In the context of States’ efforts to prevent terrorism, concepts such as “incitement to terrorism”, “violent extremism” and “radicalisation” are sometimes conflated with “hate speech”.
Terrorism, and state responses to it, can raise freedom of expression concerns. While individuals have been targeted in terrorist acts, with attackers seeking to intimidate people into self-censorship, States’ responses to terrorism have also led to unjustifiable or disproportionate restrictions on free expression.
Neither “terrorism” nor “terrorist acts” have a universally agreed definition under international human rights law.
Under international law, States are, however, obliged to prohibit incitement to terrorist acts. However, as with limitations on “hate speech”, restrictions to protect national security must comply with the three-part test set out in Article 19(3) of the ICCPR. (SEE RESTRICTIONS – add link to relevant section)
The Johannesburg Principles provide more clarification on when expression considered a threat to national security may be restricted: the State must demonstrate that:
- the expression is intended to incite imminent violence;
- it is likely to incite such violence; and
- there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.
The notable difference from “hate speech” is that there is no need to show that the terrorist violence is incited through advocacy of discriminatory hatred, or that violence is targeted against a particular group of people because of who they are. Terrorist violent is often, although not always, indiscriminate.
Problems arise for freedom of expression when states rely on “national security” justifications to restrict a much broader category of speech, including prohibitions on the “justification,” “encouragement” or “glorification” of terrorist acts, or associated “extremism” and “radicalisation.” These prohibitions require no proof of intent to incite violence, and do not insist on any causal connection between either the expression and the likelihood, or the expression and the occurrence, of violence.
Such broad prohibitions may be applied arbitrarily to limit legitimate political debate; to censor minority or dissenting opinions on terrorist attacks and the efficacy or appropriateness of states’ responses to them, or even commentary on broader issues in the public interest. This can have a counter-productive effect on efforts to tackle intolerance, in particular where minority or marginalised groups find that such laws are used to target their political expression.
At the same time, discussions on issues around terrorism and governments’ responses to it, are often closely connected to issues concerning identity. There is the potential for expression that incites terrorist acts or expresses support to terrorists, to also be discriminatory in nature. For example, in justifying a terrorist attack, supporters may express hatred towards victims or survivors on the basis of their religion or belief, their gender, or their national origin.
Governments’ responses to terrorist threats can also raise concerns around discrimination, and be counter-productive to the promotion of equality and tolerance. This includes policies that associate an entire group of people with terrorism, simply because of their religion or country of origin. Hateful rhetoric in support of such policies, whether discriminatory travel bans or discriminatory stop and search practices, may also amount to “hate speech”.
“Censorship is not an effective response to extremism, open and critical debate is an important part of any strategy to address systematic attacks on freedom of expression and their underlying causes, and that overbroad criminalisation of expression can drive grievances underground and foster violence.”
– UN and regional freedom of expression mandates’ joint declaration on “freedom of expression and responses to conflict situations”