How can we challenge hate?

Any strategy to enable effective responses to ‘hate speech’ must also include the repeal or reform of laws that unduly limit the right to freedom of expression, in particular those that target or disproportionately affect minority or marginalised groups. States should repeal:

All forms of blasphemy laws;

• All laws that protect abstract notions of “nationhood” or national unity, including provisions that protect the State or its institutions or symbols from criticism or ridicule (such as “sedition”);
• All laws that criminalise defamation, including laws that specifically protect public officials and heads of state from insult or ridicule;
•  All laws that advance over-broad concepts of “public morals” or that protect so-called “traditional values” to discriminate on the grounds of sex, gender, gender identity, or sexual orientation;
• Laws that require authorisation to protest, or that ban spontaneous or counter- protests, since they inhibit individuals’ ability to effectively and collectively respond peacefully to violence and intolerance, including to incidents of ‘hate speech’;
• Laws that impose discriminatory, unnecessary or disproportionate barriers to the freedom of association, since such provisions, in particular those restricting access to resources, inhibit the ability of civil society organisations to actively monitor and respond to discrimination and violence;
• Broad counter-terrorism or “extremism” laws, to ensure any restrictions on freedom of expression are narrowly tailored to protect genuine national security interests, and to guard against discrimination against or profiling of minority groups.

States must also make concerted efforts to end impunity for attacks on independent and critical voices. In many societies, speaking out and organising against intolerance and discriminatory violence can raise significant security concerns for individuals and their colleagues and families. Threats and other forms of violence against individuals exercising their rights to freedom of expression, and impunity for such crimes, is a pressing concern with dangerous consequences for a whole society.

States must ensure that any attacks against individuals exercising their rights to freedom of expression are unequivocally condemned, and public officials avoid statements that may encourage or indicate support for such attacks.

In particular, States should:

• Put special measures in place to protect individuals who are likely to be targeted for what they say;
•  Ensure that crimes against freedom of expression are subject to independent, speedy and effective investigations and prosecutions;
•  Ensure that victims of crimes against freedom of expression have access to appropriate remedies.

States must also ensure transparency in the conduct of public affairs and guarantee the right of all people to access to information. Cultures of official secrecy, in which the right of access to information is denied, enable powerful individuals to scapegoat minorities or marginalised groups to deflect attention from their own wrongdoing or political failings. In contrast, a culture of openness and the free flow of information makes such attempts to manipulate group identities less politically effective; it also allows for publically available information that can be used to counter such attempts at division. Transparency and accountability can also build faith and trust in public institutions among all sectors of society, and therefore make individuals and groups less susceptible to calls for ‘vigilante’ forms of violence.

States must also ensure that the right to freedom of expression is fully protected in relation to digital technologies. Digital technologies are a crucial medium for all, but in particular they allow minority and marginalised groups to engage and build communities, seek support and speak out about concerning issues, including against intolerance and ‘hate speech’.

However, due to the volume of content, some of which is unlawful or harmful, transmitted through the Internet, there is increasing pressure on States and private companies to increase control over online content. This includes calls to prohibit or facilitate the undermining of anonymity for Internet users, and proposals for intermediaries to more proactively monitor and remove content and/or making intermediaries liable for failing to do so. These measures could threaten the nature of the Internet as an open forum for exchange of opinions and ideas, and limit creative space for exposing, contesting, and countering ‘hate speech’.

In this regard, ARTICLE 19 recommends that States:

• Protect the right to anonymity online as an essential component of the right to freedom of expression, and encourage private businesses to ensure anonymity as a real option to users of their services;
•  Ensure that intermediaries are not made liable for content created by third parties, and that content is only required to be restricted on the order of a judicial authority; and
• Provide Internet-users with effective remedies against private parties where they have unduly interfered with users’ human rights.

Repeal all laws and policies that formally or informally institutionalise discrimination and exclusion on any of the protected grounds recognised under international human rights law. Their mere existence creates environments in which discrimination is ignored or even tacitly encouraged.

