Combating Hate Speech

The honourable Chief Justice, the honourable Attorney-General and Acting Prime Minister, the United Nations Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, the Permanent Representative
10 Dec 2016 11:00
Combating Hate Speech
Ashwin Raj

The honourable Chief Justice, the honourable Attorney-General and Acting Prime Minister, the United Nations Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, the Permanent Representative to the United Nations and Other Offices in Geneva, the Regional Representative of the High Commissioner in the Pacific of the Office of the United Nations High Commissioner for Human Rights, the panel moderator, members of the legal fraternity and invited guests, good afternoon.

Historically and politically, race has served as an important signifier for the mobilisation of rights and privileges in Fiji that easily descends into racism through the privileging and institutionalisation of one racial category as preponderant over others.

Despite the salutary efforts to erase the ignominy of institutionalised racism from our public memory through legal reforms as evidenced in our constitutional provisions on common and equal citizenry, the intuition to race as a dominant structure of apprehension still persists and so does the cartography of racial anxiety.

The utterances in Parliament and the interventions made both in the social media and mainstream media are a sad indictment of the pervasiveness of racial intolerance.

How we evacuate race from the vicissitudes of racism and speak openly about human differences with civility is an important question at this point in our historico-political conjuncture.

This is particularly important because Fiji is emerging out of the detritus of institutionalised racism.

The constitutional imperative for common and equal citizenry does not mean, however, that we are not moving towards a non-racial political future premised upon a pretention that race does not exist.

The Preamble of the Fijian Constitution after all begins with the recognition of our diversity. The Constitution equally challenges us, however, to think about a post-racial future where differences can co-exist with dignity and equality.

Hate speech stifles the possibility of equal participation with dignity and equality in a pluralistic society.

It is precisely because of our history, the Fijian Constitution while guaranteeing freedom of speech, expression and publication under section 17 of the Bill of Rights provisions expressly sets out the limitations under 17 (2) (c) that freedom of speech, expression, thought, opinion and publication does not protect- advocacy of hatred that – (i) that is based on any prohibited grounds of discrimination listed or prescribed under section 26; and (ii) constitutes incitement to cause harm. Section 17 (3) (b) (i) limits the economy of rights for the protection and maintenance of the reputation, privacy, dignity, rights or freedoms of other persons, including – the right to be free from hate speech, whether directed against individuals or groups and 17 (3) (d) preventing attacks on the dignity of individuals, groups of individuals or respected offices or institutions in a manner likely to promote ill will between ethnic or religious groups or the oppression of, or discrimination against, any person or group of persons.

The constitutional definition of “hate speech” is any “expression in whatever form that encourages, or has the effect of encouraging discrimination on a ground listed or prescribed under section 26”. Section 26 is an important provision on the right to equality and freedom from discrimination, which provides that every person is equal before the law, and has the right to equal protection, treatment and benefit of the law. Section 26 (3) states that a person must not be unfairly discriminated against, directly or indirectly on the grounds of his or her—

(a) actual or supposed personal characteristics or circumstances, including race, culture, ethnic or social origin, colour, place of origin, sex, gender, sexual orientation, gender identity and expression, birth, primary language, economic or social or health status, disability, age, religion, conscience, marital status or pregnancy; or

(b) opinions or beliefs, except to the extent that those opinions or beliefs involve harm to others or the diminution of the rights or freedoms of others.

The rights and freedoms set out under section 17 of the Fijian Constitution are consistent with Article 19 of the International Covenant on Civil and Political Rights (ICCPR) as well as the international obligations which prohibit all advocacy that constitutes incitement to discrimination, hostility or violence (“incitement” or “incitement to hatred”) as mandated by Article 20(2) of the ICCPR.

The jurisprudence on freedom of expression, however, equally exposes the risk of an inherent conflict between freedom of expression and the interdiction of all forms of discrimination in those cases where exercising this freedom is used to incite hatred and shows characteristics of “hate speech”.

It is further complicated by the fact that what may be deemed as hate speech today was at some point mainstream political speech and therefore within the permissible narrative.

