The European legal framework on hate speech, blasphemy and its interaction with freedom of expression

Nota Bene : At the request of the European Parliament LIBE committee, this study provides an overview of the legal framework applicable to hate speech and hate crime on the one hand and to blasphemy and religious insult on the other hand. It also evaluates the effectiveness of existing legislation in selected Member States and explores opportunities to strengthen the current EU legal framework, whilst fully respecting the fundamental rights of freedom of expression and freedom of thought, conscience and religion. The study also provides the European Parliament with guidelines on dealing with hate speech within the EU institutions. Link to the full study (446 pages) AUTHORS (*)

EXECUTIVE SUMMARY

Hate speech and hate crime incidents, including those committed online, are on the rise in Europe¹, despite the existence of a robust legal framework. This study provides an overview of the legal framework applicable to hate speech and hate crime, as well as to blasphemy and religious insult. It also evaluates the effectiveness of existing legislation in selected Member States and explores opportunities to strengthen the current EU legal framework, whilst fully respecting the fundamental rights of freedom of expression and freedom of thought, conscience and religion. The study also provides the European Parliament with guidelines on dealing with hate speech within the EU institutions.

Legal framework on hate speech and hate crime

At the EU level the legal framework includes inter alia: Council Framework Decision 2008/913/JHA (CFD)² (requiring Member States to penalise the most severe forms of hate speech and hate crime); and the Audiovisual Media Services (AMSD)³ and Electronic Commerce Directives (ECD)⁴ (controlling racist and xenophobic behaviours in the media and over the internet). It is important to view the EU measures aimed at addressing racism and xenophobia in the context of the broader EU legislative framework. Instruments aimed at supporting victims of crime and antidiscrimination measures are of particular relevance in this respect. These include Directive 2012/29/EU⁵ (Victims’ Support Directive) and the EU’s equality and anti-discrimination legislation (e.g. Directive 2000/43/EC⁶ (the Racial Equality Directive)). The Racial Equality Directive is complemented by other antidiscrimination legislative instruments such as Directive 2000/78/EC⁷ (the Employment Equality Directive) and Directives 2004/113/EC and 2006/54/EC⁸ (the Equal Treatment Directives). The EU also provides its support in practice by financing projects aimed inter alia at fighting hate speech and hate crime (for example under the Europe for Citizens Programme 2014-2020⁹ or the Rights, Equality and Citizenship Programme 2014-2020¹⁰).

The current study, developed on the basis of information gathered through seven national studies (Belgium, Germany, Greece, France, Hungary, the Netherlands and Sweden), has revealed some major drawbacks of the current legal framework applicable to hate speech and hate crime:

Shortcomings related to the transposition of the CFD include its incomplete transposition. Gaps in transposition mainly arise in connection with Article 1(1)(c) and 1(1)(d) of the CFD requiring the penalisation of the condoning, denial or gross trivialisation of genocide, crimes against humanity and war crimes and of Nazi crimes, respectively. To ensure effective protection against the most severe forms of hate speech and hate crime, it is recommended that the European Commission (EC) initiates infringement proceedings against Member States failing to transpose the CFD. Another issue derives from the transposition of the protected characteristics (grounds upon which hate speech and hate crime are prohibited) set out in the CFD, the AMSD and the ECD. As a general rule, Member States’ legislation refers to characteristics beyond those required by the CFD, the AMSD and the ECD. Member States have not taken a harmonised approach in this respect, thus the list of protected characteristics varies from Member State to Member State. Therefore an ambitious review of existing EU law might be necessary.

The use in practice of the CFD, the AMSD and the ECD is hindered by similar factors. Member States fail to collect sufficient reliable data on hate speech and hate crime incidents, which hinders the monitoring and assessment of the scale of the problem. This mainly results from the fact that data collection related competences are often divided between more than one authority, whose data collection efforts are not harmonised. To overcome the existing data gap, Member States with less developed or harmonised data collection methods could be encouraged to learn from Member States with good practices in place. The underreporting of hate speech and hate crime incidents by victims also hinders the understanding of the scale of the problem. Member States could be encouraged to raise awareness of the means of reporting incidents or to facilitate reporting through alternative means, such as anonymously, through the internet or victim support organisations.

