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  “HATE SPEECH”
  LAWS IN THE EUROPEAN UNION: IMPLICATIONS FOR FREEDOM OF SPEECH AND EXPRESSION
  A speech presented by Roger Kiska, J.D., Senior Legal Counsel of the Alliance Defense
  Fund, at the 5 hFundamental Rights Platform, Vienna, 19 April 2012
  INTRODUCTION
  Before analysing the topic of “hate speech” and the implications for
  freedom of speech and expression, allow me first to introduce the Alliance
  Defense Fund. ADF is an international not-for-profit legal association of more
  than 2000 allied lawyers, dedicated to the protection of religious liberty globally.
  As well as consultative status with the United Nations, ADF has accreditation
  with the European Commission and Parliament, the Organization for Security and
  Co-operation in Europe, and of course, the Fundamental Rights Agency of the
  European Union. And I am pleased to announce that in January of this year,
  ADF moved its European office here in Vienna.
  WHAT IS “HATE SPEECH”?
  As an organisation dedicated to the protection of religious liberty, we
  have been increasingly concerned with the implications for freedom of speech
  that have resulted from so-called “hate speech” laws. However, before I turn to
  these implications, it is first worth considering what “hate speech” actually is.
  But the fact is, nobody knows. And that is a large part of the problem. The words
  of Humpty Dumpty seem very relevant to the discussion.
  “When I use a word,” Humpty Dumpty said, in rather a
  scornful tone, “it means just what I choose it to mean—neither
  more nor less.”
  “The question is,” said Alice, “whether you can make words
  mean so many different things.”
  “The question is,” said Humpty Dumpty, “which is to be
  master—that’s all.”
  1.L. Carroll, Through the Looking-Glass (Raleigh, NC: Hayes Barton Press, 1872), p. 72.
  ________________________________________
  2. Indeed, “hate speech” appears to mean just what people choose it to mean
  – neither more nor less. A recent factsheet produced by the European Court of
  Human Rights admits that there “is no universally accepted definition of … ‘hate
  speech’”
  2
  and a previous fact sheet observed that “The identification of
  expressions…[of] hate speech is sometimes difficult because this kind 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 first glance may
  seem to be rational or normal.”
  3
  So, according to fact sheets intended to simplify and explain the law,
  “hate speech” is without definition, difficult to identify and can sometimes appear
  rational and normal. Is this really what we want to criminalize? Despite the lack
  of definition, many well meaning institutions and governments have attempted to
  identify the particular speech which they consider to be criminal. For example,
  the FRA has stated that:
  “‘Hate speech’ refers to the incitement and encouragement of hatred,
  discrimination or hostility towards an individual that is motivated by prejudice
  against that person because of a particular characteristic…”
  4
  However, in another document, the FRA states that: “The term ‘hate
  speech’, as used in this section, includes a broader spectrum of verbal acts
  [including] disrespectful public discourse.”
  5
  It also admits that the data collected
  by the national monitoring bodies “may not, strictly speaking, all fall under a
  legal definition of hate speech”.
  6
  Nevertheless, it lists the data collected under
  the heading: “Hate speech by public and religious figures”.
  7
  So, if it is accepted that there is no definition of “hate speech”, it is surely
  not helpful for the same organisation to use different definitions in different
  documents and label some incidents as “hate speech” while at the same time
  admitting they may not come under a legal definition of “hate speech”.
  Regrettably, such confusion over the term abounds. In the recent case of
  Vejdeland v. Sweden,
  8
  the European Court held that while the particular speech in
  question “did not directly recommend individuals to commit hateful acts”, the
  comments were nevertheless “serious and prejudicial allegations”. The Court
  further stated that “[a]ttacks on persons” can be committed by “insulting, holding
  up to ridicule or slandering specific groups of the population” and that speech
  used in an “irresponsible manner” may not be worthy of protection.
  9
  However, for decades the Court has held that freedom of expression
  constitutes one of the essential foundations of a democratic society and one of the
  basic conditions for its progress and for the development of every man. It has
  2
  Available at: http://www.echr.coe.int/ECHR/EN/Header/Press/Information+sheets/Factsheets/.
  3
  Council of Europe, Hate Speech Factsheet at p.2 (updated November 2008).
  4
  ‘Hate Speech and Hate Crimes against LGBT Persons’, FRA, 2009, p.1.
  5
  ‘Homophobia and Discrimination on Grounds of Sexual Orientation and Gender Identity in the
  EU Member States Part II – The Social Situation’, FRA, 2009, p.46. Full quote: “The term ‘hate
  speech’, as used in this section, includes a broader spectrum of verbal acts drawing upon or
  expressing homophobia and/or transphobia in degrading or disrespectful public discourse.”
  6
  Id.
  7
  Id.
  8
  (Application no. 1813/07) judgment of 9 February 2012.
  9
  See paragraphs 54-55 of the judgment.
  ________________________________________

  time and time again held that freedom of expression 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”.
  10
  And so I ask, who here in this room would be confident of placing certain
  expressions in the “protected category”, on the basis that there is a fundamental
  right to use speech which “offends and shocks”, and place other expressions in
  the “criminal category”, on the basis that such speech is “serious and
  prejudicial”?