Drawing on the Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, the recommendations of the European Commission against Racism and Intolerance, as well as Article 19 on prohibiting incitement to discrimination, hostility or violence, I wish to raise some legal and conceptual considerations in relation to the regulation of hate speech and the concomitant exercise of building a robust culture of freedom of expression.

1. The formulation of a comprehensive anti-discrimination framework such as an Equality Act that gives effect to section 26 of the Constitution is critical. The framework must include civil law remedies including protection against discrimination on various grounds in employment and training, education, social protection, membership of organisations and access to services; definitions of direct and indirect discrimination; positive action to ensure full equality in practice; the right to complain through a judicial or administrative procedure, with appropriate penalties for those who discriminate, forms of redress such as compensation, right of correction or reply.

2. There is a need to develop a systematic mechanism for the collection of data in relation to hate speech as well as the formulation of reliable tools to identify the conditions conducive to the use of hate speech, the different forms it takes, capacity to measure its extent and the harm it causes.

3. Promoting a robust freedom of expression landscape by ensuring minimum legal ambiguity. This would entail:

λ Drawing clear distinctions between three types of expressions: expression that constitutes a criminal offence; expression that is not criminally punishable but may justify a civil suit or administrative sanctions; expression that does not give rise to criminal, civil or administrative sanctions but still raises a concern in terms of tolerance, civility and respect for the rights of others.

λ The provision of robust definitions of terms such as “hatred”, “discrimination”, “incitement” given the seemingly diabolically opposed but mutually constitutive relationship between Article 19 and 20 of the ICCPR on the “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”). The Camden Principles on Freedom of Expression and Equality is particularly instructive. In the recent determination on a complaint against the FBC on whether a particular episode of a programme was tantamount to “explicit racism”, I drew on the definition of “hatred” (“intense and irrational emotions of opprobrium, enmity and detestation towards the target group”) from the Camden Principles. The identification of statements that could be classified as “hate speech” can be quite contentious because this kind of speech does not necessarily manifest itself through expressions of “hatred” or “emotions”. Hate speech can be concealed in statements which at a first glance may seem to be rational or normal. It is, however, possible to distil particularly from principles found in the case law of the European court of Human Rights certain parameters distinguishing expressions, which, though they are of an insulting nature, are fully protected by the right to freedom of expression from those that do not enjoy such protection.

λ Any hate speech restrictions on freedom of expression should be carefully designed to promote equality and protect against discrimination and as with all such restrictions meet the test set out in Article 19 of ICCPR: (1) Is the limitation prescribed by law? (that the impugned measure must have some basis in law) (2) Does the limitation pursue a legitimate aim? (Three categories of restrictions to freedom of expression are generally authorised: (i) to protect the general interest –national security, public safety, protection of health and morals (ii) to protect other individual rights- protection of the rights and reputation of others or prevention of disclosure of information received in confidence) or (iii) to maintain the impartiality of the judiciary (3) Is the limitation necessary in a democratic society? –whether the reasons adduced by the state to justify interference is relevant or sufficient – in other words- does it correspond to a “pressing social need” (e.g. protection of economic well- being of the country) (4) Are the limitations proportionate to the aim pursued? The Courts often weigh the interests of the individual against those of the community to decide which prevails in particular circumstances and to what extent the rights encompassed could be curtailed in the interests of the community. It is in this context that the Courts recognise that the state enjoys a certain “margin of appreciation”- that authorities have a certain scope for discretion in determining the most appropriate measures to take in order to reach the legitimate aim sought. However, the margin of appreciation is not absolute and doesn’t prevent courts from critically assessing the proportionality of the measures taken by the state.

λ  All incitement cases should be strictly assessed under a six-part incitement test examining the:

ν Content of the expression;

ν Speaker/proponent of the expression;

ν Intent of the speaker/proponent of the expression to incite to discrimination, hostility, or violence;

ν Content of the expression;

ν Extent and magnitude of the expression including its public nature, its audience and means of dissemination;

ν Likelihood of the advocated action occurring, including its imminence.