The absence of shared understanding by practitioners of the applicable legal provisions seems to be an issue across the globe. The provision of clear guidance to practitioners, for example through awareness raising materials or training programmes, is therefore needed. These tools should provide practitioners with the skills necessary to duly investigate, prosecute and adjudicate hate speech and hate crime incidents.

In addition, applicable rules often fail to cover the liability of operators for the publication of hate content by bloggers or users of social media sites. The liability of bloggers and users of websites is often regulated; however these individuals are sometimes difficult to trace back, moreover it is often difficult to prove their motivation. The situation is an issue of concern given that internet remains a critical tool for the distribution of racist and hateful propaganda. To overcome the potential impunity of offenders it is recommended to regulate the liability of operators, thereby encouraging them to better control the content of blogs and social media websites. Alternatively Member States could reinforce their efforts of monitoring the content of websites. This however, should be done in a manner ensuring the sufficient respect of freedom of expression.

In most Member States, no concerns have arisen regarding the unnecessary limitation of freedom of expression by hate speech legislation, or vice versa. France constitutes an exception in this respect where debates over the borderline between the protection of human dignity and the freedom of expression have recently reignited, when the French Government announced its new campaign against online hate speech. Some considered the French measures as too restrictive of the freedom of expression¹¹. Guidance on where the borderline stands between the two fundamental rights is found in the case law of the European Courts of Human Rights (ECtHR). The ECtHR has ruled that in a democratic society, which is based on pluralism, tolerance and broadmindedness, freedom of expression should be seen as a right extending also to information and ideas that might offend, shock or disturb others. Any limitation of the freedom of expression must be proportionate to the legitimate aim pursued¹². Member States could also be encouraged to sign and ratify the Council of Europe’s (CoE) Additional Protocol to the Convention of Cybercrime¹³, which gives due consideration to freedom of expression, while requiring the criminalisation of racist and xenophobic acts committed online.

Finally, the absence of one comprehensive policy dealing with hate speech and hate crime is itself a matter that should be addressed. This could be addressed through the adoption of a comprehensive strategy for fighting hate speech and hate crime. The Strategy could define concrete policy goals for the Member States, targeting the most severe forms of hate speech and hate crime, including online crime. These policy goals could be set in light of the most important factors hindering the application of hate speech and hate crime legislation in practice. These factors, as explained in details above, include inter alia the insufficient transposition of applicable rules, the inadequate knowledge of practitioners of the rules applicable to hate speech and hate crime, the insufficient data collection mechanisms in place and the existence of severe underreporting. The Strategy should ensure the sufficient respect of freedom of expression and acknowledge that hate speech and hate crime are present in all areas of life (e.g. politics, media, employment).

Legal framework on blasphemy and religious insult

While being very active in the fight against hate speech and hate crime, the EU did not adopt specific instruments with regard to blasphemy and/or religious insult. Blasphemy laws are rarely used and blasphemy is rarely prosecuted in EU Member States. However, the existence of these laws may still have a negative effect on freedom of expression. Increasing attention has been reserved at international and EU levels to the assessment of possible clashes between blasphemy and religious insult laws and freedom of expression and freedom of thought, conscience and religion.

The current study, developed on the basis of information gathered through eight national studies (Austria, Denmark, Finland, Germany, Greece, Ireland, Italy and Poland) revealed that offence provisions applicable to blasphemy/religious insult often overlap with hate speech provisions, thereby calling into question the necessity to separately regulate blasphemy/religious insult. The study concludes that Member States should assess whether the need to protect public order by protecting individuals and groups belonging to minority religions could actually be better satisfied by reinforcing or duly implementing the existing national legislation on hate speech.

