No issue is more problematic for those concerned with media freedom than
"hate speech". The term is generally used to refer to advocacy of
national, racial, religious, or other hatred. The issue, in essence, is how far
it is proper or acceptable to limit the right to freedom of expression, when
the views being expressed support the limitation or infringement of the rights
of others.
One of
the problems is that this may just be a matter of point of view. One person's
"hate speech" will be another's legitimate opinion. There is thus a
general reluctance to impose restrictions on what may be said.
This
dilemma becomes even more acute in the circumstances of an election. This is
for two reasons:
- An election is precisely
the moment when a variety of political views should be expressed. To limit
expression of some of these views potentially limits not only rights of
free speech but also rights of democratic participation.
- On the other hand, the
highly charged atmosphere of an election campaign may be precisely the
moment when inflammatory statements are likely to have the effect of
inciting people to violence - thereby infringing the democratic and free
speech rights of others.
These issues are more difficult to address
in a country with a history of communal or ethnic violence, where the media are
known to have played a role in fanning hostilities. That is why, for example,
the matter of "hate speech" was given so much attention in the
Bosnian elections of 1998 - the media on all sides having played a considerable
role in inciting the wars that led to the breakup of Yugoslavia.
Meanwhile, the 2008 post-elections violence
in Kenya was precipitated by longstanding historical issues played out through
violence along ethnic lines. However, media have also been accused of fanning
the flames in this context (with one journalist even being indicted by the
International Criminal Court for his alleged role). Subsequently, a National
Cohesion and Integration Act was passed under which a number of people have
been indicted for hate speech. The Act and other related laws have drawn
criticism from some quarters that they excessively infringe freedom of speech
and lead towards a slippery slope of increasing censorship.
The
issue of defamation is a similar problem to that of hate speech in one respect:
it is an area where freedom of expression may legitimately be limited for the
protection of the rights of others. Yet it does not have the same collective
implications in an election campaign. Vigorous - and even sometimes insulting -
debate is part of the substance of democratic campaigning. International and
comparative jurisprudence has established clearly that politicians - especially
government politicians - must have thick skins. They should have less
protection than the ordinary citizen, not more. From the standpoint of the
media in an election campaign, the clear similarity between defamation and hate
speech lies in the issue of who will be held liable for any unlawful statement:
the media or the person whose words they report.
International
and Comparative Law
Neither
international law nor the experience of various national courts offers any
definitive answer on how to balance freedom of expression and protection of other
rights. Precisely because it is a balance, the answer will be determined by
national and local circumstances, as well as precise context.
International
treaties provide a clear basis for criminalizing advocacy of hatred or
discrimination. In extreme circumstances, such as the case of Radio television
libre des mille collines in Rwanda, where a radio station incited genocide,
journalists have been convicted before an international tribunal for crimes
against humanity.
However,
the general trend in interpreting this balancing act has been towards promoting
many voices to counteract the effect of hate speech, rather than banning those
voices that express obnoxious or unpopular views. Experience has shown that
laws prohibiting hate speech are often used far more broadly than for their
ostensible purpose. The country with the largest battery of laws prohibiting
advocacy of racial hostility was apartheid South Africa. Invariably the victims
of these laws were black.
The
practice in most jurisdictions where this issue has been considered tends
towards prohibiting hate speech only when it constitutes a direct incitement to
violent activity. That may not itself be a very easy concept to define, but it
contains the idea that no one in election campaigns will be penalized for the
expression of opinions - only for interfering with the rights of others.
Media
Liability
Discussion
of hate speech and the media in elections is really about two separate issues:
- The media reporting
advocacy of hatred by campaigning politicians;
- The media directly
advocating hatred themselves.
On the
former issue, the international consensus is coming down firmly on the side of
absolving the media from liability for reporting the remarks of politicians,
within the limited time span of an election campaign. This means that a
journalist or media house would not be open to either a civil or criminal suit
for reporting remarks by a politician that constituted advocacy of hatred. But
this would not absolve the journalist from a professional responsibility to
balance such statements with countervailing facts or voices.
Attempts
to Regulate
When
the media themselves directly advocate hatred - especially in circumstances
that could constitute incitement - they clearly cannot expect to be absolved
from liability. In these circumstances, the regulatory body would be expected
to monitor the media's output closely. But this in itself creates practical and
ethical problems. For example, how is it possible to distinguish between poor
or irresponsible reporting of violent statements and active endorsement of
those statements?
As in
much else, the distinction between editorial and non-editorial content is
important. Non-editorial content - primarily direct access material of various
sorts - is beyond the control of the media themselves, generated as it is by
the political parties. The regulatory body will have to determine how far, if
at all, it chooses to vet the content of direct access items.
Such
cases clearly test the limits of freedom of speech and indicate how these
dilemmas are exacerbated in election periods.
