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Introduction
In Europes culturally diverse societies there is a need to
reconcile the right to freedom ofexpression with other rights, such
as freedom of belief, conscience or religion, which mightsometimes
compete with each other. It is a difficult challenge because these
rights are at thecore of democracy.
Article 10 of the European onvention on !uman "ights states that
#everyone has the rightto freedom of expression$, including the
#freedom to hold opinions and to receive and impartinformation and
ideas without interference by public authority and regardless of
frontiers%.!owever the convention also provides that the exercise
of these freedoms carries with itduties and responsibilities, and
establishes that some restrictions to this right, including for#the
protection of the reputation or rights of others%, may in certain
circumstances be possible.
In &ovember '00( the ouncil of Europe is launching a Manual
on Hate Speech whichaims to clarify this concept and guide policy
ma)ers, experts and society as a whole on thecriteria followed the
European ourt of !uman "ights* case law. +he author is human
rightsexpert Anne eber, who was commissioned by the ouncil for this
pro-ect.1
Questions and Answers
1. What is hate speech?
+here is no universally agreed definition. ost countries have
adopted legislations banningexpressions that can be included in
this concept, but with slight differences.
In 1// the ommittee of inisters of the ouncil of Europe adopted
a "ecommendation onhate speech which stated the term #shall be
understood as covering all forms of expressionwhich spread, incite,
promote or -ustify racial hatred, xenophobia, anti2emitism or
otherforms of hatred based on intolerance, including3 intolerance
expressed by aggressivenationalism and ethnocentrism,
discrimination and hostility against minorities, migrants andpeople
of immigrant origin%.
In its case law the European ourt of !uman "ights, without
adopting a precise definition,has applied this term to forms of
expression which spread, incite, promote or -ustify hatredfounded
on intolerance, including religious intolerance. +he manual points
out that, although
the ourt has not yet dealt with this aspect, homophobic speech
also falls into what can beconsidered as hate speech.
2. Has the European Court of Human i!hts set an" restrictions to
freedom ofe#pression related to hate speech?
According to the ourt*s case law, there can be no doubt that
concrete expressionsconstituting hate speech, which may be
insulting to particular individuals or groups, are notprotected by
Article 10 of the onvention, and therefore can be restricted by
governments in
1The views in this manual are those of the author and do not
necessarily reflect those of the Council of Europe.
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Hate
speech
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their national law.+he identification of expressions that could
be ;ualified as #hate speech% is sometimesdifficult because this
)ind of speech does not necessarily manifest itself through the
expression of hatred or of emotions. It can also be concealed in
statements which at a firstglance may seem to be rational or
normal.
$. What has the Council of Europe done to pre%ent and com&at
hate speech?
+he 1// ommittee of inisters "ecommendation on hate speech
condemns this )ind ofexpression and aims at providing states with
some common criteria for national legislation.+he text points out
among other things that these expressions can often be more harmful
ifthey are disseminated by the media. It also recommends states to
clearly distinguish theresponsibility of the author of the
statement from that of the media which reports it.
4therdeclarations and recommendations have followed.
A '00 9arliamentary Assembly "ecommendation pointed out the need
to criminalisestatements which incite hate, discrimination or
violence against individuals or groups for
religious or other reasons. +he Assembly re;uested the European
Commission for
Democracy through Law (
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dissemination of the denial of the holocaust, considering it is
at the same time a denial ofcrimes against humanity and an
incitement to hate towards the @ewish people.
If an expression is not excluded outright from the protection of
the onvention in accordancewith Article 1, the ourt will examine
whether the restriction imposed by a state on freedomof expression
fulfills a number of re;uirements3 .
- the restriction to freedom of speech was foreseen by national
law- the reasons for these restrictions are among the legitimate
aims set out in Article 10- they are necessary in a democratic
society to achieve one or more of the legitimate
aims mentioned under Article 10.
+he ourt has ruled that restrictions to freedom of expression
are only acceptable if theyrespond to an #pressing social need% and
that the means used were proportionate to thelegitimate aim
pursued. !owever it has stated that national authorities en-oy a
certain
#margin of appreciation% to do this, which will vary from one
type of case to the other, and willin any event be supervised by
the ourt. &onetheless, the ourt has also held that
Article 10 is applicable not only to "information" or "ideas"
that are favourably received or
regarded as inoffensive or as a matter of indifference, but also
to those that offend, shock or
disturb the state or any sector of the population.
