veteran status and sexual orientation/gender identity).”
Google also makes a special mention on hate speech in its User Content and Conduct Policy: “Do not distribute content that promotes hatred or violence towards groups of people based on their race or ethnic origin, religion, disability, gender, age, veteran status, or sexual orientation/gender identity.”
Anti-racism campaigners point to another problem: they say hate speech is often now nuanced to appear at first glance to be harmless, with subtle words and phrasing that get around the law, but it is having the same harmful effect. The hateful message is often ‘between the lines’, say activists. For example, they say the discourse of many politicians has changed in countries where hate speech and crimes have sparked public anger, but the fundamental racist and xenophobic content and messages are the same, albeit more difficult to spot. This, they say, is much more difficult to combat.