Enact or strengthen anti-discrimination legislation and in particular ensure that such laws at minimum:

• Protect against direct discrimination, i.e. the unfavourable treatment of a person, when compared to how others would be treated in a comparable situation, due to a protected characteristic;
• Protect against indirect discrimination, i.e. where a neutral rule, criterion, or practice affects a group defined by a protected characteristic in a significantly more negative way than it would others, by comparison, in a similar situation;
• Enable temporary special measures to be undertaken to tackle indirect discrimination and ensure substantive equality, for as long as such measures are necessary and proportionate;
• Include the broadest scope of protected characteristics recognised under international human rights law as potential grounds for discriminatory hatred and action;
• Apply to a broad range of specific contexts, including: employment; social security and access to welfare benefits; education; the provisions of goods and services; housing; access to justice; private and family life, including marriage; political participation, including freedom of expression, association and assembly; and law enforcement;
• Include defences for cases in which differential treatment is based objectively upon a legitimate aim, and the means of achieving that aim are appropriate and necessary;
• Provide for a range of remedies primarily in civil and administrative law, as well as non-legal mechanisms for redress such as mediation and alternative dispute resolution, which may be provided through equality institutions.

States must ensure that their criminal law frameworks fully recognise, and provide proportionate sanctions, for bias-motivated crimes, and include in these laws the broadest range of protected characteristics. The effective implementation of these laws should be monitored to ensure that victims are encouraged to report such crimes and to ensure the collection of official statistics on the number of reported incidents and successful prosecutions, disaggregated according to the type of bias at issue.

States should establish or strengthen the role of independent equality institutions, or expand the mandate of national human rights institutions (NHRIs) to promote and protect the right to equality and non-discrimination, including with respect to the right to freedom of expression.

Such institutions should be properly resourced with mandates, as appropriate, to:

• Develop data collection mechanisms on the extent and impact of discrimination in priority areas to inform the development, monitoring and evaluation of laws and policies, and to promote empirical and other research on the subject;  
•  Assist legislatures and the government with the development of laws and policies that comply with States’ international human rights obligations, including in relation to freedom of expression and non-discrimination, encouraging the full and effective participation of civil society in these processes;
• Receive complaints regarding discrimination, and where appropriate provide alternative/voluntary dispute resolution mechanisms;
• Complement and provide information to governmental early warning mechanisms or focal-points that monitor tensions within or between different communities; and
• Encourage and, where appropriate, support different mechanisms for inter-communal interaction and dialogue.

It is important that NHRIs, or equality bodies, do not operate in isolation: they should be empowered to build partnerships across public sector agencies, and where appropriate with private actors and civil society, to tackle the root causes of discrimination. In this regard, they should play an integral role in developing and implementing national action plans to tackle the root causes of discrimination, informed by the measures outlined in this toolkit as well as in Human Rights Council resolution 16/18, and the Rabat Plan of Action. See our explainer guide for more information on these.

Public officials, including politicians, have a key role to play in recognising and promptly speaking out against intolerance and discrimination, including instances of “hate speech.” This requires recognising and rejecting the expression itself, as well as the prejudice of which it is symptomatic, expressing sympathy and support to the targeted individuals or groups, and framing such incidents as harmful to the whole of society. These interventions are particularly important where inter-communal tensions are high, or are susceptible to being escalated, and where political stakes are also high, e.g. in the run-up to elections.

Early and effective intervention from public officials can play an important preventative role to guard against tensions escalating, deterring others from engaging in similar conduct. They can also play an important role in opening space for counter-speech by other actors, in particular those targeted by “hate speech,” as well as sympathetic allies, including the “silent majority” for whom proponents of ‘hate speech’ often claim to speak. Public officials can thus play a key role in instigating or encouraging broader dialogue which might counter intolerance and discrimination.

