Freedom of expression; hate speech

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Incitement or Free Speech?
Legal Limits to Freedom of Expression
Katrin Nyman-Metcalf
Tallinn Law School
Tallinn University of Technology
Akadeemia road 3, 12618 Tallinn, Estonia

Abstract: Freedom of expression is a key human right both in itself and as a necessary prerequisite for other rights and for a functioning democracy. As most rights it is not unlimited. The exercise of this right may mean violation of other rights, like the right to privacy. Consequently certain possibilities to limit freedom of expression are deemed to be in accordance with the basic freedom. One such limitation is legislation against incitement to hatred and violence. It is prohibited to use one’s freedom of expression to call for violent acts against others or generally to stir up hatred to such an extent that others are put at risk. Freedom of expression does not only protect useful or nice expressions, but any
expressions that are not against the law. What kind of incitement that should be prohibited and actively prevented by actions of authorities is very different in different societies. To examine incitement of hatred and violence against homosexuals is particularly interesting as the apparently paradox situation may arise that as a society becomes more permissive and less homophobic, more hate speech against homosexuals must be allowed as there is less real risk of such speech
leading to any consequences.

Keywords: anti-discrimination, discrimination based on sexual orientation, EU law, European Court on Human Rights, freedom of expression, incitement to hatred and violence


Freedom of expression is a key human right both in itself and as a necessary prerequisite for other rights and for a functioning democracy. As most rights it is however not unlimited. The exercise of this right may mean violation of other rights, like the right to privacy. Consequently certain possibilities to limit
freedom of expression are deemed to be in accordance with the basic freedom.

One such limitation is legislation against incitement to hatred and violence. It is prohibited to use one’s freedom of expression to call for violent acts against others or generally to stir up hatred to such an extent that others are put at risk.
Freedom of expression does not only protect useful or nice expressions, but any expressions that are not against the law. The European Court of Human Rights (ECtHR) has stipulated clearly that also negative speech is protected and it is thus not reasonable to limit freedom of expression because some speech is not of any use or is unpleasant. This must be kept in mind when looking at possible limitations of hate speech: the fact that utterances are hateful is not in itself a reason not to give protection to them.

The kind of incitement that should be prohibited and actively prevented by actions of authorities is very different in different societies. What is likely in a volatile, post-conflict and ethnically divided society to lead to violence may not raise an eyebrow in a stable, homogenous democracy. To examine incitement of hatred and violence against homosexuals is particularly interesting as the apparently paradox may arise that as a society becomes more permissive and less homophobic, more hate speech against homosexuals must be allowed as there is less real risk of such speech leading to any consequences. In a society with a lot of homophobia, it is relatively easy to incite to hatred and violence.

Also indirect negative utterances about homosexuals may lead to people taking action like being violent against homosexuals, discriminating against them and so on. If the situation is better and there are fewer prejudices, negative utterances about homosexuals will not be likely to have such effect as they will not be in line with the expectation of the audience. People will not let themselves be incited to act against a certain group if this group is accepted in society.

The question of incitement to hatred and violence against homosexuals and regulation of hate speech against this group is topical in many respects. In the United Kingdom, an amendment to the Criminal Justice and Immigration Act from 2008 deals with “Hatred on the grounds of sexual orientation” meaning a prohibition on stirring up hatred based on sexual orientation. The ban is not linked to homosexuality but this is what the heated debate has mostly been about (Johnson & Vanderbeck, 2010, p. 1). What the debate circled around was not in fact the protection of sexual minorities but rather how people with homophobic views based on religious convictions had faced discrimination and limitation of their freedom of expression.

This debate is very interesting as it illustrates a situation in which the protection
of rights of sexual minorities has a strong enough foundation for other groups to
feel that this very protection endangers their right to free speech. In a situation
where the authorities do not impose value judgements, the protection of any group to express themselves must be equally strong provided they do not cause harm to another group. Thus, the protection of rights of sexual minorities must not mean an infringement of rights of other groups. However, only in case there is incitement of hatred and violence against this other group is there a need to prevent negative utterances. The situation may have changed concerning who feels discriminated and ostracised, but the reasons for allowing freedom of expression including for airing unpopular views should be the same.1

