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

Governments sometimes misuse the term “hate speech” to stifle criticism and to avoid being held accountable.

Whenever there is a law prohibiting or restricting expression, it’s important that it is really specific and clear. Otherwise governments can abuse laws, whether they are on hate speech, national security, blasphemy or anti-terrorism, to justify repressing legitimate dissent.

Dissent can never be defined as hate speech simply because it is critical of or protests government action. Such speech must always be protected.

Freedom of expression is a fundamental human right – crucial not only to how we exchange ideas – but to the very functioning of democracies. It is how we learn what our governments are doing, and how we exercise dissent and demand accountability.

Questioning and debate are essential for better policies, more inclusive societies, and economic and social progress.

The scope of the right to freedom of expression has to be broad to allow space for expression of multiple opinions and ideas, even if these can be deeply offensive to some people. Since hatred is rooted in fear and in ignorance, and peddled through disinformation, it can only be countered through solidarity for oppressed groups and expression of informed and accurate arguments.

Before rushing to advocate greater controls on expression, we should consider the unintended consequences of giving governments too much power to control what we can and cannot say.

Once broader censorship powers are created, they are difficult to roll back and can easily be abused. For example, a racist demagogue in power could turn these laws against advocates for equality and justice. It would then be easier for them to entrench their power by criminalising dissent and opposition, and commit other human rights violations.

Censorship often proves ineffective at addressing the root causes of hatred and counterproductive in promoting inclusion and equality. There is little evidence that censorship, in particular criminal prosecutions, changes hearts and minds while education, combined with multiple positive measures to break down social barriers can be effective. Rather, censorship may be used by hate-mongers to justify conspiracy theories when their movements are forced underground, while prosecutions may elevate racists from the fringe to greater prominence by turning them into martyrs for their “cause”.

What expression is not automatically hate speech?

Offensive expression

“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

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.

Defamation

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.

Blasphemy or “defamation of religions”

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.

Denial of historical events

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”.

Inciting terrorist acts and violent extremism

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”

Protection of “the state” and public officials

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.

Freedom of Expression

Question 1
How does the right to Free Expression benefit us all? Check all that apply.
A
When we can freely exchange ideas and information, our knowledge improves. As a result our communities and societies benefit too.
Hint:
Try again! Freedom of Expression is vital for a self-governing society.
B
It's only through encountering conflicting opinions that we can build our understanding of ourselves and each other.
Hint:
Try again! Freedom of Expression is vital for a self-governing society.
C
Too much freedom is dangerous. It's better to control or censor what the public sees or hears as people can't be trusted.
Hint:
Try again! Freedom of Expression is vital for a self-governing society.
D
Questioning and debate can lead to better policies and therefore more stable societies.
Hint:
Try again! Freedom of Expression is vital for a self-governing society.
E
All of the above
Hint:
Try again! Freedom of Expression is vital for a self-governing society.
Question 2
When is it appropriate to limit or restrict our right to Free Expression?
A
Any offensive or unpopular expression should be limited.
Hint:
Please try again. Our right to free expression is not absolute. It can be limited under exceptional circumstances. But rather than just restricting unpopular, offensive or discriminatory speech, we need to tackle its root causes.
B
When one's person expression denies another's person's right to be free from violence and discrimination.
Hint:
Please try again. Our right to free expression is not absolute. It can be limited under exceptional circumstances. But rather than just restricting unpopular, offensive or discriminatory speech, we need to tackle its root causes.
C
Expression that discriminates against people on the basis of who they are must be restricted.
Hint:
Please try again. Our right to free expression is not absolute. It can be limited under exceptional circumstances. But rather than just restricting unpopular, offensive or discriminatory speech, we need to tackle its root causes.
D
Freedom of Expression is a human right and it should never be limited under any circumstance.
Hint:
Please try again. Our right to free expression is not absolute. It can be limited under exceptional circumstances. But rather than just restricting unpopular, offensive or discriminatory speech, we need to tackle its root causes.
E
When people seeking political power use hate speech as a political tool to serve their own ends.
Hint:
Please try again. Our right to free expression is not absolute. It can be limited under exceptional circumstances. But rather than just restricting unpopular, offensive or discriminatory speech, we need to tackle its root causes.
F
All of the above
Hint:
Please try again. Our right to free expression is not absolute. It can be limited under exceptional circumstances. But rather than just restricting unpopular, offensive or discriminatory speech, we need to tackle its root causes.
Question 3
How does overly restricting Freedom of Expression harm us?
A
It prevents individuals and society from seeking and accessing knowledge and ultimately truth.
Hint:
You're partially right. What else?
B
Governments can keep vital information from the public in the name of national security.
Hint:
You're partially right. What else?
C
If we are not allowed to question our governments, we cannot challenge those in power or hold them accountable to their promises.
Hint:
You're partially right. What else?
D
Simply banning all offensive, unpopular or discriminatory speech doesn't allow us to address the root cause of bias, prejudice or discrimination.
Hint:
You're partially right. What else?
E
The problems we all face are complex. If we cannot freely exchange ideas and information, then we are all deprived of the potential solutions.
Hint:
You're partially right. What else?
F
All of the above
There are 3 questions to complete.
List
Return
Shaded items are complete.
123
Return

States Quiz

Question 1
How are hate speech laws misused by governments? Check all that apply.
A
Governments exploit vaguely worded sedition, blasphemy, national security or counter-terrorism laws to justify suppressing criticism and avoid being held accountable.
Hint:
You're partially right. What else?
B
Dissent is often mislabelled as hate speech and censored in the name of preserving stability.
Hint:
You're partially right. What else?
C
Governments place public morals or public decency above protecting marginalised people from discrimination and violence.
Hint:
You're partially right. What else?
D
All of the above
Question 2
Under international human rights law, what obligations do governments have with regard to hate speech?
A
To ensure equality and non-discrimination for all, governments must strengthen laws and policies that tackle discrimination and prejudice.
B
Governments must repeal laws that prevent people from holding them accountable such as 'sedition' laws.
C
Governments must end impunity for attacks on independent and critical voices.
D
Governments must place public morals over the rights of individual citizens.
E
States have an obligation to protect their citizens from violence and discrimination under international human rights law.
Question 2 Explanation: 
National security or public morals should never be conflated with protecting people from discrimination and violence.
Question 3
What positive policy measures can states take to counter hate speech?
A
Leaders and politicians need to actively speak out against hate speech and intolerance.
Hint:
You're partially right. What else?
B
Governments need to provide equality training for the police, the judiciary, the armed forces, medical professionals and other public officials.
Hint:
You're partially right. What else?
C
Governments need to ensure pluralism and equality in the media.
Hint:
You're partially right. What else?
D
States need to ensure that public education at all levels challenges prejudices, avoids stereotyping and dispels myths.
Hint:
You're partially right. What else?
E
All of the above.
There are 3 questions to complete.
List
Return
Shaded items are complete.
123
Return