Further research is required to examine the circumstances in which counter-speech by public officials to instances of intolerance and discrimination is most effective. Condemnations of ‘hate speech’ may be insufficient if public officials fail to substantively and persuasively engage with the underlying anxieties and misperceptions that render parts of the public susceptible to such messages. Responses by public officials should therefore be nuanced, and go beyond denunciation to provide persuasive counter-narratives based on facts that appeal to and, where necessary, challenge public concerns and anxieties. However, public officials should avoid responding to incidents of ‘hate speech’ where to do so would give undue attention to the positions of fringe individuals or groups that are not influential to public discourse.

Importantly, public officials should be instructed on the importance of avoiding statements that might promote discrimination or undermine equality, and must understand the dangers of trivialising violence or discrimination, including in the form of ‘hate speech’, as well as silence in response to such challenges equating to tacit endorsement. In this regard, public bodies should have clear rules governing the conduct of individuals speaking in their capacity as public officials. Ethical codes and “no discrimination” policies adopted by political parties should also be considered as positive policy measures.

Building trust in the capacity of public institutions to tackle intolerance and discrimination requires public officials to be fully aware of the nature and impact of discrimination on different individuals and groups, and to be fully committed to promoting equality.

States should provide trainings for public officials, public figures and state institutions on the rights to equality and non-discrimination, particularly where discrimination is institutionalised, or has historically gone unchallenged. Priority contexts should include schools and other educational settings, the armed forces, the police, the judiciary, the medical profession, legal services, political associations or religious institutions.

Equality training may form part of a broad range of measures designed to tackle institutionalised discrimination, and should be clearly communicated to the public to demonstrate where efforts are underway to build trust in institutions.

All States should ensure that a public framework and regulatory framework for diverse and pluralistic media is in place, which promotes pluralism and equality, in accordance with the following:

• The framework should respect the fundamental principle that any regulation of the media should only be undertaken by bodies which are independent of the government, are publicly accountable, which operate transparently; and
• The framework should promote the right of different communities to freely access media, information and communications technologies for the production and circulation of their own content, as well as for the reception of content produced by others, regardless of frontiers.

This framework should be implemented, among others, through the following measures:

• Promoting universal and affordable access to the means of communication and reception of media services, including telephones, the Internet and electricity;
•  Eliminating discrimination in relation to the right to establish newspapers, radio and television outlets, and other communications systems;
• Allocating sufficient ‘space’ to broadcasting uses on different communications platforms to ensure that, as a whole, the public is able to receive a range of diverse broadcasting services;
• Making an equitable allocation of resources, including broadcasting frequencies, among public service, commercial and community media, so that together they represent the full range of cultures, communities and opinions in society.
• Requiring the governing bodies of media regulators broadly to reflect society as a whole;
• Putting in place effective measures to prevent undue concentration of media ownership;
• Providing public support, whether financial or in other forms, through an independent and transparent process based on objective criteria, to promote the provision of reliable, pluralist and timely information for all, and the production of content which contributes to diversity or promotes dialogue among different communities.
• Repealing any restrictions on the use of minority languages that have the effect of discouraging or preventing media specifically addressed to different communities;
• Making diversity, including in terms of media targeting different communities, one of the criteria for assessing broadcasting license applications; and
• Ensuring that disadvantaged and excluded groups have equitable access to media resources including training opportunities.

Public service values in the media should be protected and enhanced by transforming State- or government-controlled media systems, by strengthening existing public service broadcasting networks, and by ensuring adequate funding for public service media, so as to ensure pluralism, freedom of expression, and equality in an ever-changing media landscape.

Public information and education campaigns are essential in combating negative stereotypes of, and discrimination against individuals on the basis of their protected characteristics. Such campaigns, based on accurate information, can dispel popular myths and misconceptions, and equip individuals with greater confidence to identify and challenge manifestations of intolerance in their day-to-day interactions.

In particular, public information and education campaigns should be integrated into primary, secondary and tertiary education, complemented by concrete anti-bullying policies, including the provision of support services for victims of bullying, including peer-led initiatives. In particular, attention should be paid to ensuring diversity in school materials and the avoidance of school textbooks containing stereotypes and prejudices against particular groups.