4. Developing jurisprudence that balances freedom of expression with non-discrimination will require that the judiciary is well trained and regularly updates itself on international human rights standards and comparative jurisprudence regarding incitement to hatred through the application of the threshold test outlined earlier. Ensuring the right to fair and public hearing by independent and impartial tribunal established by law is integral with due attention to minority and vulnerable groups by providing them with legal assistance.

5. The European Commission against Racism and Intolerance recommend that persons who have suffered actual damage as a result of incitement to hatred must have a right to an effective remedy including a civil or non-judicial remedy for damages. There is a need to ensure the availability of a power, subject to judicial authorisation or approval to require the deletion of hate speech from web-accessible material and block sites using hate speech; require media publishers (including social media platforms) to publish an acknowledgement that something they published constituted hate speech and to enjoin the dissemination of hate speech and to compel the disclosure of the identity of those using it.

6. Legislation alone, however, is not sufficient in addressing hate speech. To tackle the root causes of intolerance, a much broader set of policy measures is necessary. We must work towards strengthening a culture of peace, tolerance and mutual respect. Government, media and society have a collective responsibility in ensuring that acts of incitement to hatred are spoken out against. The exercise of freedom of expression and a free and diverse media play an important role in promoting tolerance, diffusing tensions and providing a forum for peaceful resolution of differences but for this to happen the media needs to be socially responsible and ethically aware. Not only should political leaders refrain from using messages of intolerance and expressions, which may incite to violence, hostility or discrimination, they in fact have a crucial role in speaking out firmly and promptly against intolerance, discriminatory stereotyping and instances of hate speech. Hence my submission to the Law, Justice and Human Rights Standing Committee in relation to the Parliamentary Powers and Privileges Bill that parliamentary privileges cannot be used to legitimise hate speech. Incidentally, the European Commission against Racism and Intolerance encourage the adoption of appropriate codes of conduct for political parties, which provide for suspension and other sanctions for breach of their provisions as well as encourage political parties to sign a charter for a non-racist society.

7. The importance of counter-speech in demonstrating the falsity of the foundations on which hate speech is based through a specific, prompt and unqualified condemnation of actual use of hate speech cannot be underestimated. The clear condemnation of the use of hate speech is necessary not simply because it is entirely unacceptable in a democratic society but also because this serves to reinforce the values on which such a society is based. Such counter-speech should thus not just say that the use of hate speech is wrong but underline why it is anti-democratic. It is important that no one stands by and allows hate speech of any kind to be used without challenging it. Pluralism and diversity of the media including the new media, the Durban Declaration and Programme of Action and the Framework Convention for the Protection of National Minorities instructs us, promotes universal and non-discriminatory access to communication. Both Article 19 as well as Principle 9 of the Camden Principles, place a moral and a social responsibility on the media in combating discrimination and in promoting intercultural understanding by:

λ Designing and delivering media training programmes which promote a better understanding of issues relating to racism and discrimination, and which foster a sense of moral and social obligations of the media to promote tolerance and knowledge of the practical means by which it is done;

λ Ensuring that effective ethical and self-regulatory codes of conduct prohibit the use of prejudicial or derogatory stereotypes, and unnecessary references to race, religion and related attributes;

λ Taking measures to ensure that their workforce is diverse and reasonably representative of society as a whole;

λ Taking care to report factually and in a sensitive manner on acts of racism or discrimination, while at the same time ensuring that they are brought to the attention of the public;

λ Ensuring that reporting in relation to specific communities promotes a better understanding of difference and at the same time reflects the perspectives of those communities and gives members of those communities a chance to be heard;

λ Ensuring that a number of voices within communities are heard rather than representing communities as monolithic;

λ Promoting a culture of tolerance and a better understanding of the evils of racism and discrimination.

8. There needs to be a sustained commitment to promote equality of opportunity, to promote linguistic, ethnic, cultural and religious rights by embedding human rights education and values of diversity and pluralism into the school curriculum as well as sensitising law enforcement agencies to promote a better understanding of the need for diversity within the framework of democracy, human rights and the rule of law.

Thank you for listening


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