In a world where hatred, and the violence that stems from it, can be found everywhere regardless of the cultural, religious or political persuasions of the jurisdiction it can be located in. It is only natural that extraordinary laws form to combat it. Hate Speech laws can be found in most liberal democracies around the world. Supporters of Hate Speech laws propound the law's relevance in protecting human dignity, shielding people against oppression, platforming validation of cultural identity, ensuring respectful dialogues between different social groups and enabling meaningful engagement in civic discourse.

However, despite its ostensibly noble scheme, Hate Speech laws have been met with strong opposition from those who fear applicative overreach in implementing restrictions on something as broad and fundamental as speech and expression. Critics of the overall legal regime contend that Hate Speech laws cripple the procurement of knowledge and truth, limit self-realisation and prevent the formulation of meaningful and substantive public opinions in asserting oneself in the public sphere.1 In attempting to curb hatred through restrictive legal provisions, Hate Speech laws affect many different facets of society, including news media, criminal law, the Internet, working environments, etc.2

Due to the impact such laws may have on people’s lives, Hate Speech laws have become increasingly contentious in the legal, political and philosophical spheres. Specifically, concerning International Human Rights Law, there have been debates on the effectiveness of Hate Speech laws in balancing the protection and limitation of human rights to achieve the most well-being possible within a society. This article will specifically address the practical issues characteristic of these laws. By providing insight into the practical nuances a State would contend with in applying these laws to the online world.

Hate speech law concerning international and regional legal frameworks

The term “hate speech” is not a term that finds universal delineation. According to the United Nations (UN), Hate Speech refers to spoken, written or behavioural forms of communication, which attack or discriminate against people based on a specific identity factor such as religion, ethnicity, nationality, race, gender, etc.3 However, the European Court of Human Rights has recognised that there is no universally accepted definition of “hate speech”, and its definitions vary in domestic law. In addition, no agreed-upon list of sanctions exists that should apply to restrictions on hate speech in international law. The risk here is that states may violate principles of proportionality by imprisoning people for ill-defined acts of “hate speech".4 However, in terms of international law, states are not required to protect people from subjective offences but rather to prevent discrimination or physical harm in meeting the tests of necessity and proportionality.5

Hate speech is conceptualised in various configurations within different domestic and regional frameworks around the world. In Canada, for example, sections 318 to 320 of its Criminal Code are provisions relating to hate propaganda and hate promotion offences. Section 319 of its Criminal Code provides that public communications that wilfully promote or incite hatred against a specific group would likely breach public peace and is punishable by up to two years imprisonment. It also provides special defences for these crimes, including arguments made in good faith, expressing public interest and communicating factual statements of truth or fact.6 Similarly, section 18 C of Australia’s Racial Discrimination Act of 1975 prohibits words, sounds or images conveyed in public that are reasonably likely to offend, insult, humiliate or intimidate persons based on specific identity factors.7 The primary measure of this crime is whether it is communicated in public.

Some countries employ Hate Speech laws specifically in cyber media. Iran’s’ Press Law of 1986 prohibits media from raising issues of racial ethnicity that are detrimental to the rights of the public or the principles of Islam. While Israel’s Second Television and Radio Authority Act of 1990 prevents the broadcasting of racial incitement or material that incites discrimination on identified identity factors.8 Similarly, in Iceland, certain media outlets are prohibited from inciting criminal behaviour or encouraging hatred based on identity factors.

International standards on regulating expression and opinion online

In drawing inferences from the various conceptualisations of Hate Speech laws from the above-discussed international and regional legal frameworks, some of the key features of Hate Speech are made apparent. Certain commonalities exist in its application, which includes that the speech must be public, is likely to or incites harm based on certain identify factors, or is likely to disturb public peace. The standards these crimes are measured against are, however, problematic. “Hatred” is something that finds no legally agreed-upon definition. The Human Rights Committee and the Committee on the Elimination of all Forms of Racial Discrimination, describe “hatred” as a passive state of mind, which accommodates hostility towards specific groups despite there being no express volition in physically demonstrating such hostility.9

This overall feature is dangerously vague, as it does not contain an objective standard of risk that it may pose to a society based on conclusions regarding causation or correlation.10 However, concerning section 319 of Canada’s Criminal Code, the Ontario Court of Appeal in R v Keegstra narrowly construed the term “hatred” as suggesting emotion of an extreme and severe nature and censure. 11 Similarly, the South African Constitutional Court in South African National Defence Force Union v Minister of Defence, defined “hatred” as an intense, passionate and/or active dislike, ill will, malevolence, or feeling of antipathy or enmity that is connected with a disposition to injure.12 These definitions imply the ideal intense and exceptional nature of these crimes, which contains an element of severity that cannot be ignored when attempting to regulate speech and expression online.