In the aftermath of large scale human rights violations, including widespread and systematic discrimination, mechanisms for guaranteeing truth, justice, reconciliation and reparations have proven to be a positive extra-judicial means for establishing an authoritative and shared interpretation of the “truth” behind historical events, providing a basis for reconciliation in fractured societies.

By contrast, where open and inclusive discussions and critical debate on historical events are suppressed in favour of unilaterally declared or legally enforced “truths”, underlying resentment and distrust between different communities can endure and pose a danger of conflicts reoccurring.

States can play an important role in officially and publicly recognising the impact and legacy of incidents, or systemic problems of discrimination or violence, as well as symbolically marking certain events or times to overcome and ensure redress for respective incidents. This is often done by dedicating public sites, such as monuments, museums and in community meeting areas, and broader efforts to help people come to terms with and comprehend what has happened.

Civil society plays a critical role in advancing the protection and promotion of human rights – even where this may not be a central part of their mandate. Their activities can be central in responding to ‘hate speech’ as they can provide the space for formal and informal interactions between people of similar or diverse backgrounds, and platforms on which individuals can exercise freedom expression and tackle inequality and discrimination. At the local, national, regional and international levels, civil society initiatives are among the most innovative and effective for monitoring and responding to incidents of intolerance and violence, as well as for countering “hate speech.”

Civil society initiatives are often designed and implemented by the individuals and communities most affected by discrimination and violence, and provide unique possibilities for communicating positive messages to and educating the public, as well as monitoring the nature and impact of discrimination. Ensuring a safe and enabling environment for civil society to operate is therefore also crucial.

Enhancing public understanding of discrimination and its impact requires the fostering of dialogue and engagement between government, civil society, and society at large. Key actors should attempt to forge alliances to collaborate on tackling manifestations of intolerance and prejudice in society – in particular seeking the support of non-government organisations, police, policymakers, equality bodies, artists, religious institutions, and international organisations to collaborate on tackling manifestations of intolerance and prejudice in society.

Any policy measures to tackle ‘hate speech’ which are directed at the media should respect the fundamental principle that any form of media regulation should be undertaken by bodies independent of political influence, which are publicly accountable and operate transparently. Editorial independence and media plurality should not be compromised, as both are essential to the functioning of a democratic society.

In respect of broadcast media, any regulatory framework should promote the rights of minority and marginalised groups to freely access media, information and communications technologies for the production and circulation of their own content and for the reception of content produced by others, regardless of frontiers.

All forms of mass media should recognise that they have a moral and social responsibility to promote equality and non-discrimination for individuals with the broadest possible range of protected characteristics. In respect of their own constitutions, mass media entities should take steps to:      Ensure that their workforces are diverse and representative of society as a whole;

•  Address as far as possible issues of concern to all groups in society;
• Seek a multiplicity of sources and voices within different communities, rather than representing communities as homogenous entities;
• Adhere to high standards of information provision that meet recognised professional and ethical standards;
• Promulgate and effectively implement professional codes of conduct for the media and journalists that reflect equality principles.

To proactively combat discrimination, media entities should consider:

• Taking care to report in context, and in a factual and sensitive manner;
• Ensuring that acts of discrimination are brought to the attention of the public;
• Being alert to the danger of discrimination or negative stereotypes of individuals and groups being furthered by the media;
• Avoiding unnecessary references to race, religion, gender, sexual orientation, gender identity and other group characteristics that may promote intolerance;
• Raising awareness of the harm caused by discrimination and negative stereotyping;
• Reporting on different groups or communities and giving their members an opportunity to speak and to be heard in a way that promotes a better understanding of them, while at the same time reflecting the perspectives of those groups or communities;
• Professional development programmes that raise awareness about the role the media can play in promoting equality and the need to avoid negative stereotypes.