The same general principles apply also to hate speech against any groups, such as certain ethnic groups. However, in such cases, there may be other factors such as the relationship between countries that also play a role for what kind of speech is acceptable and what may lead to real negative consequences. For sexual minorities the issue of the attitude toward a certain group is more clearly seen, which is why it is interesting to select this particular group as an example of the changing aspects of law and reality that must be kept in mind when determining what is incitement to hatred and violence of such dignity and seriousness that prevention of it becomes more important than the protection of freedom of expression.2

This article examines the issue from a European perspective, with a few comments also about other countries but generally set in a framework of liberal democracies. For societies where homosexuality is outlawed the mentioned debate is not of direct interest, as there the law is not protecting sexual minorities, but rather restricting them. This raises many interesting points of the state itself being the potential perpetrator of incitement, but the legal questions linked to this are different than those that form the main topic of the article.

The article is written from a legal perspective and does not discuss the philosophy
of ideas, which although it is important for the discussion on freedom of expression and means for society to impose values, is distinct from the legal discussion on the matter. To treat the topic from a philosophical as well as a legal angle would require a much larger paper.

It is not the intention here to go in detail into the background and philosophical justification for freedom of expression. However, it is interesting for the topic to touch briefly upon the theories underlying free speech the way they have been accepted and built upon by e.g. ECtHR. Dommering (2008) sums up the main theories as those based on the argument from truth and the argument from democracy. The free marketplace of ideas is another popular description of the benefit of free speech. The special preferred position of political speech is another aspect of the idea of media and freedom of expression as a basis for democracy (Dommering, 2008, pp. 44–45, 51–52). This illustrates why also negative and unpleasant speech should be protected. ECtHR in its wellknown cases that still form the basis of its main view, like the Handyside case (7 December 1976, Appl. 5493/72), stressed not only that freedom of expression is one of the essential foundations of democratic society but also specifically that this means that the freedom does not extend only to ideas that are favourably received or inoffensive but also to ideas that offend, shock and disturb the State or any sector of the population (page 23, paragraph 49). In the Sunday Times case (26 April 1979, Appl. 6538/74) the ECtHR underlined that the public’s right to know means that mass media has a duty to impart information. Dommering (2008, p. 46) stresses that the messenger is protected even when he brings bad news. ECtHR in Jersild (23 September 1994, Appl. 15890/98) stated that if
a journalist could be punished for reporting offensive statements, this would hamper free debate and the press’ contribution to discussions on matters of public interest. Such punishment of journalists must only happen if there are particularly strong reasons for it. The Jersild case dealt with hate speech in relation to racist speech. The ECtHR stated that the question in the case was what restrictions are necessary in a democratic society.

Permissible restrictions on freedom of expression can be founded on specific historic and traditional aspects. Holocaust denial laws should be seen in this context and the ECtHR has found these to be permissible restrictions (The Garaudy case, 24 June 2003, Appl. 65381/01; Dommering, 2008, p. 53). The justification for such specific laws is in the opinion of the present author not easy to see and the special historical context is unfortunately not a strong argument as there are so many atrocities committed by different groups at the same time as the Holocaust and sadly also many times since. If denial of one atrocity is prohibited many different kinds of atrocities should perhaps be equally banned. In reality denial of e.g. Stalin’s crimes is permitted in countries that outlaw Holocaust denial. To extend the ban on Holocaust denial to cover denial of any crimes against humanity (as has been attempted in France) could however lead to major limitations of free speech with all the negative consequences that has.

Explicit bans on certain types of content in a society with a free media present
an anomaly and should be imposed only when certain content is harmful to such a great extent that this aspect always takes precedence over the freedom of expression aspect (child pornography comes to mind). The problem with Holocaust denial laws is that it is not just expression in a certain setting or of a certain type that are prohibited but it is the detail of the content of the information that triggers the prohibition. Such prohibitions do not fit well with freedom of expression. The Austrian Holocaust denial law was used as recently as 2005 against the British historian David Irving (subsequently successful in his appeal), which lead to a debate on whether such a law and imprisonment under it could really be justified in a situation where the statements made were unlikely to have any real effect on Austrian society one way or the other (Nyman-Metcalf, 2008, p. 208).