Any restriction of freedom of speech will be examined by the
ourt in the light of the globalcontext. 2ince there is no decisive
factor, which draws a line between what is allowed andwhat is not,
a number of elements need to be considered together in each
case.
(. What factors does the Court consider in e%er" case?
According to the manual, the ourt ta)es into account the
following factors3 +he ob-ective of the person whose freedom of
speech was restricted +he content of the expression +he context, eg
whether the person who made the statement is a -ournalist or
politician +he profile of the people who are targets of opinions
and expressions +he publicity and potential impact of the
expression, eg whether the statement was madein a widely
distributed newspaper or in a poem +he nature and gravity of the
restriction
). Which is the *e" criterion to determine whether an e#pression
constitutes hate
speech and ma" &e restricted?
+he basic criterion the ourt uses to determine whether a
restriction of freedom ofexpression is acceptable or not is the
original aim of the author of the statement. +his maybe difficult
to determine and that is why the ourt gives great importance to the
context inwhich the statement was made.
+he )ey issue the ourt examines is whether the author of the
statement was intentionallyspreading racist or intolerant ideas
through the use of hate speech or was trying to informthe public
about an issue of general interest. +he answer to this ;uestion
should allow todetermine which expressions, though shoc)ing or
offensive, are protected by Article 10, from
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those which should not be tolerated in a democratic society and
are excluded from theprotection of onvention by virtue of Article
1.
+. ,oes the profile of people who spread hate speech influence
the Court-s criteria?
enerally spea)ing, the ourt considers that the limits of
acceptable criticism are wider
when the target is a politician than if it is a private
individual. Unlike the latter, the former
inevitably and knowingly lays himself open to close scrutiny of
his every word and deed by
journalists and the public, and must consequently display a
greater degree of tolerance.
ith regard to spreading hate speech, the ourt is stricter with
politicians and insists on theirspecial responsibility in not using
language that contributes to fuelling intolerance.oncerning the
media, the manual distinguishes between two situations3 when
the-ournalists are the authors of the statements, which is not
acceptable, and when they are
only intermediaries in imparting statements made by others and
which they do not ma)ethemselves or endorse.
+he ourt is strict when it comes to possible restrictions on
media freedom, due to the
important role they play in democratic societies. It underlines
that whilst the press must not
overstep the bounds set, among other things, for the "protection
of the reputation of others",
it is nevertheless incumbent on it to impart information and
ideas on political issues just as
on those in other areas of public interest. Not only does the
press have the task of imparting
such information and ideas: the public also has a right to
receive them.
. How has the Court dealt with restrictions related to attac*s
a!ainst other reli!ions?
+he ourts established position is that those who choose to
exercise the freedom tomanifest their religion, irrespective of
whether they do so as members of a religious ma-orityor a minority,
cannot reasonably expect to be exempt from all criticism. +hey must
tolerateand accept the denial by others of their religious beliefs
and even the propagation by othersof doctrines hostile to their
faith.
!owever in cases where the attac)s may be offensive or concern
issues that are consideredsacred by believers, the ourt recognises
in its case law the possibility for states to adoptrestrictions to
freedom of expression, provided they satisfy the re;uirements of
Article 10>prescribed by law, pursuing a legitimate aim, and
being necessary in a democratic society=.
In this sense it understands that the religious feelings of
others are the #rights of others%mentioned in Article 10 of the
onvention. +he ourt has favoured a wide margin ofappreciation for
states when such attac)s occur. !owever, this margin does not
gounchec)ed and is sub-ect to the ourts supervision.
In most of its -udgments on this topic the ourt has ruled that
there was no violation ofArticle 10, considering that the
restriction to freedom of speech by the concerned state
wasnecessary to protect the rights of others. In other cases it has
ruled that there had been aviolation of freedom of expression and
accepted that some expressions which might be#shoc)ing% or
#offensive% should not be restricted as long as3
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+hey were not gratuitously offensive +he insulting tone did not
target directly specific believers +he expressions were insulting
neither for believers nor with respect to sacred symbols
+hey did not attac) believers* rights to manifest or practice
their religion and did notdenigrate their faith In particular, that
they did not incite disrespect, hatred or violence.
Contact
@aime "odrBgueC, 9ress 4fficer+el. D?? >0= (/ // F0 G'
[email protected]
Updated: November 2008
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mailto:[email protected]:[email protected]
