Rough edges
Democracy is not without its rough edges, and tough talk is part of the cut-and-thrust of public debate and discourse, he pointed out in an expert research paper for the Council of Europe.
The legal challenge is to identify the tipping point at which robust debate, contestation or criticism transforms into hate speech.
The ‘hate-speech spectrum’ graduates in terms of speaker intent, intensity of expression, and severity of impact. Therefore, context is key in calibrating responses to hate speech, Dr McGonagle says.
While the most egregious forms of hate speech can be dealt with by regulatory or criminal measures, others are best tackled through education and information.
“The regulatory framework must also be complemented by a framework for non-legal action,” Dr McGonagle told a recent Irish Human Rights and Equality Commission seminar on online hate speech.
Strategies
The Council of Europe is employing a number of concurrent strategies to counter hate speech, each characterised by its own priorities, emphases, and procedural possibilities, he said.
They include:
- Denial or reduction of legal protection for hate speech,
- Facilitation of expressive opportunities, especially access to the media, for minorities,
- Promotion of intercultural dialogue and understanding at societal level.
Watertight
Hate speech has not been defined in a watertight or authoritative way.
The term is a convenient shorthand for extremely negative discourse, stretching from hatred and incitement to hatred, to abusive expression and vilification, and arguably also to extreme forms of prejudice and bias, the researcher says.
“The right to freedom of expression necessarily covers expression that may ‘offend, shock or disturb’ certain groups in society (which is not the same thing as a right to offend),” he says.
But the right to freedom of expression has its limits and full-blown hate speech usually does not enjoy protection under European human rights law and will typically be prohibited at the national level, for example in Ireland by the Prohibition of Incitement to Hatred Act.
Protection
It is article 10 of the European Convention on Human Rights (ECHR) that is the centrepiece of European-level protection for the right to freedom of expression.
However, article 10(2) proceeds to trammel this core right by enumerating grounds by which the right may legitimately be restricted – provided that the restrictions are prescribed by law and are necessary in a democratic society.
Duties and responsibilities
The right to freedom of expression is subject to general duties and responsibilities, this clause says.
Dr McGonagle notes that the European Court of Human Rights has recently been developing indications of the content of internet actors' duties and responsibilities in respect of freedom of expression.
Legal clarification
This legal clarification is badly needed because as influential online gatekeepers, internet actors can play a key role in countering online hate speech.
It has developed a standard test to determine whether article 10 of the ECHR has been violated, though states are given a certain amount of discretion as to how they regulate expression.
This discretion, supervised by the European Court of Human Rights, is narrow in respect of political expression, but wider in respect of public morals, decency and religion.
This is usually explained by the absence of a European consensus on whether and how such matters should be regulated.
Legal arsenal
The Council of Europe’s strategies against hate speech include treaty-based approaches, monitoring systems, political and policy-making measures, educational, informational and cultural initiatives.
The Council of Europe's Committee of Ministers has also addressed this question in a recent political recommendation to the organization's 47 Member States.
Dr McGonagle believes the ECHR has a central position in the Council’s legal arsenal.
And the tension between freedom of political expression and the permissibility of hate speech is the real stress test for the ECHR’s commitment to the right to freedom of expression.
Intended purpose
The European Court of Human Rights used the actual term ‘hate speech’ for the first time in 1999, but without explaining its introduction, intended purpose, or relationship with existing case-law.
So far, the court has refrained from defining the term, and prefers to analyse each case submitted to it on its own merits.
Rationales for the protection of freedom of expression are numerous, rich and varied, and include democratic participation, individual self-realisation, the search for truth, and distrust of government.
Arguments from democracy
“Arguments from democracy have traditionally and consistently enjoyed pride of place in the article 10 case-law of the court,” Dr McGonagle says in his research paper.
The court has also held that free elections and freedom of expression, particularly freedom of political debate, together form the bedrock of any democratic system.
“Notwithstanding the importance of clarifying some doctrinal divergence in the case law of the European Court of Human Rights, the Council of Europe is ideally placed to compile a detailed tool-kit of concrete anti-hate speech measures/best practices that could be adopted by political parties throughout Europe,” Dr McGonagle concludes.
Preventive approach
Emily Logan, Chief Commissioner of the Irish Human Rights and Equality Commission, also called for a stronger preventive approach to the rise of inflammatory racist online speech, after the 28 November seminar.
“The potential for intolerance online to shape the public debate – and resulting political debate – offline is becoming one of the hallmarks of the digital age.
“While there is no doubt that the Prohibition of Incitement to Hatred Act 1989 is not fit for purpose and should be modernised, a legislative refresh is not the only solution to tackle online intolerance,” the chief commissioner said.
New norms
“Cultural change is possible, and new norms can be established – particularly by those with power and influence.
“Ireland needs leadership from across society to play a more discernible role in preventing the spread of online intolerance,” she said.