Another relevant aspect of the case law of the ECtHR is that related to value judgements. Value judgements and factual judgements should be seen differently (8 July 1986, Appl. 9815/82). This is the same issue as the important principle of broadcasting regulation that opinion should be distinguishable from facts. As with many of the principles set out for allowing limitations on freedom of expression the problem is that it is difficult to make the exact distinction between opinion and fact. The ECtHR has found that negative value judgements must be grounded in fact with the factual basis if not the value judgement as such proved (De Haes and Gijssels case, 24 February 1997, Appl. 19983/92; Dommering, 2008, pp. 54–55). This makes the dividing line between the two kinds of statements almost more difficult to draw. This situation can be imagined in relation to homophobic expressions where “scientific facts” can be used to incite to discrimination, but if these same issues are presented as opinions it may be hard to prevent them. The question of artistic speech is also interesting.

Such speech is protected and as the role of artistic speech is a specific one, one in which provocation and satire may have a part, this area may provide another backdrop against which potentially inciting statements must be seen. The ECtHR affords protection to artistic speech but also in this context refers to national judgements of morality and decency (Cases Otto Preminger Institut, 20 September 1994, Appl. 13470/87 and Wingrove, 25 November 1996, Appl. 17419/90; Dommering, 2008, p. 57).

The ECtHR case law shows that the idea that the messenger that brings matters of public interest to the public’s attention should have special protection is not only related to hate speech but generally to protect media against allegations it is engaging in illegal activities.3 It is quite possible that the role of mass media
to spread information is more important than the possible violations of law and the free speech is still protected. The importance given to freedom of expression in the balancing of this right with other rights is consistent in ECtHR case law and especially so for media.

When discussing limiting rights such as freedom of expression this right can be
contrasted with other specific rights but it is also possible to refer more generally
to human dignity and that certain expressions shall not be permitted as they violate human dignity. The danger with such an argument is that it makes it even easier to limit freedom of expression than when it is done with reference to another specific right (like the right to privacy). If there are two separate rights to weigh against one another, this provides some guidance on which one takes over and how. If a right has to stand back for something as vague as human dignity, the scope for ad hoc and subjective judgements is larger.

However nice the idea may seem to prevent negative speech that infringes on human dignity, the importance of freedom of expression and the principle that basically all forms of expression – also negative ones – are protected needs to be kept in mind. McCrudden (2008) mentions examples from Israeli courts where protection of artistic expressions had to stand back for the protection of dignity that meant that certain racist and sexist speech was banned. He also refers to a US–German agreement on cultural property where assailing human dignity is prohibited, linked however to a risk of incitement (McCrudden, 2008, pp. 702–703). In such a case, there is a restriction on freedom of expression because of the content of the expression not being in line with the official view of the country in question. Put like this, it should be clear that such rules fit poorly with the kind of protection of human rights that democratic states should afford even if they at a first glance may have seen like commendable attempts to make everyone in a society feel good.

One interesting aspect that raises new questions about the special role of media
for freedom of expression is the various forms of new media, with internet blogs, forums and similar user-created content that is more or less similar to traditional mass media (Dommering, 2008, p. 47). If one reason why media is allowed considerable leeway is that it should itself take care of ethical issues through editorial control, self-regulation and similar, it is interesting if widespread “media like” information society content that lack such control mechanisms should be given the same kind of freedom as traditional media to even violate other rules in order to bring information to the people. If the answer is no, that without the guarantees and controls of traditional media there can be no extensive freedoms, the question of the borderline between traditional and “new” media immediately arises. This question is still to a large extent open, both when seen through the case law and practice of international legal bodies and when considered from the viewpoint of national regulators.

Prohibition on incitement to hatred and violence

Many countries have legislation against incitement to hatred and violence. Most often the prohibition will be in criminal law and apply to any means of incitement. The provisions are not only directed at media, but as media is one of the main ways to incite, in practice rules against incitement are very important in a media context. Such provisions are complicated to apply as they refer to a potential causal relationship between an action and a consequence of this action. The consequence cannot be known at the time of taking action against incitement and it is not possible to wait for the consequence before action is taken, as the point of rules against incitement is to prevent that a certain consequence arises. To determine if a violation has taken place presumptions must be made about the possible consequences.

