Hate speech and related

matters

Dr Venkat Iyer
Barrister
Senior Lecturer, University of Ulster
Introduction

• Balancing free speech interests and freedom

from racial, religious, etc. attacks
• The importance of free and frank public discourse
in liberal democracies
• But risks in fragile, deeply-divided societies
• Responsibilities and dilemmas of journalists
Basis of hate speech laws
 Prevention of disorder
 Avoidance of incitement to violence
 Subject-matter of restrictions may
vary from country to country (race,
religion, community, etc.)
 Mere offence not enough to ban
speech
General principles
 Need to construe restrictions strictly
 Need to apply sanctions sparingly
 Need to provide maximum freedom
for expression
 Need to avoid self-censorship
 Need for strong judicial protections
Some applicable standards
 Art 20 of the ICCPR requires the prohibition of
advocacy of national, racial or religious hatred where
it would lead to ‘discrimination, hostility or violence’
 Art 4 of CERD requires govts. to make punishable the
dissemination of ideas based on racial superiority – a
position that some govts. have disagreed with (e.g.
the US)
 The UN Human Rights Cttee has held that a Canadian
law which punished the operator of a telephone
service where pre-recorded messages of an anti-
Semitic nature could be accessed was lawful (JRT and
WG case, 1981)
Examples of hate speech laws
 ‘Threatening, abusive or insulting’ speech aimed at, or
likely to cause, racial, religious, etc. hatred (Public
Order Act, UK)
 ‘Inciting hatred against any identifiable group where
such incitement is likely to lead to a breach of the
peace’ or ‘wilfully promoting hatred against any
identifiable group by communicating statements other
than in private conversations’ (Criminal Code,
Canada) – however, truth was allowed as a defence to
any charge
 ‘Promoting, or attempting to promote … disharmony
or feelings of enmity, hatred or ill-will between
different religious, racial, language or regional groups
or castes or communities’ (Penal Code, India)
Examples of hate speech laws
 ‘Implying that any class of persons cannot,
by reason of their being members of any
religious, racial or … group … bear true
faith or allegiance to the Constitution of
India … or uphold the sovereignty and
integrity of India’ (Penal Code, India)
 ‘Insult, or attempting to insult, the religion
or religious belief of any class of persons
with deliberate intention to outraging their
feelings’ (Penal Code, India)
Indicative case law
 Risks during live broadcasts (Jersild v. Denmark,
1994)
 Conviction of the author of a tract which strongly
criticised immigrant workers in the Netherlands and
called for a homogenous society was held to be legal
(Glimmerveen & Ors. v. Netherlands, 1978, Eur.
Comm.)
 Complaint about breach of Australian broadcasting
standards was upheld where a radio talk host said to
an Aboriginal caller: “I’ll tell you what, Stewart, you
are so typical of so many of your race. You’re
belligerent, you’re a bully, you’re a loud-mouth,
you’re ill-informed, you’re plain bloody stupid” (John
Laws v. Australian Broadcasting Tribunal, 1987)
Indicative case law
 The conviction of a person in Canada for anti-Semitic
preachings (that Jews were ‘trecherous’, ‘subversive’,
‘sadistic’, ‘money-loving’, ‘power-hungry’, ‘child-
killers’ and that they ‘created the Holocaust to gain
sympathy’) was held to be legal (R. v. Keegstra,
1990, Sup. Ct. Canada)
 While construing hate speech statutes, the article in
question must be read as a whole for malicious
intention – in the absence of such intention, no
offence is committed; the court should also have
regard to the class of persons for whom the article is
primarily intended, and the state of feelings between
the relevant classes or communities (Babulal Patel v.
The State, India, 1980)
Indicative case law
 Rational criticism, made in good faith, even
if it has a tendency to wound the feelings of
followers of a religion, is not punishable, if
the aim of the criticism is to facilitate social
reform by administering a shock to the
followers of that religion (Shiv Ram’s case,
1955, India)
 Charge against a British editor for
suggesting that violence against Jews
might be the only way of stopping Zionists’
terrorists’ activities against British forces in
Palestine held illegal (R. v. Caunt, 1948)
Other examples
 Racist abuse heaped on Shylock and
Othello by Shakespearean characters
 Sale of Nazi memorabilia
 Reports of racially sensitive speeches made
during privileged occasions (e.g. public
meetings at election time)
 Racially provocative speeches made by
minority extremists (e.g. Black Power
activists)
Obscenity
 An article is usually deemed to be obscene
if it, taken as a whole, tends to deprave
and corrupt those who are likely to read,
see or hear the matter contained or
embodied in it (Obscene Publns. Act, UK)
 ‘Deprave’ means ‘to make morally bad, to
pervert, to debase or corrupt morally’
 ‘Corrupt’ means much more than ‘to lead
morally astray’ (Knuller v. DPP, 1973)
 Need to have regard to changing moral
standards in society
Obscenity and free speech
 ‘Obscenity’ is a much narrower concept
than ‘sexual explicitness’ (Darbo v. CPS,
1991)
 The ‘aversion’ defence (Niggaz With
Attitude case, 1991)
 Need to make a distinction between
‘literature’ and ‘pornography’
 Generally speaking, it is the effect of the
publication, rather than the intention of its
author, that is important to decide cases of
obscenity
Indecency/Outraging public
decency
 Indecency usually means something
that ‘offends against recognised
standards of propriety’ or ‘shocks,
disgusts or revolts ordinary people’
 Where an artist exhibited a sculpture
with foetal earrings in a public
gallery, he was held to be guilty of
outraging public decency (R. v.
Gibson, 1990)