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Manual on hate speech

Manual on hate speech

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Published by Council of Europe
The right to freedom of expression entails duties and responsibilities and is subject to certain limits, provided for in Article 10.2 of the European Convention on Human Rights, which are concerned, among other things, with protecting the rights of others. Identifying what constitutes “hate speech” is especially difficult because this type of speech does not necessarily involve the expression of hatred or feelings.

On the basis of all the applicable texts on freedom of expression and the case law of the European Court of Human Rights and other bodies, the author identifies certain parameters that make it possible to distinguish expressions which, although sometimes insulting, are fully protected by the right to freedom of expression from those which do not enjoy that protection.
The right to freedom of expression entails duties and responsibilities and is subject to certain limits, provided for in Article 10.2 of the European Convention on Human Rights, which are concerned, among other things, with protecting the rights of others. Identifying what constitutes “hate speech” is especially difficult because this type of speech does not necessarily involve the expression of hatred or feelings.

On the basis of all the applicable texts on freedom of expression and the case law of the European Court of Human Rights and other bodies, the author identifies certain parameters that make it possible to distinguish expressions which, although sometimes insulting, are fully protected by the right to freedom of expression from those which do not enjoy that protection.

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Published by: Council of Europe on Oct 25, 2010
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In multicultural societies, which are characterised by a variety o cultures, religions and liestyles, it is sometimesnecessary to reconcile the right to reedom o expressionwith other rights, such as the right to reedom o thought,conscience and religion or the right to be ree rom dis-crimination. Tis reconciliation can become a source o problems, because these rights are all undamental ele-ments o a “democratic society”.Te European Court o Human Rights (hereinater theCourt) has thereore armed that reedom o expressionas guaranteed under article 10 o the European Conventionon Human Rights (hereinater the Convention or ECHR)“constitutes one o the essential oundations o such a soci-ety, one o the basic conditions or its progress and or thedevelopment o every man.
 But however vast the scope o reedom o expression,some restrictions to the exercise o this right may in somecircumstances be necessary. Unlike the right to reedomo thought (inner conviction or
 forum internum
), the rightto reedom o expression (external maniestation or
 forumexternum
) is not an absolute right. Te exercise o this ree-dom carries with it certain duties and responsibilities and issubjected to certain restrictions as set out in article 10(2) o the ECHR, in particular those that concern the protectiono the rights o others.Te European Court has always armed that “it is particu-larly conscious o the vital importance o combating racialdiscrimination in all its orms and maniestations.
Tus,
1
 Handyside v. the United Kingdom
, judgment o 7 December 1976,Series A No. 24, para. 49.
 
2
 Jersild v. Denmark 
[GC], judgment o 23 September 1994, Series ANo. 298, para. 30. o emphasise this statement, the Court reers,
Introduction
 
 Manual on hate speech
it has emphasised in various judgments “that tolerance andrespect or the equal dignity o all human beings constitutethe oundations o a democratic, pluralistic society. Tat be-ing so, as a matter o principle it may be considered neces-sary in certain democratic societies to sanction or even pre- vent all orms o expression which spread, incite, promoteor justiy hatred based on intolerance (including religiousintolerance), provided that any “ormalities”, “conditions”,“restrictions” or “penalties” imposed are proportionate tothe legitimate aim pursued.
 Te challenge that the authorities must ace is thereore tond the correct balance between the conicting rights andinterests at stake.
Conictingrightsandinterests
Several rights, equally protected by the Convention, cancompete in this regard. Te right to reedom o expressioncan thus be limited by the right to reedom o thought,conscience or religion. Conronted with attacks on religiousbelies the European Court o Human Rights has high-lighted that the question involves “balancing the conictinginterest that result rom exercising those two undamentalreedoms: on the one hand, the applicant’s right to com-municate his ideas on religious belies to the public, and,on the other hand, the right o other persons to respect o their right to reedom o thought, conscience and religion.
 In some circumstances, reedom o expression can also bea threat to the right to respect o privacy. And, nally, thereis the risk o conict between reedom o expression andthe interdiction o all orms o discrimination in those caseswhere exercising this reedom is used to incite hatred andshows the characteristics o “hate speech”.
in its decision
Seurot v. France
(dec.), No. 57383/00, 18 May 2004,to the ECRI’s statute, more precisely to “the text o resolutionRes(2002)8 o the Committee o Ministers on the statute o theEuropean Commission against Racism and Intolerance (ECRI)which aims to reinorce the action o the ECRI, convinced o the need to take rm and sustained action at European level tocombat the phenomena o racism, xenophobia, anti-Semitism andintolerance.”3
Gündüz v. Turkey,
No. 35071/97, para. 40, CEDH 2003-XI, and
 Erbakan v. Turkey
, No. 59405/00, para. 56, 6 July 2006.4
 Aydın Tatlav v. Turkey
, No. 50692/99, para. 26, 2 May 2006.
 
Introduction
Theconcepto“hatespeech
No universally accepted denition o the term “hate speech”exists, despite its requent usage. Tough most States haveadopted legislation banning expressions amounting to “hatespeech”, denitions difer slightly when determining whatis being banned. Only the Council o Europe’s Committeeo Ministers” Recommendation 97(20) on “hate speech”dened it as ollows: “the term “hate speech” shall be un-derstood as covering all orms o expression which spread,incite, promote or justiy racial hatred, xenophobia, anti-Semitism or other orms o hatred based on intolerance,including: intolerance expressed by aggressive nationalismand ethnocentrism, discrimination and hostility against mi-norities, migrants and people o immigrant origin.” In thissense, “hate speech” covers comments which are necessarilydirected against a person or a particular group o persons.Te term is also ound in European case-law, although theCourt has never given a precise denition o it. Te Courtsimply reers in some o its judgments to “all orms o expression which spread, incite, promote or justiy hatredbased on intolerance (including religious intolerance).
Itis important to note that this is an «autonomous» concept,insoar as the Court does not consider itsel bound by thedomestic courts” classication. As a result, it sometimesrebuts classications adopted by national courts
or, on thecontrary, classies certain statements as “hate speech”, evenwhen domestic courts ruled out this classication.
Te concept o “hate speech” encompasses a multiplicity o situations:
5
Gündüz v. Turkey
, op. cit, para. 40;
 Erbakan v. Turkey
, op. cit.,para. 56.6 See, or example,
Gündüz v. Turkey
: unlike the domestic courts,which classied the applicant’s statements as hate speech, theCourt is o the opinion that the statements made cannot be re-garded as such (op. cit., para. 43).7 See to that efect,
Sürek v. Turkey
[GC], No. 26682/95, ECHR1999-IV: the Court concluded in this instance that there had beenhate speech, whereas the applicant had not been convicted o incitement to hatred but o separatist propaganda, since the do-mestic courts considered that there were no grounds or convict-ing him o incitement to hatred.
AccordingtotheCommit-teeoMinisters,hatespeechcoversallormsoexpres-sionwhichspread,incite,promoteorjustiyracialhatred,xenophobia,anti-Semitismorotherormsohatredbasedonintolerance.

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