Hate speech is a similar concept to that of incitement although not exactly the same. Hate speech is not in the same way linked to a consequence of leading to some action, even if the reasoning behind outlawing hate speech is very similar to that of outlawing incitement. In both instances there is a fear of utterances leading to negative consequences for individuals. Hate speech rules may exist parallel to incitement rules, but in many countries with a strong protection for freedom of expression they are seen in one context, as hate speech is only outlawed if it may lead to certain consequences – i.e. the same as incitement.

The above-mentioned Holocaust denial laws are a special category as the idea to single out a specific content and decide that it is inciting is unusual and would not be regarded as in accordance with a proper protection for freedom of expression other than in very special circumstances.

Generally the nature of incitement means that it is not possible to determine logically or based on a pre-set model what is permitted to say and what not. The key is instead the body that deals with the issue. This body must be competent to determine the various relevant aspects and thus must be aware of attitudes in
the society in which it operates. The difficulty to establish such a body is felt
in the often complex process of creating regulatory agencies. Guidelines can
give exactly that – guidance – but it is not advisable to set out in binding rules
exactly what can be said. Apart from this being extremely difficult it leads to
a situation where possible loopholes would be sought out plus it would lead to
exactly the situation that this article wants to point out may happen: that rules
are not in line with society’s attitudes. Satire and jokes are for example generally
seen as accepted but the issue must be such that the joke can be seen as a joke.
The negative effect on freedom of expression of having detailed rules on what
can be said is also significant.

In some contexts the legislator has balanced the different views of different groups, of private and public sphere and so on. In such cases the authorities applying legislation or courts determining cases based on the legislation have
less room for this balancing. In other instances, the legislation only provides a
framework and the balancing is for the applying authority (Stychin, 2009, p.
752). When it comes to media regulation and prohibitions of incitement, the
balancing is to a large extent left to the implementing organ, as it is very hard
if not impossible to foresee and describe adequately situations that may arise
and when a certain situation gives rise to genuine risk of violent acts because of
inciting statements.

As Stychin (2009, p. 746) puts it, one can distinguish the identity from the act (the sinner from the sin) – one can find certain behaviour immoral but be against discrimination because of this behaviour. In media-related matters, added to this
is the question when expressing a belief and trying to impress it on others in reality becomes a way of making life for a certain group very hard. Does one
have to be silent about the views one holds against a certain group or can one
discuss them as long as this is not intended to cause harm?

Attitudes to homosexuality in international law

To change the perception of homosexuals and reduce the risk of discrimination and prejudice is a long-term and inclusive process. Different societies have recognised that laws and rules contribute to a negative image and such an image has further repercussions and may thus exacerbate the negative situation. With such explanations laws on sodomy have been declared unconstitutional in several jurisdictions. In South Africa the court found that a law that prohibits a certain sexual expression contributes to degrade and devalue those who engage in such practices. This was found to be against human dignity and consequently unconstitutional (McCrudden, 2008, p. 691). In Ontario, Canada, bans on same-sex marriage were equally seen to be against the dignity of homosexuals

Many international bodies have in recent years adopted decisions or decided cases
that show that there is a principle of non-discrimination against homosexuals.

These cases include the ECtHR Karner v. Austria case (24 July 2003) as well as labour tribunals in the International Labour Organization (ILO) (101st session 2006 AHRC v. ILO and DB v. ILO, judgements 2549 and 2550 of 12 July 2006)4. These cases dealt with work relations and rights to rental agreements. In recent judgements the European Court of Justice (ECJ) has shown that there is a European non-discrimination law that does not just include the classical EU on-discrimination based on (EU) nationality, but that includes a ban on discrimination based on other issues, namely those that follow from Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. The Case C-144/04 Werner Mangold v. Rüdiger Helm (decided on 22 November 2005) held that there is a general principle of non-discrimination based on age, something that many commentators found somewhat surprising as the legal foundation for such a common principle was rather weak (Eriksson, 2009, pp. 732–733). In this case the ECJ stated that the principle of non-discrimination (in this case on the ground of age) is a general principle of Community law (in Mangold at paragraph 75). Such a statement is relevant, as this means that even if there is for example (as in this case) a transposition period or other reasons why a particular rule in a Directive cannot be directly applied, there is in any case an underlying general principle. It is established by the ECJ in many cases that such general principles are found based on international instruments, EU legal instruments as well as common
traditions of the Member States.