Fundamentally, Hate Speech law seeks to prohibit communications that incite, encourage or propagate hate. The term “incite” is difficult to narrow down as it is used differently based on its definition. Generally, the term refers to speech that encourages, provokes or persuades unlawful behaviour. There must be some causal link between the speech and acts of violence or unlawfulness through a call to action, causing any recipients of hateful speech to take action against a specified group.13 As such, the inherent vagueness of these laws needs to be approached with caution in applying them to the online world.

Applying regulatory limitations to expression and opinion online

There is no doubt that the World Wide Web, as the name suggests, has evolved into the largest web, source and facilitator of information and social interaction worldwide. The Internet has become the global power hub in the marketplace of ideas. As eloquently noted in the landmark US Supreme Court case of Reno v American Civil Liberties Union concerning free speech, the content of the Internet is as diverse as human thought itself.14 It is mainly occupied and regulated by private actors independent of government intercession, who act as the arbiters of this new medium of communication and expression.

However, as within most facets of life, whether in the physical world or cyberspace, there needs to be some regulation put in place that governs the behaviours of those who operate within a particular domain of life. There is no doubt that there needs to be some room for State regulation in the online world to protect the interest of the State, private companies and persons interacting and operating within its cyberspace due to its Wild West nature. State regulation may have potential excessive and overreaching effects. This could diminish the actualisation of basic human rights, including freedom of expression and opinion as codified in both, international law and domestic/regional law.15 Many issues need consideration when regulating free expression on the internet. Some of these issues are discussed in the paper as they relate to international, regional and South African law.

International standards on regulating expression and opinion online

In international law, since freedom of expression is necessary for the effectuation of transparency, and accountability and fundamental to the protection of human rights, States are encouraged to cater to the evolution and diversification of online information and communication technologies in ensuring the independence of contemporary media.16,17 This, as recognised by the UN Human Rights Committee, is key to allowing for free and uncensored media that is crucial to ensuring the protection of the right to freedom of expression.18 Therefore, in restricting online content, the restrictions themselves must be exceptional by nature and pass a cumulative three-part test.19

The first part of this cumulative test requires that any restrictions imposed must be provided by law that is clear, unambiguous, comprehensively worded and accessible to everyone it affects. This is to prevent State overreach in exercising unbounded discretion in limiting expression and opinion online.20 The second part requires that States prove the necessity and legitimacy of the restrictions in protecting the rights and reputations of others, national security, public order, health or morals. States must narrowly restrict expression and opinion online, even in instances of Hate Speech. As often, legitimate reasons can disguise illegitimate reasons.21

Lastly, States are required to prove that all curbs are the least restrictive and proportionate in achieving the overall aim of such restrictions.22 The term “necessary”, as noted by the European Court of Human Rights, implies that the restriction should be exceptional and a pressing social need that goes beyond expressions such as ‘reasonable’, ‘useful’ and/or ‘desirable’.23 The requirement of proportionality in this instance would require that any restrictions placed on expression and opinion online must be appropriate to achieve its protective function and be proportionate to the interest to be protected to achieve the desired result.24 Additionally, as noted by the African Commission, the principle of proportionality necessitates that the punishment of a particular crime matches the severity of the crime. A fair balance between the rights and freedoms of the individual and the interests of society is required.25

Conclusion

The right to freedom of expression and opinion, recognized in international and regional frameworks, is crucial for fundamental human rights and democratic societies. But it faces challenges adapting to the internet and online expression. Domestic approaches often lack clarity on Hate Speech. They rely on outdated frameworks ill-suited for the digital age. International law provides valuable guidance for regulating online expression, striking a balance between individual liberty and state intervention. Adhering to the cumulative test ensures compliance with international obligations, enabling a robust and rights-based approach to govern online communication.