Public service broadcasters should be under an obligation to avoid negative stereotypes of individuals and groups, and their mandate should require them to promote inter-group understanding and to foster a better understanding of different communities and the issues they face.

In terms of the remedies available through self-regulatory systems, a right to correction or reply should be guaranteed to protect the rights to freedom of expression and equality. This should enable individuals to demand that a mass media outlet publish or broadcast a correction in cases where that media outlet has published or broadcast incorrect information.

Increasingly, attention is being paid to the role of Internet intermediaries in identifying and responding to “hate speech.”

Internet intermediaries, including web hosting companies, Internet service providers (ISPs), search engines and social media platforms, play a crucial role in enabling people to access information via the Internet. For the most part, these are privately owned companies operating across jurisdictions. Though they do not primarily engage in the creation or modification of content, but rather facilitate the communication of users, they are increasingly being used in the moderation of content. In some cases, this involves the direct intervention of State regulation, or the adoption of civil liability regimes under which intermediaries must monitor and remove allegedly unlawful content. These factors influence how intermediaries engage in content moderation.

Intermediaries are also undertaking voluntary initiatives to set conditions for the use of their services, reserving for themselves in certain circumstances the role of moderator. These “terms and conditions,” sometimes framed to sound less contractual as “community standards” or “guidelines,” vary in the types of expression that they limit, though many include prohibitions on ‘hate speech’ or variations thereon. Approaches to moderation vary significantly, as do degrees of transparency around moderation processes and the availability of internal mechanisms for appealing a moderation decision.

Numerous factors seem to be incentivising a greater tendency towards removal of ‘hate speech’ content by intermediaries, including:

• Pressure to make intermediaries’ policies conform to the national laws of the several jurisdictions in which they wish to maintain or expand their operations, many of which do not comply with international freedom of expression standards, and often leading to the application of fragmented standards or a lowest common denominator standard;
• Pressure to cooperate with States and sometimes the public over ‘hate speech’ concerns, showing enthusiasm for content moderation through self-regulation to avoid the imposition of coercive and more costly forms of regulation; and
• Responses to commercial pressures from advertisers or other revenue sources who do not wish to be associated with alleged “hate speech.”

There are a number of concerns regarding the role of intermediaries in moderating content, including “hate speech,” in particular:

• Inadequate protections for freedom of expression: the terms and conditions of many intermediaries tend towards limiting a greater breadth of expression than States are permitted to restrict under international human rights law. The scope of so-called “private censorship” is considerable, and raises questions in respect of moral and social responsibilities to promote and protect all human rights. Initiatives to encourage intermediaries to take these responsibilities seriously often overlook concerns over the right to freedom of expression. Furthermore, there are serious doubts over the suitability of businesses, primarily motivated by profit, to objectively judge competing rights and interests;
• A lack of transparency and accountability in the decision-making process of intermediaries when removing content, including how content is flagged and removed (e.g. if content moderation is automated, and if not what training and support exists for moderators). Many intermediaries do not publish information on removals made on their own initiative, as opposed to removals in response to requests from States or other businesses. This creates serious barriers to any analysis or evaluation of intermediaries’ conduct in relation to “private censorship;”
• A lack of procedural safeguards, and a lack of access to an effective remedy in the removal of content, or the imposition of other sanctions by intermediaries. There are concerns that States may take advantage of reporting mechanisms or their influence over private companies to request content removals that they cannot legally compel themselves, or to circumvent procedural safeguards that limit any powers of compulsion they have in this respect. The delegation of the policing of content from the State to intermediaries denies users any opportunity to contest or defend against the sanctions employed against them.

Though there have been numerous innovations in recent years to empower users to report ‘hate speech’ content for removal, either because it is perceived to be unlawful or against an intermediary’s terms of service, there have not been comparable advances to empower users to guard against the unfair or unjustified removal of content. Indeed, most intermediaries do not seem to provide users with notice or reasons for the content removal. Beyond the removal, other sanctions imposed by intermediaries, such as the suspension or blocking of accounts, are rarely accompanied with notice or opportunities for appeal or remedy.