The first time the ECJ can be said to have taken a quite explicit stance in favour of
same-sex couples was in the Case C-267/06 Tadao Maruko v. Versorgungsanstalt
der deutschen Bühnen (decided 4 April 2008). Prior to this the ECJ had in some cases been faced with questions of equal treatment of same-sex couples, for example in staff cases, but although it generally does not allow discrimination it had in the view of many commentators ducked the issue of treatment of such couples, leaving this up to the Member States. In the Case C-249/96 Grant v. South-West Trains (decided 17 February 1998) on discrimination of same-sex couples regarding benefits given to employees the ECJ found that the treatment was not against EU (then EC) law, depending on the then legal framework – making what some commentators see as a more cautious interpretation of what the legal possibilities were than what the Court usually shows evidence of. The Maruko case as well shows the Court being careful so as not to invade upon the competence of the Member States to decide if to recognise same-sex marriage for example. Instead the ECJ focuses on the issue at hand, a widower pension, and absence of discrimination in this context. Even so, this is the first explicit recognition by the ECJ of the presumption of comparability of same-sex couples with couples of different sexes (Eriksson, 2009, p. 745).

The Case C-54/07 Centrum voor gelijkheid van kansen en voor racismebestrijding v. Firma Feyn (decided 10 July 2008) broadened non-discrimination law in another way, namely by relying on non-discrimination provisions even when a specific victim was not identified. By this, Eriksson (2009, pp. 747–748) finds that EU non-discrimination law has been broadened from supporting subjective rights of specific individuals to underlining pre-emptive societal rights. However, it is also in this case that the most interesting pronouncements for the issue of freedom of expression are made. The ECJ does not discuss to what extent the employer accused of discrimination in the case can rely on his right to freedom of expression. It builds on the idea that it is settled European case law that freedom of expression can be limited if it is in the general interest and proportional to this interest, as set out in the Case C-112/00 Eugene Schmidberger Internationale Transporte und Planzüge v. Republik Österreich (decided 12 June 2003). As Eriksson (2009, p. 748) stresses, the principles of equality and non-discrimination are in the general interest of the EU. In her view these interests prevail so freedom of expression considerations would not have lead to a different outcome, but general racial discrimination would still be against EU non-discrimination law. From this, she draws the conclusion that
other groups that cannot be discriminated against under EU law – including homosexuals – are also protected from public statements of unwillingness to employ them or similar. Eriksson agrees that it is a shame that the ECJ did not discuss the freedom of expression aspects more and the current author shares that view: indeed, the present author finds that Eriksson’s assertion that such a discussion would not have changed matters is a bit sweeping or appears to lend too little weight to freedom of expression.

As concerns international standards and monitoring of these through e.g. the ECtHR the Court has acknowledged that setting limits of what speech is acceptable in matters of religion and morality is to a great extent left up to the Member States (Dommering, 2008, p. 51). The ECJ has taken a similar view. This means that outside of the basic rights, there can be differences in how well accepted certain kinds of expressions are and something may be morally offensive or inciting in one country but not in another, without this preventing international bodies from having a common policy in general.

Changing attitudes on what is incitement?

Discussions on legislation against incitement may often in fact deal with whether it is right to single out certain behaviour and make it illegal or whether existing, general legislation will be enough. Thus it does not have to be a black-and-white situation where the choice is if homophobic speech can be sanctioned or not, but rather a question of how to regulate grey areas.

An interesting debate on what values are endangered arose when the United Kingdom in 2008 discussed an amendment to the Criminal Justice and Immigration Act to introduced a crime called “Hatred on the grounds of sexual orientation”, which made it illegal to stir up hatred based on (any) sexual orientation (Johnson & Vanderbeck, 2010, p. 1). The discussions around the law were very heated with differences of opinion between the House of Commons, the Government and the House of Lords, not least regarding religiously motivated negative comments about homosexuality. On the insistence of the House of Lords such utterances are explicitly excluded from the law. The Government felt they were excluded as not
being inciting in the sense that the legal provision wants to prohibit (Johnson &
Vanderbeck, 2010, p. 2). In the debate on the legislation, many examples were brought up of people with homophobic views that had allegedly been interrogated in a threatening manner (under previous legislation). In the words of Johnson and Vanderbeck this presents an interesting sea change: from having been regarded as heterosexist and anti-gay, police officers were depicted as the vanguard of a pro-gay agenda, abusing people of faith. Another statement in the debate was that
police has to operate in a politically correct environment in which they have to
take silly complaints seriously (Johnson & Vanderbeck, 2010, pp. 4–7).

