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.