When can the right to free expression be restricted?

Examples

The leader of a prominent armed group, with territorial control over part of a country, frequently addresses the public through online videos. The armed group believes in their superiority on the basis of their religion, and expressly seeks to establish a theocracy. As the rule of law has diminished in the territory and public services have become non-functioning, the leader has sought to blame these problems on a religious minority group through a series of online video posts. The narrative implies the minority group is engaged in sabotage, and planning a violent revolt. As unrest in the territory increases, a new video calls on “the faithful” to act immediately to ensure a “pure” future for the fledging State. He calls for the streets “to be cleaned” with the blood of the religious minority, in particular the men, and tells followers that the destiny of minority women is to be enslaved for sexual exploitation, so that their offspring can be brought into the majority religion.

This scenario describes in quite clear terms an incitement to an act of Genocide, prohibited under the Genocide Convention and the Rome Statute (referred to as international criminal law). Beyond the requirements of Article 20(2) of the ICCPR, incitement to Genocide requires proof that there was specific intent for Genocide to occur as a result of the incitement. Intent is determinative in these cases, as it must be proven that the speaker intended their incitement to lead to the destruction, in whole or in part, of a racial, national, or religious group. The speaker’s leadership position and level of influence, as well as his narrative of religious purity, combined with the content of the most recent of his video clips, shows clear genocidal intent towards the religious minority in his territory.

Examples

In the run-up to a heavily contested presidential election, the incumbent president makes a series of speeches to large rallies. During these rallies, he promotes a rumour that supporters of the opposition, mostly belonging to another ethnic group, are arming themselves and pose a threat to his supporters. As tensions increase, he uses racialised language, reminiscent of calls used to incite mass-killings in the country a few decades earlier, calling on his supporters to take urgent action to secure an election victory, saying “the time has come”.

Here, the President has engaged in “hate speech” which arguably reaches the threshold of advocacy of hatred that constitutes incitement to violence. He understands and is exploiting ethnic tensions in society and is aware of the history of conflict between the ethnic groups in the past. He knows that as an influential politician, his use of these particular terms at an emotionally charges time would be understood by the audience as a direct call to violence. He knows the audience would likely act on his words to go and commit violence against, and even kill, members of the ethnic group associated with the opposition party. Whether or not violence actually ensues, criminal sanctions for this type of expression would be justifiable.

Examples

A refugee family boards a busy bus, occupying several seats. Another passenger, unable to sit, complains loudly, blaming refugees for draining public resources. She then verbally assaults the father using racist language to insult the family, who all fear for their safety during this attack.

In many countries, laws on public order prohibit behaviour that intentionally intimidates others, especially where it causes fear of assault. Often laws will recognise a more serious offence where the perpetrator is motivated by bias (e.g. racism). Sometimes, “hate speech” laws may also prohibit this type of intimidating behaviour.

While making offensive comments on public transport may not justify a criminal law intervention, when individuals are made to feel threatened and fear for their immediate safety, restrictions may be justified under Article 19(3) of the ICCPR. But any sanctions must be proportionate. Depending on the severity of the situation, a formal warning from the police, an order to pay compensation to the victims, or perform community service may be more appropriate than a prison sentence. There are also measures governments can take to prevent these harms, for example through campaigns against “hate speech” and intimidating behaviour on public transport.

It is important to distinguish this behaviour from advocacy of hatred that constitutes “incitement”, which must be restricted. While some cases of verbal threats and assault may be as severe as incitement, the relevant contextual factors to consider are different. In the case of the refugee family, the speaker’s level of influence over her audience (other passengers on the bus) is not of concern, nor is the likelihood that other passengers will engage in violence against refugees as a consequence of what she has said.

Examples

Following a bombing of a Sufi Mosque, a teenager in a city several hundred miles away updated his Facebook status to say the victims “deserved it” for choosing to be followers of the Sufi tradition. The teenager has several hundred “friends”, and the post prompts heated responses on both sides; the user is not a politician or a public leader.

In several countries overbroad “hate speech” or counter-terrorism legislation could be wrongly used to prosecute this teenager, even though the expression neither intends nor is likely to incite another terrorist attack. Though deeply offensive and “hate speech”, it is unlikely given its context to meet the threshold of “incitement”, where the Government would be required to impose restrictions. Though Facebook may decide to remove the comment under their terms and conditions, they should not be obliged by law to do so.