What if your government treats criticism as “hate speech”?

“Hate speech”, by its very nature, offends the dignity of individuals on the basis of who they are, and will therefore be considered by many people to be “offensive”.

But any question about what is “offensive” is inherently subjective, i.e. the answer depends on an individual’s opinions, informed by their personal and unique experiences. “Offense” may be felt as a personal and emotional response to any situation, and is not a term that exclusively describes the impact “hate speech” has.  For example, someone may consider a piece of art to be “offensive” simply because they disagree with it, or perceive it as an unfair criticism of their values, beliefs, or conduct.

Therefore, any law that prohibits “offensive” expression has the potential for very broad application, including against expression that should be protected.

For these reasons, using “offensiveness” as a measure for determining what expression should be limited by a Government is dangerous. A government official may be “offended” by criticism of their policies, or an election candidate may be “offended” by accusations that they are racist or sexist. These people may use the law to target their critics, who could even be human rights defenders seeking to promote equality.

If we want laws to protect minority and marginalised groups from discrimination and violence, laws prohibiting “offensive” expression won’t work. We need laws that are defined in much narrower and precise terms to safeguard against abuse.

Satire includes the use of humour, irony, imitation, exaggeration, or ridicule, to expose and criticise the views or actions of others.

One could, for example, mimic a racist argument in a way designed to expose the absurdity of racism, and to criticise people with racist views. Satire may be deliberately offensive to provoke debate on a challenging issue and push people to examine their own prejudices.

Satire can have many different purposes. Understanding a speaker’s intent, as well as how an audience understand the speaker’s expression, is especially important. What might look like “hate speech” at first, you may realise is satire when you consider the context and understand its nuance, which could be unique to a particular political or cultural moment.

That does not mean that satire is never “hate speech” but rather we must always take more than just the content of the expression into account before making this judgment.

The concept of “defamation,” “desacato”, “slander” or “libel” is sometimes confused with “hate speech”.

Defamation laws generally aim to protect the reputation of individuals from false statements of fact, which cause damage to their reputation. Legal actions for defamation do not require an individual to show any “advocacy of hatred”, and should be distinguished from “hate speech”.

In addition, for the purposes of defamation legal actions, “groups” of individuals do not have an individual reputation, or the basis to claim legal personhood for the purpose of litigation.

International human rights law protects people, not ideas or belief systems. Under international law, the right to freedom of thought, conscience, religion or belief is attached to individuals, and does not protect religions, ideas or beliefs from criticism or scrutiny.

Therefore, the right to freedom of expression cannot be limited for the purpose of protecting religions or associated ideas or symbols from criticism, or to shield the feelings of believers from offence or criticism.

“Blasphemy”, or concepts like “defamation of religion” or “religious insult”, should not be considered “hate speech” automatically unless they meet the conditions for identifying ‘hate speech’ (see What Exactly Is Hate Speech?).  Such expression should also not be censored or prohibited unless it meets the high thresholds for prohibition (see Severity Threshold and our 6-part test).

Restrictions on blasphemy are often used to prevent and punish the expression of minority or controversial views, inhibiting open debate and exchange. This includes inter and intra religious dialogue, but also criticism of religious leaders and commentary on religious doctrine and tenets of faith.

Individuals in positions of power often enforce these restrictions for political advantage, to target critics and avoid accountability, using “blasphemy” broadly to target any dissent.

Restrictions on blasphemy are often used in order to silence the expression of religious minorities and atheists or non-theists.

Both the right to freedom of expression and the right to freedom of religion or belief rely on a respect for pluralism and non-discrimination.

Pluralism is essential as one person’s religious belief may be offensive to another’s and vice versa. By privileging one belief system over another, either in law or in effect, restrictions on blasphemy inevitably discriminate against those with minority religions or beliefs.

Various forms of “memory law” exist in many countries, prohibiting any expression that denies the occurrence of historical events, often connected to periods of severe persecution, genocide, or other violations of international criminal law.

Frequently, denialism is a direct attack on the dignity of victims and those associated with them; it often supports weak conspiracy theories of an atrocity being orchestrated or fabricated by its victims, and justifies or perpetuates further discrimination. Memory laws often have the stated purpose of preventing reoccurrence of atrocities, including by combating this legacy of discrimination.

However, under international human rights law, truth claims around historical events are not protected as such: importantly, international freedom of expression standards do not permit restrictions on the expression of opinions or ideas solely on the basis that those are “false” or “untrue”, even if these are deeply offensive.

Truth is more reliably established through robust debate and inquiry, examining the evidence in support of competing claims and judging them on their own merit.

Where particular truth claims are elevated to dogma and the State is tasked with enforcing them, the value of open and evidence-based argument is underestimated in favour of permanently fixing one interpretation from one point in time.

This ambiguity becomes more pronounced where laws prohibit not only the denial of historical events, but also any “trivialising”, “minimising”, “justifying” or “glorifying” of those events, terms that are without definition under international human rights law and open to further abuse.

However, when the denial of historical events is used as a vehicle for advocating hatred against victim-survivors and others associated with the victims of these crimes, it may amount to hate speech. This type of speech should only be prohibited when it reaches the threshold of advocacy of discriminatory hatred that constitutes incitement to violence, hostility or discrimination.

International human rights law protects individual’s human rights, not their opinions or beliefs about past events, or “truth claims”.

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:

1.    the expression is intended to incite imminent violence;
2.    it is likely to incite such violence; and
3.    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”

States regularly exploit the label “hate speech” to discredit, or even prohibit, expression that is critical of the State, the symbols of the State (such as flags and emblems), or power-holders.

While some domestic laws expressly prohibit “insult” or “denigration” of abstract concepts, other laws ambiguously prohibit “sedition” or expression that is against “national unity” or “national harmony”.

However, these entities cannot be the target of “hate speech”, because they are not people and are therefore not rights-holders.

In addition, heads of state or other public officials may be legitimately subject to criticism and political opposition, and they are expected to display a higher degree of tolerance toward criticism than other people.

Though freedom of expression can be limited to protect “national security” or “public order”, these bases cannot be exploited to suppress criticism or dissent, to shield those in power from embarrassment, or to conceal wrongdoing.

As the Johannesburg Principles state:

No one may be punished for criticizing or insulting the nation, the state or its symbols, the government, its agencies, or public officials, or a foreign nation, state or its symbols, government, agency or public official unless the criticism or insult was intended and likely to incite imminent violence.

Broad restrictions, prohibitions or censorship of speech and expression can often sweep up legitimate dissent and prevent us from holding those in power accountable to their duties and promises.