International standards on the issue of "hate speech" are determined by a balance of Articles 19 and 20 of the International Covenant on Civil and Political Rights. The former guarantees:
the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers...
Article 19 then outlines possible restrictions to this right, including "for respect of the rights or reputations of others".
Article 20 states:
- Any propaganda for war shall be prohibited by law.
- Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
The American Convention on Human Rights requires states to declare advocacy of hatred on national, racial, or religious grounds a criminal offence. The European Convention on Human Rights and the African Charter on Human and Peoples' Rights do not require hate speech to be prohibited by law, but they allow that it may be.
The Convention on the Elimination of All Forms of Racial Discrimination (CERD) has an even broader prohibition. Article 4 requires all states who are party to the treaty to declare as a criminal offence "all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination,... the provision of any assistance to racial activities", and participation in "organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination."
In a case that related to participation in elections (but not to the media), the European Commission declared inadmissible an application from a Dutch right-wing political leader who had been imprisoned for two weeks and had his name removed from the electoral lists for advocating the repatriation of non-white guest workers.[1]However, in a case that did relate to the role of the media, the Commission admitted an application from a Danish journalist who had been convicted for broadcasting a television interview with members of a white supremacist youth gang. Danish law was changed as a consequence to exclude liability for journalists unless, by publishing racist ideas, they intended to "threaten, insult or degrade".[2]
This distinction is an important one: the attitude of the law (and the regulatory authorities) will be different depending on whether the media are actively advocating hatred or violence or they are simply reporting the advocacy of hatred or violence by politicians and others. The point is fundamental, although this does not avoid the problem of grey areas.
Decisions of International Courts
The principle that incitement to carry out crimes against humanity is itself a crime against humanity dates from decisions of the Nuremberg trials of Nazi leaders in the 1940s. Much more recently, the International Criminal Tribunal for Rwanda has found four journalists or media executives, as well as the former Minister of Information, guilty of incitement to genocide through broadcasts or newspaper articles.
Decisions of National Courts
The Israeli Supreme Court has found that freedom of expression may be infringed only when there is an imminent probability that the statement will cause damage to public order. It ruled, as a consequence, that the Broadcasting Authority had violated the rights of the leader of an extreme anti-Arab political party by reviewing his statements before broadcasting them.[3]
In Sweden, the Freedom of the Press Act prohibits the expression of threats or contempt against racial, ethnic, or religious groups. The provision is rarely used, but in 1991, a newspaper editor was prosecuted for publishing a letter from a reader expressing racist opinions. The editor's argument was that such views should be allowed to surface, in order that they could be debated. The jury acquitted the editor.[4]
The Hungarian Constitutional Court ruled unconstitutional a provision of the law on incitement to hatred. The provision made it an offence to insult or humiliate the Hungarian nation, or a group of the population based on religion, race or similar features.
The court observed:
Freedom to express ideas and opinions, including freedom to express unpopular or unconventional ideas, is the fundamental condition for the existence of a truly vital society which is capable of self-improvement...
Freedom of expression protects statements of opinion regardless of their implicit value or truth.[5]
[1] Glimmerveen and Others v. The Netherlands, App. Nos. D 8348/78 and 8406/78, 4 EHRR 260 (1982).
[2] Jersild v. Denmark, App. No. 15890?89, Decision of 8 September 1992.
[3] Meir Kahane and Others v. Board of Directors of the Broadcasting Authority, Israeli Supreme Court, 41(3) PD 255 (1987).
[4] H-G Axberger, "Freedom of the Press in Sweden", in ARTICLE 19, Press Law and Practice, 1993.
[5] Constitutional Court, AB Hatarozat, No. 30/1992 (26 May)