The use of applicable provisions in practice is also hindered by the absence of clear definitions of one or more crucial elements of the offence provisions (e.g. religious feelings, religion or religious denomination, lack of respect, disparagement or malice) or by the fact that the offence provisions might have a ‘chilling effect’ on the expression of opinions via public debates and art performances. This effect might manifest in censorship and self-censorship of artists. Due to the provisions’ possible clashes with constitutionally guaranteed principles and in view of the diversity of religious beliefs in Europe and of the democratic principle of the separation of state and religion, it seems necessary to reconsider the criminalisation of blasphemy/religious insult.

In some Member States, media self-regulations specifically address blasphemy/religious insult. However, their scope of application and effect vary considerably. The national studies revealed that self-regulations could potentially better protect freedom of expression and freedom of religion, conscience and thought (also with respect to atheist or agnostic groups) than criminal law rules, therefore the adoption of such rules should be promoted.

Press complaints bodies, media ombudspersons or other self-regulatory bodies

dealing with blasphemy and or religious insults are not present in all Member States. Such bodies should be created, where they do not yet exist, and should discuss possible remedies for offences to religion.

Guidelines on addressing hate speech within the EU institutions

The study provides an overview of the legal framework that would apply to hate speech offences committed by officials of EU institutions and Members of the European Parliament and Commission and suggests ways to effectively deal with such occurrences.

Although general provisions ban the use of offensive language including insulting and/or defamatory remarks there is no provision specifically tackling hate speech within the EU institutions. Therefore, it is recommended that the EU institutions consider introducing an explicit reference to hate speech in the Staff Regulations and Annex IX of the said Regulations as well in all pertinent legal standards. Additionally, detailed standards of conduct of officials of EU institutions and Members of the Commission and Parliament, including in relation to the use of language, should be defined in the form of Guidelines.

Different liability regimes apply to hate speech offences depending on whether the offence is perpetrated by officials or Members of the Parliament and Commission. Members of the European Parliament enjoy absolute immunity for votes cast and opinions expressed in the performance of their duties (Article 8 of the Protocol on the Privileges and Immunities of the European Union). Absolute immunity may not be waived or renounced and applies even after the end of the mandate. Therefore, MEPs may not be subject to prosecution   for  hate  speech  if  the  statements  in  question  have  been   made  in  the performance of their duties . As regards statements which are not linked to parliamentary duties and thus fall outside the scope of Article 8 of the Protocol, Article 9 of the Protocol granting relative immunity comes into play. The scope of relative immunity however partly depends on national law. Relative immunity may be waived by the European Parliament. The case-law of the Court of Justice (CJEU) clarifies what amounts to an exercise of a Member’s duties. It is recommended that interpretations of the scope of absolute immunity ensure a balance between the freedom of expression of Members of the European Parliament and the fundamental rights of citizens (e.g. right to access to justice) who become victims of insulting statements.

Stakeholders consulted indicated that reactions to hate speech incidents are often weak and the sanctions applied in practice are low. Existing rules should be reviewed to ensure that sanctions are sufficiently effective, dissuasive and proportionate to tackle hate speech offences. EU institutions could qualify hate speech offences as ‘serious’ cases of misconduct in the Staff Regulations and Annex IX of the said Regulations.

(*) Dr Emma Psaila, Ms Katalin Adamis-Császár, Ms Marilena Verbari, Ms Vanessa Leigh, Ms Virginia Dalla Pozza

National studies on blasphemy and religious insult: Austria: Iris Stöckl (University of Vienna, Austria) Germany: Dr Andreas Hieronymus (Freelancer, Germany) Denmark: Pia Justesen (Justadvice LLC, Denmark) Greece: Athina Kosma (Milieu Limited, Belgium) Finland: Dr Heli Askola (Monash University, Australia) Ireland: Gillian Kelly (Milieu Limited, Belgium) Italy: Marilena Verbari (Milieu Limited, Belgium) Poland: Aleksandra Gliszczyńska-Grabias (Poznan Human Rights Centre, Institute of Legal Studies of the Polish Academy of Sciences, Poland) SENIOR EXPERTS Prof. David Nash (Oxford Brookes University, United Kingdom) Prof. Paul Iganski (Lancaster University, United Kingdom)
 

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