Careful consideration of restrictions on expression and opinion in any democratic society is required. Limitations must be precise, proportionate, and necessary. Hate Speech, in particular, presents a contentious limitation, and clashes with the principles of freedom, accountability, and empowerment. Well-structured and comprehensive legal provisions are essential to align Hate Speech laws with the fundamental right to freedom of expression.

As legal jurisdictions expand to encompass online expression, the vagueness of Hate Speech laws and international standards must be considered. Imposing restrictions based on abstract concepts without tangible harm is a precarious path. It is because the act of thinking and expressing oneself inherently carries the risk of being offensive or hurtful and regulating speech solely on subjective grounds may undermine the principles of free expression.

References

1 Brown A Hate Speech Law: A Philosophical Examination (2015) 9.
2 Knechtle JC ‘When to Regulate Hate Speech’ (2006) 110 Penn State Law Review 539 578.
3 UN ‘United Nations Strategy and Plan of Action on Hate Speech’ 2019 (accessed 12 October 2021).
4 European Court of Human Rights ‘Factsheet - Hate Speech’ 2012 (accessed 12 October 2021).
5 UN General Assembly ‘Promotion and protection of the right to freedom of opinion and expression: Note by the Secretary-General’ A/74/486 (9 October 2019) para 10.
6 Legal and Social Affairs Division Hate Speech and Freedom of Expression: Legal Boundaries in Canada (Background Paper) (2018) 5.
7 Muntarbhorn V ‘Study on the prohibition of incitement to national, racial or religious hatred: Lessons from the Asia Pacific Region’ available at(accessed 12 October 2021).
8 Muntarbhorn V ‘Study on the prohibition of incitement to national, racial or religious hatred: Lessons from the Asia Pacific Region’ (accessed 12 October 2021).
9 Scheffler A ‘The inherent danger of Hate Speech legislation: A Case Study from Rwanda and Kenya on the Failure of a Preventative Measure’ fesmedia Africa 2015 available at (accessed 12 October 2021).
10 Mchangama J ‘The Problem with Hate Speech Laws’ (2015) 13 The Review of Faith & International Affairs 75 82.
11 Benesch S ‘Defining and Diminishing Hate Speech’ Minority Rights Group International 2014 (accessed 12 October 2021).
12 South African National Defence Force Union v Minister of Defence 1999 4 SA 469 (CC) para 8.
13 Mchangama J ‘The Problem with Hate Speech Laws’ (2015) 13 The Review of Faith & International Affairs 75 82.
14 Reno v American Civil Liberties Union, 521 US 844 (1997) 852.
15 Internet Rights and Principles Coalition ‘Commentary of the Charter of Human Rights and Principles for the Internet’ 2011 (accessed 13 October 2021).
16 HRC ‘General comment no. 34, Article 19, Freedoms of opinion and expression’ CCPR/C/GC/34 (12 September 2011) para 3.
17 HRC ‘General comment no. 34, Article 19, Freedoms of opinion and expression’ CCPR/C/GC/34 (12 September 2011) para 15.
18 HRC ‘General comment no. 34, Article 19, Freedoms of opinion and expression’ CCPR/C/GC/34 (12 September 2011) para 13.
19 UN General Assembly ‘Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue’ A/HRC/17/27 (16 May 2011) para 69.
20 UN General Assembly ‘Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye’ A/HRC/29/32 (22 May 2015) para 32.
21 UN General Assembly ‘Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye’ A/HRC/29/32 (22 May 2015) para 33.
22 UN General Assembly ‘Promotion and protection of the right to freedom of opinion and expression: Note by the Secretary-General’ A/67/357 (7 September 2012) para 41.
23 Sunday Times v United Kingdom (1979) 2 EHRR 245, para 59.
24 HRC ‘CCPR General Comment No. 27: Article 12 (Freedom of Movement)’ CCPR/C/21/Rev.1/Add.9 (2 November 1999) para 14.
25 Zimbabwe Lawyers for Human Rights & Associated Newspapers of Zimbabwe v. Zimbabwe Communication No. 284/03, para 176.

Legal and Social Affairs Division Hate Speech and Freedom of Expression: Legal Boundaries in Canada (Background Paper) (2018) Library of Parliament: Ottawa