  What is the difference between protected “offensive and shocking” speech
  on the one hand and criminal “serious and prejudicial” speech on the other hand?
  The answer is that nobody knows, and Humpty Dumpty was right, “the question
  is, which is to be master—that’s all.” In other words, it is increasingly clear that
  whichever “group” shouts the loudest gets to decide what is and is not criminal
  speech; and that is bad for fundamental freedoms and bad for the principles of
  legal certainty and the rule of law.
  The further question arises as to whether Vejdeland v. Sweden was fact-
  specific or if it marks a new trend in European Court jurisprudence. The case
  involves individuals who have been linked to neo-nazism. The applicants broke
  into a school and placed approximately 100 pamphlets condemning homosexuals
  and homosexual behaviour in students’ lockers. Under such a notorious set of
  facts, the chamber judges of the European Court could have been more amenable
  to uphold the fines because of how unsympathetic the applicants and their
  behaviour was. Precisely stated, the chamber very well could have decided the
  case not because it was “hate speech” but because those were the only charges on
  the proverbial “table”. Furthermore, the case is not yet final with an appeal to the
  Grand Chamber expected to be filed.
  EXAMPLES
  Let me briefly provide some examples of where so-called “hate speech”
  has led to limitations on freedom of speech and freedom of expression.
  In the UK, numerous street preachers have been arrested by the police for
  so-called “hate speech”.
  11
  Their crime? Merely preaching publicly from the
  bible. Were they preaching on a controversial topic? Yes they were. But does
  that mean that only inoffensive preaching should be permitted?
  Some of the cases have been extraordinary. For example, at Easter time a
  few years ago, policemen from the “the Race and Hate Crime Unit” investigated
  a church minister from handing out flyers advertising an Easter service following
  10
  Handyside v. the United Kingdom (Application no. 5493/72), judgment of 7 December 1976, at
  § 49.
  11
  For example, Dale McAlpine (see the actual arrest at:
  http://www.youtube.com/watch?v=12LtOKQ8U7c), Anthony Rollins (see
  http://www.christian.org.uk/news/birmingham-street-preacher-wins-wrongful-arrest-case/),
  Miguel Hayworth (http://www.telegraph.co.uk/news/religion/6034144/Preacher-threatened-with-
  arrest-for-reading-out-extracts-from-the-Bible-in-public.html), Mike Overd, (see
  http://www.bbc.co.uk/news/uk-england-somerset-16984133).
  ________________________________________
  4
  a complaint by a member of the public. The leaflet simply featured a picture of a
  flower and said, “New Life, Fresh Hope”
  12
  and then gave details of the service.
  In another example from last year, a cafe owner was investigated by the
  police for displaying bible verses on the wall of his cafe.
  13
  And just a few days ago, a Church in Norwich (in England) was banned from distributing literature which argued the theological correctness of their religion when compared to
  another. They had been peaceably handing out the same leaflet in the same area
  for 4 years without prior incident, until the authorities held that such literature
  promoted “hatred”.
  14
  Such cases continue to come to light at an alarming rate.
  Last year in Ireland a Bishop was accused of incitement to hatred for
  giving a homily which referred to Ireland’s increasingly “godless culture”. An
  atheist complained to the police that the sermon was hostile to those who do not
  share church’s aims and the police launched an investigation and passed the file
  on to the prosecutor.
  15
  In Spain in the summer of 2010, a pro-family television network was
  fined 100,000 Euros for running a series of advertisements in support of the
  traditional family and showing only actual footage of a “gay pride” parade.
  16
  Is it controversial to publicly support the traditional family? Apparently it is. But
  does that mean that such support should be censored?
  Perhaps one of the most disturbing cases in recent times comes once again
  from the UK. Ben and Sharon Vogelenzang were arrested after a conversation
  with a guest who was staying at their hotel. Ben, Sharon and the female guest
  had a lively debate about religion – each arguing, of course, that their own
  religion was correct. Several days later, the guest complained to the police and
  Ben and Sharon were arrested and charged with “insulting” words or behaviour.
  After over a year of investigation, the case was eventually thrown out by the
  court, and Ben and Sharon were acquitted, but in the meantime, their business
  was destroyed and it has never recovered. One conversation. One false complaint.
  And lives were devastated as a result.
  17
  Moving from Europe for just a moment, I think everyone here would
  acknowledge that there are places around the world where freedom of expression
  is severely limited. One country in particular that has been universally criticized
  is Pakistan and its “blasphemy” laws. The widespread abuse of these laws has
  lead to the trial, imprisonment and murder of many citizens – all charged with the
  crime of using offensive speech.
  But, it is little wonder the laws are so abused when we look and see just
  how vague some of the terminology is. For example, one section of the Criminal
  Code states that:
  12
  See ‘Marginalising Christians’, The Christian Institute, 2009, p.38, available
  at:http://www.christian.org.uk/wp-content/downloads/marginchristians.pdf.
