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States should sanction the use of hate speech, while safeguarding freedom of expression, says Council of Europe anti-racism commission

March 23rd 2016

ECRI General Policy Recommendations No 15 on combating hate speech

On the occasion of the International Day for the Elimination of Racial Discrimination, the European Commission against Racism and Intolerance (ECRI) issued guidelines to all 47 member States of the Council of Europe on how to prevent hate speech, support those targeted by it, and deal with its consequences.

Encouraging speedy reactions by public figures to hate speech, promoting self-regulation of media, raising awareness of the dangerous consequences of hate speech, withdrawing financial and other support from political parties that actively use hate speech and criminalising its most extreme manifestations, while respecting freedom of expression, are among the general policy recommendations issued by the Council of Europe’s anti-racism commission.

Hate speech is based on the unjustified assumption that a person or a group of persons are superior to others; it incites acts of violence or discrimination, thus undermining respect for minority groups and damaging social cohesion. This is why governments must resolutely and urgently react to hate speech, ECRI says.

In many instances, the most appropriate and effective approach to tackling hate speech can be self-regulation by public and private institutions, media and the Internet industry, such as the adoption of codes of conduct accompanied by sanctions for non-compliance. When necessary, the deletion of hate speech from web materials, disclosing the identity of hate speech users, and the obligation of media to publish acknowledgments that something they ran constitutes hate speech should be required.

Withdrawing all financial and other state support from political parties or other groups using hate speech, and eventually prohibiting or dissolving such groups is another recommendation of the Council of Europe anti-racism body. In the most serious cases, criminal prohibitions and penalties are necessary, but they should be used as a measure of last resort. All along, a balance must be kept between fighting hate speech on the one hand, and safeguarding freedom of speech on the other.

For further information, see the press release on the ECRI website

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Equality Bodies

The work of equality bodies on hate speech is very important according to the recommendations, as can be seen in the following points:

ECRI recommends that the governments of Member States:

3.e: support the monitoring of hate speech by civil society, equality bodies and national human rights institutions and promote cooperation in undertaking this task between them and public authorities
4.f: support non-governmental organisations, equality bodies and national human rights institutions working to combat hate speech
8.e: provide standing for those targeted by hate speech, equality bodies, national human rights institutions and interested non-governmental organisations to bring proceedings that seek to delete hate speech, to require an acknowledgement that it was published or to enjoin its dissemination and to compel the disclosure of the identity of those using it.

E. Causes and Extent - Requirements for data gathering

84. There will, however, be a need to ensure that appropriate support is provided for such monitoring, which can require the financing for either the human analysts required or the hardware and software necessary to undertake automated techniques of analysis. Equality bodies/national human rights institutions and other competent bodies should also be able to undertake or commission surveys of those who may be targeted by hate speech in order to establish its frequency especially in circumstances where such occurrence may not be readily monitored or reported. Good examples are the general European Survey on Crime and Safety and also the survey undertaken by the European Union Agency for Fundamental Rights specifically with respect to lesbian, gay, bisexual and transgender persons. Such surveys can also be used to establish the consequences of this use for persons in these groups, particularly as regards the possibility of them feeling fear, isolation and shame, withdrawing from society and being reluctant to complain or being deterred from doing so.

F. Raising Awareness and Counter-speech - The importance of counter-speech

98. Finally, these efforts should be linked with specific, prompt and unqualified condemnations of the actual use of hate speech. The clear condemnation of the use of hate speech is necessary not simply because its use is entirely unacceptable in a democratic society but also because this serves to reinforce the values on which such a society is based. Such counter-speech should thus not just say that the use of hate speech is wrong but underline why it is anti-democratic. It is important that no one stands by and allows hate speech of any kind to be used without challenging it. Such challenges are especially practicable in online media which provide various means of reacting to what is disseminated. All users of the media in any form should thus be encouraged to draw attention to instances in which hate speech is being used and to make clear their objection to such instances. However, while challenging the use of hate speech is the responsibility of everyone, public figures can make an especially important contribution in this regard because the esteem in which they are held gives their voice a considerable influence over others. It is, therefore, crucial that all public figures, notably politicians and religious and community leaders but also personalities in the arts, business and sport speak out when they hear or see hate speech being used as otherwise their silence can contribute to legitimising its use. In the monitoring cycles it has been noted that equality bodies, ombudspersons and national human rights institutions have often been particularly vocal in condemning the use of hate speech. This is undoubtedly valuable but such condemnation needs to be mainstreamed so that it is a much more general response by public figures rather than just a few lone voices. Such counterspeech might also take the form of withdrawing from activities and organisations in which persons using hate speech are actively involved.

G. Support for those targeted - Removing obstacles to redress

111. Concerns about the complexity and expense of making complaints – particularly those involving legal proceedings - in respect of the use of hate speech can best be addressed by making the requirements for them as straightforward and user-friendly as possible and ensuring that appropriate assistance is available for submitting and pursuing them. Such assistance can take the form of support for organisations – whether non-governmental ones or equality bodies and national human rights institutions - to provide advice and representation in relevant proceedings and/or the extension of legal aid schemes to the making of complaints, especially where legal proceedings are involved. It would not be appropriate for public authorities or private organisations to charge a fee for their handling of complaints made to them about the use of hate speech. Furthermore, any fee payable for legal proceedings brought in respect of such use should not be set at a level that makes bringing them impracticable. Moreover, all those tasked with receiving complaints, whether in public authorities or in private organisations, should have appropriate training to ensure that the manner in which those complaints are received is not in itself off-putting to those who are complaining.

J. Administrative and civil liability

Recommendation 8

146. In order to ensure that appropriate action is taken against these more serious instances of the use of hate speech, it is also recommended that the standing to bring the relevant proceedings be extended not only to those targeted by the use of the hate speech concerned but also to equality bodies, national human rights institutions and interested non-governmental organisationsx. In addition, the effective use of these powers is recognised to entail the training of the judges, lawyers and officials involved, as well as the exchange of good practices between those involved in the exercise of such powers.

Standing to sue

154. The ability to seek the use of these powers should certainly be vested in those who are targeted by the use of hate speech concerned. Indeed, there are already possibilities in some member States for someone whose personality has been violated by the use of hate speech to seek the discontinuation of this unlawful interference with it and/or the removal of its effects. Furthermore, given that judicial proceedings will be an intrinsic part of the process, it is essential that legal aid be made available to enable such persons to take part in them. However, recommendation 8 also envisages a role for equality bodies, national human rights institutions and interested non-governmental organisations in seeking the exercise of the powers to require deletion, blocking of sites and publication of acknowledgements, as well as those to enjoin dissemination and to compel disclosure. This reflects the recognition that these entities can all play a role in monitoring the use of hate speech. As a result, these entities may be especially well-placed to substantiate the need for the exercise of these powers and to initiate the process leading to this occurring. Making specific provision for them to act in this way is likely to ensure that these powers will not merely be theoretical remedies for the use of hate speech but will be
ones that are practical and effective.

Further information

Since 2013, ECRI, in its country monitoring work, has specifically focused on the use of hate speech against vulnerable groups.