• Disproportionate impact of removals on users with minority or dissenting views: since many intermediaries’ moderation models rely upon user reports, minority or dissenting views may attract a greater number of reports and therefore be more vulnerable to removal. The same Internet-users who find themselves on the receiving end of ‘hate speech’ may therefore also find themselves deliberately targeted through reporting tools and disproportionately impacted by content removal and sanctions against their accounts. This reflects an unfortunate reality that many Internet users that report content are unable, or are perhaps disinterested, to distinguish unlawful or harmful content, from content they simply want removed on the basis of their own prejudices.

ARTICLE 19 encourages intermediaries to take seriously their social and moral responsibility to promote and protect human rights, in accordance with the Ruggie Principles.

In this regard, and as a matter of voluntary self-regulation, we encourage intermediaries to:

• Include, in their terms and conditions, a strongly-stated commitment to the promotion and protection of human rights, including the rights to freedom of expression and the right to equality and non-discrimination;
• Ensure users a right to anonymity as default, not requiring the use of “real names” or the submission of identity documents to open or maintain a social media account;
•  Ensure that any content-based restrictions are specified in the terms and conditions, in a clear and accessible format so that users are able to understand the types of content that may be subject to restriction;
•  Ensure that any process for applying sanctions to users, including content removal or account suspensions, are clearly detailed within terms and conditions;
• Explore mechanisms for empowering users to respond to and contest “hate speech,” rather than the primary response being removal by the intermediary, this could include increasing awareness among users of the importance of the rights to freedom of expression, and to equality and non-discrimination;
• Require that users given sufficient information when submitting a complaint against specific content, including: (i) the content at issue; (ii) the reasons for seeking content removal; (iii) contain details of the complainant; and, (iv) a declaration of good faith;
• Ensure that in relation to “hate speech,” terms and conditions impose a high threshold for restrictions, which reflects as far as possible the standards set out in Part 3 of this toolkit;
• Ensure proportionality in the implementation of any sanctions against users who violate terms and conditions, taking into consideration the harm of the alleged infringement, and the user’s previous conduct on the platform. Suspension from platforms should be a measure of last resort;
• Ensure users are given sufficiently-detailed prior-notice of complaints made against their content, with the opportunity to appeal or contest the complaint prior to the imposition of sanctions. In the absence of prior-notice, intermediaries should, at a minimum, give post-facto notice of content removal, including reasons for the content removal and availability internal mechanisms to appeal that decision.

A lack of meaningful inter-group communication, and the isolation and insularity of which this is a symptom, is often identified as a significant contributing factor to inter-group tensions, where ‘hate speech’ is more prevalent, and incitement to violence, hostility or discrimination more likely.

Sustained and effective dialogue between distinct groups, in particular between communities of different religions or beliefs, can serve an effective preventative measure, by achieving the alleviation of tensions or suspicion between groups. This may be particularly effective in contexts where there is a history of inter-group tensions escalating into incitement of, or actual, incidents of violence and discrimination. However, in order to be effective, dialogue must provide the spaces for a genuine, rather than symbolic, exchange of views, and enable the discussion of differences and disagreements. Dialogue must also be inclusive, allowing for community representation beyond “traditional” leaders.

Furthermore, informal exchanges between communities, detached from intergroup dialogue, for example in the context of sport or cultural exchanges, or designed to address practical issues of common concern, can also prove to be important trust- and relationship-building exercises. The impact of inter-group dialogue and communication initiatives can be enhanced where they receive public support from government.

Outside of the context of formal or informal “dialogues”, representative of different communities, in particular religious leaders and other community leaders, should be empowered to speak out in response to intolerance and discrimination. This is particularly important where proponents of intolerance and discrimination portray themselves as representative of, or acting on behalf of, specific communities or interest groups. Religious and community leaders are well placed not only to refute these claims of representation, but also to substantively engage with and challenge an individual’s position, and thus offer a persuasive counter-narrative.