The debate was more focused on what legislation is needed than on whether discrimination and other measures against homosexuals could be reacted to at all. Before introducing the special provision on homophobic incitement, the broadcast regulator had reacted against homophobic statements. Various antidiscrimination legislation was also applicable (Leigh, 2008, p. 339). In a society where it has become accepted to react against overt discrimination against sexual minorities and where norms of behaviour are in place in different contexts, the scope for limiting freedom of speech even more in protection of a group that is
not in particular danger will be hard to justify.

The Netherlands and Sweden can both be said to be countries where homosexuals enjoy protection of their rights and where the debate around homosexuality is free and open. It is in line with this that there are from both these countries examples of cases where the highest courts have thrown out convictions of incitement to hatred and violence against homosexuals, even when in both instances it was clear that the accused had indeed spoken against homosexuals in an explicit and quite aggressive manner. Even so, freedom of expression allowed them to make such statements. The respective court cases argue more around the extent of freedom of expression as well as freedom of religion (as in both cases the statements were made on a religious foundation) than the fact that the risk for actual negative actions against homosexuals are reduced due to their cceptance in society, but even without wanting to put words into the mouth of the courts, it may be presumed that this fact was relevant in their deliberations (Leigh, 2008, p. 341).5

Leigh (2008, p. 341) stresses that in defining incitement to hatred, one difficulty
is to define hatred. Also disturbing speech is protected by the freedom of expression as is a free debate. To have such a debate, all kinds of views must be expressed.

Concluding remarks

Basically for any limitation of free speech the question needs to be asked if a limitation is necessary and proportional. The ECtHR formulates it so that a limitation must be necessary in a democratic society (as well as set out in law). It is clear from international case law that the human right of freedom of expression is extensive. It includes disturbing and offensive speech on the understanding that it is better that information gets out to people so they can react to it and on it. There is no quality control for what kind of information that should be permitted in the marketplace of ideas. At the same time, total freedom of speech could be used as an excuse to incite hatred and violence, to make people’s lives a misery or even to endanger their lives. When being called bad names or accused of immoral behaviour or similar is unlikely to lead to more than discomfort, freedom of expression has a right to prevail, however unpleasant the situation may be for individuals that are targeted in this manner. 5 Leigh contrasts these cases with one from the UK in which the person advocating against homosexuals was convicted and feels that the case did not adequately respect freedom of expression of the person with homophobic views. Green Case No B 1050–05, issued in Stockholm on 29 November 2005.

Legal Limits to Freedom of Expression

Freedom of expression includes that they can counter the negative information and get their ideas out in the marketplace as well. This is the way to combat prejudice, not to prevent it from being uttered.

Anti-discrimination laws should aim at balancing rights of all, but it may well be so that such legislation is not morally neutral, as it shows that certain groups and behaviours are worthy of protection. For example, it shows that homosexual behaviour must be protected which can be seen as a sign that there is an imposition of a societal understanding of common good (Stychin, 2009, p. 731). In the present author’s view, anti-discrimination legislation should really just aim at preventing discrimination just as anti-incitement legislation should stick to this aim. Legislation should not aim at making people like certain behaviour but to accept any legal behaviour and views. Such a societal imposition cannot be seen as being too far-reaching. The difficult question in this context is when expressing an opinion that is not in line with that which society wants to protect becomes a threat to society and should be prevented. It is clear that just holding an opinion but not in any way acting upon it in violation of any laws cannot be prohibited in a rule of law state.

At a certain point when a particular group is accepted enough for there to be very little if any real risk that they would be attacked or harmed even if media portrays them in a negative light, the limitations on restrictions on free speech in the interest of preventing incitement to hatred and violence must be adjusted so that free speech is not too restricted. Offensive speech is also protected and to move away from this principle is a dangerous limitation on freedom of speech, mainly because someone will have to make the decision what is desirable and what is offensive and negative speech. From there the step to censorship is not large.


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