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UN Week – 10/8/12

October 26, 2012

This blog entry is written by members of our blogging community and expresses those experts’ views alone.

John and Douglas Carey, Editors

In this issue: hate speech and freedom of expression.

A study, A/67/357, by Frank La Rue, UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, dated September 7th, was included late last week in the daily online publication of General Assembly documents. It could not be more timely in view of recent violent reactions to an anti-Islam YouTube video.

The study’s summary starts as follows: “The focus of the present report is on hate speech and incitement to hatred, given the continuing challenge faced in identifying ways to reconcile the need to protect and promote the right to freedom of opinion and expression, on the one hand, and to combat discrimination and incitement to hatred, on the other.” Id. at 2.

The Rapporteur stakes out a forthright position when he asserts that, “freedom of expression is essential to creating an environment conducive to critical discussions of religious and racial issues and also to promoting understanding and tolerance by deconstructing negative stereotypes. * * * robust examination and criticism of religious doctrines and practices – even in a harsh manner – must also be allowed.” Id. at 11.

A significant distinction is made when the Rapporteur asserts that, “advocacy of hatred on the basis of national, racial or religious grounds is not an offence in itself. Such advocacy becomes an offence only when it also constitutes incitement to discrimination, hostility or violence, or when the speaker seeks to provoke reactions on the part of the audience.” Id. at 12.

Defamation of the founder of a major religion would seem inevitably to constitute incitement to hostility if not also to violence. Hostility could be either against believers in that religion or against the defamer and multitudes associated by the believers with the defamer.

“49. * * * The Special Rapporteur wishes to reiterate that the right to freedom of expression includes forms of expression that are offensive, disturbing and shocking. Indeed, since not all types of inflammatory, hateful or offensive speech amount to incitement, the two should not be conflated. 50. In any case, the Special Rapporteur reiterates that all hate speech laws should, at the very least, conform to the following elements outlined in the 2001 joint statement on racism and the media:[1]

(a) No one should be penalized for statements that are true;

(b) No one should be penalized for the dissemination of hate speech unless it has been shown that they do so with the intention of inciting discrimination, hostility or violence;

(c) The right of journalists to decide how best to communicate information and ideas to the public should be respected, in particular when they are reporting on racism and intolerance.

(d) No one should be subject to prior censorship;

(e) Any imposition of sanctions by courts should be in strict conformity with the principle of proportionality.” Id. at 14-15.

“The Special Rapporteur also reiterates his concern in relation to anti-blasphemy laws, which are inherently vague and leave the entire concept open to abuse. He wishes to underscore once again that international human rights law protects individuals and not abstract concepts such as religion, belief systems or institutions, as also affirmed by the Human Rights Committee (CCPR/C/GC/34, para. 48) Moreover, the right to freedom of religion or belief, as enshrined in relevant international legal standards, does not include the right to have a religion or belief that is free from criticism or ridicule. Indeed, the right to freedom of expression includes the right to scrutinize, debate openly, make statements that offend, shock and disturb, and criticize belief systems, opinions and institutions, including religious ones, provided the do not advocate hatred that incites hostility, discrimination or violence. The Special Rapporteur thus reiterates his call to all States to repeal anti-blasphemy laws and to initiate legislative and other reforms that protect the rights of individuals in accordance with international human rights standards.

“54. At the international level, the Special Rapporteur welcomes the shift from the notion of ‘defamation of religions” to the protection of individuals against incitement to religious hatred.”

Id. at 15-16.

“63. At the individual level, it is also important to remember the responsibility of each individual citizen to speak out against human rights violations. Often, extreme manifestations of hatred are the work of only a small group of people or are instigated by political opportunists, yet most people fail to react or respond. The task of combating hate speech should not, however, be left to those targeted by such speech. Because the Internet has made it possible for hate speech to proliferate much more easily, it becomes all the more important for each individual to take on the responsibility to denounce the speech publicly.” Id. at 18.

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