  13
  See: http://www.dailymail.co.uk/news/article-2041504/Police-tell-cafe-owner-Stop-showing-
  Bible-DVDs-arrest-you.html.
  14
  See: http://www.bbc.co.uk/news/uk-england-norfolk-17733162.
  15
  http://www.independent.ie/national-news/bishop-accused-of-incitement-to-hatred-in-homily-
  3003057.html
  16
  http://eclj.org/Releases/Read.aspx?GUID=496702da-27da-40cc-b78b-44836d02a2c6&s=eur
  17
  For a detailed analysis of the case, see J. Davies, ‘A New Inquisition’, Civitas, 2010. Press
  release available at: http://www.civitas.org.uk/press/prANewINquisitionJuly2010.htm.
  ________________________________________
  5
  “Whoever, with the deliberate intention of wounding the religious
  feelings of any person, utters any word or makes any sound in the hearing of that
  person or makes any gesture in the sight of that person or places any object in the
  sight of that person, shall be punished…”
  18
  This language is so broad that it could mean anything. But the law I
  quoted doesn’t just appear in the criminal code of Pakistan. The exact language
  used is also in the criminal code of another EU country.
  19
  We need to be very careful. Loosely worded criminal legislation and vague terminology can be used and abused with devastating consequences. We all know of the consequences of
  the laws in Pakistan, but as I have outlined, limitations on freedom of speech are
  increasingly taking place in Europe as well.
  THE THREAT TO FREEDOM OF EXPRESSION
  The result of such “hate speech” provisions is a reduction in the
  fundamental right to freedom of speech and freedom of expression. Instead of
  being free to disagree with one another and having robust debate and a free
  exchange of ideas, “hate speech” laws shut down debate and create a heckler’s
  veto. In the end a chilling effect is created that leads to self-censorship and an
  overly sensitive society.
  In a recent FRA publication, it is lamented that: “There is currently no
  adequate EU binding instrument aimed at effectively countering expression of
  negative opinions…”
  20
  Is this really what we want? A binding instrument aimed
  at countering the expression of negative opinions?
  The current trend towards vague “hate speech” laws have led to a new
  type of inquisition. Those who express views which are unpopular or not part of
  the politically correct orthodoxy of European society can lose their jobs, be fined
  or even spend time in jail. The aim of “hate speech” laws are legitimate only in as
  much as they seek to protect minority groups. However, the laws almost
  universally fail to meet the requisite levels of legal certainty, forseeability and
  clarity as required by the European Convention of Human Rights. Furthermore,
  the toll that such censorship takes on freedom of speech is neither necessary in a
  democratic society nor proportionate to the aims sought. The end result of vague
  “hate speech” laws is often the marginalization of the mainstream and the further
  alienation of fringe groups. Rather than promoting tolerance, “hate speech” laws
  can be the impetus for even greater intolerance.
  Peter Tatchell, the prominent campaigner, has stated that: “Free speech is
  a fundamental human right for every person on this planet. It is a right for all, not
  for some.”
  21
  And while he disagrees completely with the message of the arrested
  street preachers I mentioned earlier, he did agree to stand in their defence should
  18
  Section 298, Pakistan Criminal Code.
  19
  Section 141, Cyprus Criminal Code.
  20
  ‘Homophobia, transphobia and discrimination on grounds of sexual orientation and gender
  identity’, FRA, 2010, p.36-37. Full quote: “There is currently no adequate EU binding instrument
  aimed at effectively countering expression of negative opinions against LGBT people, incitement
  to hatred or discrimination, as well as abuse and violence.”
  21
  See: http://www.petertatchell.net/free_speech/freedomofexpression.htm.
  ________________________________________
  6
  a case be brought to trial. He has repeatedly pointed to a “threat of violence” as
  being the only legitimate reason for restricting free speech.
  22
  Surely this is the correct approach. Unless there is a clear a present threat
  of violence, speech, however much we may dislike and disagree with it, ought to
  be protected. In the words of one leading court judgment: Free speech “includes
  not only the inoffensive, but the irritating, the contentious, the eccentric, the
  heretical, the unwelcome and the provocative provided it does not tend to
  provoke violence. Freedom only to speak inoffensively is not worth having.”
  23
  If freedom of speech and expression is truly the fundamental right we
  claim it to be, then this should surely be our understanding of it. We should
  move away from subjective and vague definitions that are open to abuse and
  manipulation. The criminal law should not be invoked to prevent the expression
  of “negative opinions” or restrict so-called “serious and prejudicial” statements.
  Instead, any restrictions placed on freedom of speech should be very narrow –
  and whether or not there is a likely threat of violence should be the key test.
  If we promote this understanding of hate speech, we will truly be
  protecting fundamental freedoms – for the benefit of all of society.
  22
  See:
  http://www.pinknews.co.uk/2011/01/12/peter-tatchell-dont-criminalise-homophobic-
  christians/.
  23
  Per Sedley LJ, Redmond-Bate v. Director of Public Prosecutions [1999] EWHC Admin 732
  (23
  rd
  July 1999).

  - 9. 05. 2012. u 2:13 pm

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