Talaði í dag af hálfu Feneyjanefndar um tjáningarfrelsi og hatursorðræðu á alþjóðlegri ráðstefnu um vernd mannréttinda í tilefni af því að 15 ár eru frá því að embætti umboðsmanns var stofnað í Armeníu – í þjóðþinginu í höfuðborg landsins, Yerevan.
Spoke on behalf of the Venice Commission on freedom of expression and hate speech (“The dilemma of drawing a line between hate speech and robust political debate”) – High Level International Conference – 15th Anniversary of the Human Rights Defender of Armenia – taking place in the National Assembly.
Freedom of Expression and Prohibition of Hate Speech
“The dilemma of drawing the line between hate speech and robust political debate”
The 15th Anniversary of the Human Rights Defenders
Yerevan 26 November 2019
Herdís Kjerulf Thorgeirsdóttir
First Vice President Venice Commission
Your excellencies, dear participants, ladies and gentlemen,
It is an honour for me to be here in Yerevan to celebrate the 15th anniversary of the human rights defenders – especially as the Venice Commission in March this year adopted the “Principles on the Protection and Promotion of the Ombudsman Institution,”[1] which although not legally binding help set legal standards across the continent and beyond. The Venice Principles have already been endorsed by the Committee of Ministers. All that remains now is for them to be fully embraced and properly implemented by national authorities as the Ombudsman plays an important role in strengthening democracy, the rule of law, good administration and the protection and promotion of human rights.
For 70 years the Council of Europe, a pan-European organisation has been defending democracy, human rights and the rule of law in its 47 Member States and beyond.
The Venice Commission, the advisory body on constitutional matters to the Council of Europe, enjoys the specific mandate to defend democracy through the rule of law. Next year we will celebrate the 30th birthday of this unique mechanism with a global outreach – as the Venice Commission has 61 Member States: the 47 Council of Europe Member States, plus 14 other countries.[2]
The Venice Commission has adopted several opinions concerning legislation on freedom of expression in various Member States. In 2016 the Commission commented on the proposed changes to the constitution of Azerbaijan, which concerned inter alia freedom of expression and hate speech; where the Venice Commission warned against an open-ended definition of the concept which might justify far-reaching restrictions on freedom of expression, guaranteed by Article 10 of the European Convention on Human Rights stating that not every statement which may arguably “provoke hostility or animosity” would amount to hate speech.
A robust, open political debate enjoys the highest protection in ECHR jurisprudence where “it is[…] incumbent on the press to impart information and ideas on political issues, including divisive ones.” Not only does it have the task of imparting such information and ideas: the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog”.
Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society“.
When dealing with cases concerning incitement to hatred and freedom of expression, the European Court of Human Rights uses two approaches which are provided for by the European Convention on Human Rights:
– the approach of exclusion from the protection of the Convention, provided for by Article 17 (prohibition of abuse of rights), where the comments in question amount to hate speech and negate the fundamental values of the Convention; and
– the approach of setting restrictions on protection, provided for by Article 10, paragraph 2, of the Convention (this approach is adopted where the speech in question, although it is hate speech, is not apt to destroy the fundamental values of the Convention).
Internet news portals which, for commercial and professional purposes, provide a platform for user-generated comments assume the “duties and responsibilities” associated with freedom of expression in accordance with Article 10 § 2 of the Convention where users disseminate hate speech or comments amounting to direct incitement to violence.
The ECtHR uses the term “hate speech” throughout its case-law. Yet there no precise meaning of this concept and no specific test/criteria for it, which is problematic. Instead, a case-by-case approach is applied
An example of hate speech not warranting the protection of Art. 10 of the ECHR was the case of Pavel Ivanov v. Russia – the owner and editor of a newspaper who was convicted of public incitement to ethnic, racial and religious hatred through the use of mass-media. He published a series of articles portraying Jews as the source of evil in Russia and calling for their exclusion from social life. He accused an entire ethnic group of plotting a conspiracy against the Russian people and ascribed Fascist ideology to the Jewish leadership. Both in his publications, and in his oral submissions at the trial, he consistently denied the Jews the right to national dignity, claiming that they did not form a nation. The applicant complained, in particular, that his conviction by domestic courts for incitement to racial hatred had not been justified.
The European Court of Human Rights declared his application inadmissible (incompatible ratione materiae). The Court found such a general, vehement attack on one ethnic group directed against the Convention’s underlying values, notably tolerance, social peace and non-discrimination. Consequently, by reason of Article 17 (prohibition of abuse of rights) of the Convention, the applicant could not benefit from the protection afforded by Article 10 (freedom of expression) of the Convention.
Tensions and contradictions emerge whenever there is an attempt to draw a line between on the one hand speech that is a genuine contribution to the political debate, although it may be offensive and shocking, the restriction will still be analysed on the bases of Article 10 (three part test) and on the other hand speech that threatens democracy’s foundations – real hate speech, which amounts to an abuse of rights – and falls under Article 17 of the European Convention on Human Rights – the so-called “guillotine provision” as it is not dealt with as a restriction of expression”. The Court has refused to consider cases under the scrutiny of Article 10 and applied the “guillotine provision” involving criminal conviction of anti-Muslim speech,[3] holocaust denial,[4] and incitement to racial hatred[5] to name examples.
The Court has however found media exposure of racism not to be hate speech[6] and dealt with the matter under Article 10 of the European Convention of Human Rights; or cases of homophobia – “serious and prejudicial statements” while even though not calling for direct violence – the domestic courts conviction was not considered going against Article 10 of the ECHR but regarded as necessary in a democratic society for the rights of others.[7]
The ECtHR has found internet news portals liable for online “hate speech” . In MTE and Index v. Hungary (2016) the applicants, self-regulatory body of Internet content providers and Internet news portal, complained about obligation imposed upon them by moderate contents of comments made by readers on their websites, including offensive and vulgar ones following opinion criticizing misleading practices of two real estate sides. The ECTHR held in this case that while Internet news portals where not publisher they had to assume certain responsibilities under Art. 10.
In the case of Delphi v. Estonia (2015), the Court upheld liability of commercially-run Internet portal for offensive comments of readers because the case involved pivotal elements of “hate speech” and incitement to violence (i.e. unlawful speech).
It is a sign of our times that material posted on social media spreads fast and can have disastrous consequences – lies or fake news have triggered violence (random shooting in public places / Pizzagate) as recent there are recent examples of.
There is currently an on-going debate whether the global social media should resort to fact finding of material published on their sites to prevent dangerous or scurrilous views from being distributed.
Recent discussion has focused on paid political advertisements on social media, many containing blatant lies. Twitter decided to ban these ads to stop the spread of misinformation and Google has imposed strict limits on ad targeting.
Facebook, by contrast, recently said it would not fact-check or remove ads placed by politicians. Should Mark Zuckerberg the owner of Facebook censor speech because he doesn´t want his platform to be a vehicle of evil effects? Zuckerberg admits that there are two core principles at play here: Giving people a voice, then there is keeping the community safe. At times he promises that artificial intelligence technology will come up with algorithms that will allow the flagging of harmful speech without any input from fallible and prejudiced human judgment.
Zuckerberg’s position is that in a democracy it is not right for private companies to censor politicians or the news – people should be able to see for themselves what politicians are saying. – These views are based on the well-known “marketplace of ideas” principle that the remedy for harmful speech is more speech, not enforced silence.
The logic behind this view is that freedom of all speech — facts and lies and everything in between — enables a transparent public discourse, and that public discourse, over time, leads to “the truth” as bad ideas are discarded and good ideas win out. Many question the effectiveness of this model where it is left to the receivers to assess the veracity of information while private owners should stick to their hands-off policy in not censoring such material.
So, where is the line to be drawn? Should Facebook argue, as they have in the past, that theirs is a tech, not a media company and is therefore not responsible for the content that utilizes them as a conveyor. Or should they embrace a media identity and accept the responsibility and check whether the facts in political advertisements that are published on Facebook are true or false? – Zuckerberg’s position is that when it is not absolutely clear what to do, one should err on the side of greater expression.
Censoring speech can be a slippery slope. It constitutes a threat to democracy and the rule of law to have a giant corporation like Facebook or Google deciding what is permissible speech -while at the same time the threat of misinformation and abuse of social media by powerful financial actors is one of the gravest democratic concerns we face today.
[1] https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2019)005-e
[2] Algeria, Brazil, Chile, Costa Rica, Israel, Kazakhstan, the Republic of Korea, Kosovo, Kyrgyzstan, Morocco, Mexico, Peru, Tunisia and the USA.
[3] Norwood v UK (2004)
[4] Garaudy v France (2003)
[5] Seurot v France (2004)
[6] Jersild v. Denmark
[7] Vedjeland and Others v. Sweden, 2012.
